Exhibit (a)(ii)
Amended and Restated Deposit Agreement,
dated as of December 7, 1999
EXECUTION COPY
AMENDED AND RESTATED
DEPOSIT AGREEMENT
by and among
AKTIEBOLAGET
SKF
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of December 7, 1999
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Affiliate .........................................................1
SECTION 1.2 American Depositary Share(s) and ADS(s) ...........................1
SECTION 1.3 ADS Record Date ...................................................2
SECTION 1.4 Beneficial Owner ..................................................2
SECTION 1.5 Business Day ......................................................2
SECTION 1.6 Commission ........................................................2
SECTION 1.7 Company ...........................................................2
SECTION 1.8 Custodian .........................................................2
SECTION 1.9 Deliver and Delivery ..............................................2
SECTION 1.10 Deposit Agreement ................................................2
SECTION 1.11 Depositary .......................................................2
SECTION 1.12 Deposited Securities .............................................2
SECTION 1.13 Dollars and $ ....................................................3
SECTION 1.14 DTC ..............................................................3
SECTION 1.15 DTC Participant ..................................................3
SECTION 1.16 Exchange Act .....................................................3
SECTION 1.17 Foreign Currency .................................................3
SECTION 1.18 Holder ...........................................................3
SECTION 1.19 Krona, SEK or kronor .............................................3
SECTION 1.20 Pre-Release ......................................................3
SECTION 1.21 Principal Office .................................................3
SECTION 1.22 Receipt(s); American Depositary Receipt(s) and ADR(s) ............3
SECTION 1.23 Registrar ........................................................3
SECTION 1.24 Restricted Securities ............................................4
SECTION 1.25 Securities Act ...................................................4
SECTION 1.26 Share Registrar ..................................................4
SECTION 1.27 Shares ...........................................................4
SECTION 1.28 Sweden ...........................................................4
XXXXXXX 0.00 Xxxxxx Xxxxxx ....................................................4
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS
SECTION 2.1 Appointment of Depositary .........................................5
SECTION 2.2 Form and Transferability of Receipts ..............................5
SECTION 2.3 Deposit with Custodian ............................................6
SECTION 2.4 Registration of Shares ............................................7
SECTION 2.5 Execution and Delivery of Receipts ................................8
SECTION 2.6 Transfer of Receipts; Combination and Split-up of Receipts ........8
SECTION 2.7 Surrender of Receipts and Withdrawal of Deposited Securities ......9
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc ...............11
SECTION 2.9 Lost Receipts, etc ...............................................12
SECTION 2.10 Cancellation and Destruction of
Surrendered Receipts; Maintenance of Records ....................12
SECTION 2.11 Partial Entitlement ADSs ........................................12
ARTICLE III
CERT AIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information .......................13
SECTION 3.2 Liability for Taxes and Other Charges ............................13
SECTION 3.3 Representations and Warranties on Deposit of Shares ..............14
SECTION 3.4 Compliance with Information Requests .............................14
SECTION 3.5 Ownership Restrictions ...........................................14
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions ...............................................15
SECTION 4.2 Distribution in Shares ...........................................15
SECTION 4.3 Elective Distributions in Cash or Shares .........................16
SECTION 4.4 Distribution of Rights ...........................................16
SECTION 4.5 Distributions Other Than Cash, Shares or Rights ..................18
SECTION 4.6 Distributions with Respect to Deposited Securities in
Bearer Form ......................................................19
SECTION 4.7 Conversion of Foreign Currency ...................................19
SECTION 4.8 Fixing of Record Date ............................................20
SECTION 4.9 Voting of Deposited Securities ...................................20
SECTION 4.10 Changes Affecting Deposited Securities ..........................21
SECTION 4.11 Available Information ...........................................22
SECTION 4.12 Reports .........................................................22
SECTION 4.13 List of Holders .................................................22
SECTION 4.14 Taxation ........................................................22
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar ........23
SECTION 5.2 Exoneration ......................................................24
SECTION 5.3 Standard of Care .................................................25
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary .............................................25
SECTION 5.5 The Custodian ....................................................26
SECTION 5.6 Notices and Reports ..............................................27
SECTION 5.7 Issuance of Additional Shares, ADSs etc ..........................27
SECTION 5.8 Indemnification ..................................................28
SECTION 5.9 Fees and Charges of Depositary ...................................29
SECTION 5.10 Pre-Release .....................................................30
SECTION 5.11 Restricted Securities Owners ....................................31
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. ............................................31
SECTION 6.2 Termination ......................................................31
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts .....................................................33
SECTION 7.2 No Third-Party Beneficiaries .....................................33
SECTION 7.3 Severability .....................................................33
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect .........33
SECTION 7.5 Notices ..........................................................33
SECTION 7.6 Governing Law and Jurisdiction ...................................34
SECTION 7.7 Assignment .......................................................35
SECTION 7.8 Compliance with U.S. Securities Laws .............................35
SECTION 7.9Titles ............................................................35
EXHIBIT A Form of Receipt ...................................................A-I
EXHIBIT B Fees Schedule .....................................................B-1
AMENDED AND RESTATED
DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of December 7, 1999, by
and among (i) AKTIEBOLAGET SKF, a corporation organized and existing under the
laws of the Kingdom of Sweden, and its successors (the "Company"), (ii)
CITIBANK, N.A., a national banking association organized under the laws of the
United States of America, acting in its capacity as depositary, and any
successor depositary hereunder (the "Depositary"), and (iii) all Holders and
Beneficial Owners of American Depositary Shares evidenced by American Depositary
Receipts issued hereunder (all such capitalized terms as hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Deposit
Agreement, dated as of September 1, 1985, as amended by Amendment No. I to
Deposit Agreement, dated as of May 8, 1989 (the "Original Deposit Agreement"),
pursuant to which a facility was established to provide for the deposit of
Shares (as defined below) and the creation of American Depositary Shares (as
defined below) representing the Shares so deposited, for the execution and
delivery of American Depositary Receipts (as defined below) evidencing such
American Depositary Shares; and
WHEREAS, the Company and the Depositary deem it necessary and desirable to
amend and restate the Original Deposit Agreement, and the form of American
Depositary Receipt annexed thereto as Exhibit A, pursuant to Section 6.01
thereof upon the terms set forth herein:
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)" American
Depositary Shares(s) shall mean with respect to any American Depositary Receipt,
the rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and the American Depositary Receipts issued
hereunder. Each American Depositary Share shall represent one Share, until
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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 Shares are not 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 m
Section 4.8.
SECTION 1.4 "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 1.5 "Business Day" shall mean any day on which banks m Stockholm,
Sweden and New York City are open for business.
SECTION 1.6 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United States.
SECTION 1.7 "Company" shall mean Aktiebolaget SKF, a corporation organized
and existing under the laws of the Kingdom of Sweden, and its successors.
SECTION 1.8 "Custodian" shall mean, as of the date hereof, the principal
Stockholm office of either Skandinaviska Enskilda Banken or Svenska
Handelsbanken, as agents of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may be appointed by the
Depositary with notice to the Company pursuant to the terms of Section 5.5 as a
successor or an additional custodian or custodians hereunder. The term
"Custodians" shall mean all custodians, collectively, as the context may
require.
SECTION 1.9 "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, if
available.
SECTION 1.10 "Deposit Agreement" shall mean the Original Deposit Agreement
as amended and restated by this Amended and Restated Deposit Agreement and all
exhibits hereto, as the same may from time to time be further amended and
supplemented in accordance with the terms hereof.
SECTION 1.11 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.12 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the
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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 5.1 0 hereof shall not constitute
Deposited Securities.
SECTION 1.13 "Dollars" and"$" shall refer to the lawful currency of the
United States.
SECTION 1.14 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.15 "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 1.16 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.17 "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.18 "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 mayor 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.
SECTI ON 1.19 "Krona", "SEK" or "kronor" shall refer to the lawful
currency of Sweden.
SECTION 1.20 "Pre-Release" shall have the meaning set forth in Section
5.10 hereof.
SECTION 1.21 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.22 "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 1.23 "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
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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. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit 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 1.24 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which are either (i) 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) held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) subject to other
restrictions on sale or deposit under the laws of the United States, Sweden, or
under a shareholder agreement or the Articles of Association and By-Laws of the
Company 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 (a) covered by an effective resale registration
statement or (b) exempt from the registration requirements of the Securities Act
(as hereinafter defined), and the Shares are not, when held by such person,
Restricted Securities.
SECTION 1.25 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.26 "Share Registrar" shall mean Vardepapperscentralen VPC
Aktiebolag ("VPC"), a company organized under the Swedish Companies Act of 1975,
which carries out the duties of registering for the Shares, or any successor as
Share Registrar for such Shares appointed by the Company.
SECTION 1.27 "Shares" shall mean the Company's Non-Restricted B Shares,
SEK 2.50 nominal value per Share, validly issued and outstanding and fully paid
and may include evidence of the right to receive Shares; provided that in no
event shall Shares include evidence of the right to receive Shares with respect
to which the full purchase price has not been paid or Shares as to which
preemptive rights have theretofore not been validly waived or exercised;
provided further, however, that if there shall occur any change in nominal
value, split-up, consolidation, reclassification, conversion or any other event
described in Section 4.11, in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the extent permitted by law, represent the
successor securities resulting from such change in nominal value, split-up,
consolidation, exchange, conversion, reclassification or event.
SECTION 1.28 "Sweden" shall mean the Kingdom of Sweden.
SECTION 1.29 "United States" shall have the meaning assigned to it under
Regulation S under the Securities Act.
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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 confirms the
appointment of Citibank, N.A. 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 Beneficial Owner, upon
acceptance (or retention) 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 actions 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 of American Depositary Shares shall be evidenced by definitive
Receipts which shall be engraved, printed, lithographed or produced in such
other manner as may be agreed upon by the Company and the Depositary. Receipts
may be issued under the Deposit Agreement in denominations of any whole number
of ADSs. The Receipts shall be substantially in the form set forth in Exhibit A
to the Deposit Agreement, with any appropriate insertions, modifications and
omissions, in each case as otherwise contemplated in the Deposit Agreement or
required by law. Receipts shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. No
Receipt and no ADS evidenced thereby shall be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such 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, as the case may be,
shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary. 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 the
Depositary (or any other depositary) and the Company and 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 (i) as may be necessary to enable the
Depositary to perform its obligations hereunder,
5
(ii) as 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 may be traded, listed or quoted or to conform with
any usage with respect thereto, (iii) as 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) as 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 Receipt,
title to a Receipt (and to each American Depositary Share evidenced thereby),
when properly endorsed or accompanied by proper instruments of transfer, shall
be transferable by delivery of the Receipt as a certificated security under the
laws of the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, 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 American Depositary Shares are eligible for
clearance and settlement through 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 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 Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian, and
(A) (in the case of Shares represented by certificates issued in registered
form) appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian or, (in the case of Shares represented by certificates in
bearer form) of the requisite coupons pertaining thereto, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence
6
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) if the Depositary so requires,
evidence satisfactory to the Depositary (which may be an opinion of counsel)
that all necessary approvals have been granted by, or there has been compliance
with the rules and regulations of, any applicable governmental agency in Sweden,
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 nor (b) any fractional Shares or
fractional Deposited Securities nor (c) a number of Shares or Deposited
Securities which upon application of the ADS to Shares ratio would give rise to
fractional ADSs. No Share shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
Sweden and any necessary approval has been granted by any governmental body in
Sweden, 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.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
together with the other instruments herein specified, for the purpose of
forwarding such Shares to the Custodian for deposit hereunder.
SECTION 2.4 Registration of Shares. The Depositary shall instruct the
Custodian, upon each delivery of certificates representing Shares being
deposited hereunder (or other Deposited Securities pursuant to Article IV
hereot), 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 Share Registrar for
transfer and registration of the Shares (as soon as transfer and registration
can be accomplished and at the expense of the person for whom the deposit is
made) in the name of the Depositary, the Custodian or a nominee of either.
Deposited Securities shall be held by the Depositary or by a
7
Custodian for the account and to the order of the Depositary or a nominee, in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
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 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 Articles of Association and By-laws of the
Company.
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 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Depositary, Custodian
or a nominee of either on the shareholders' register maintained by or on behalf
of the Company if registered Shares have been deposited or if deposit is made by
book-entry transfer, confirmation of such transfer in the books of the bookentry
settlement entity has been received, (iii) that all required documents have been
received, and (iv) the person or persons to whom or upon whose Written order
American Depositary Receipts 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
American Depositary Shares representing the Shares so deposited to or upon the
order of the person(s) nan1ed 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 making a deposit and the
issuance of American Depositary Shares and execution and delivery of 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. The
Depositary shall only issue American Depositary Shares in whole numbers and
deliver American Depositary Receipts evidencing whole numbers of American
Depositary Shares. 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 Registrar shall register the transfer of Receipts (and
of the ADSs represented thereby) on the books maintained for such purpose, and
the Depositary shall cancel such Receipts, execute new Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts cancelled by
the depositary, cause the Registrar to countersign such new Receipts and Deliver
such new Receipts to or upon the order of the person entitled thereto, if each
of the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered Receipts have been
8
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Receipts have been duly stamped (if required by
the laws of the State of New York or of the United States), and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as set forth in Section 5.9 and
Exhibit B hereto) have been paid, subject, however, in each case, to the terms
and conditions of the applicable Receipts, of the Deposit Agreement and of
applicable law, in each case in effect at the time thereof.
(b) Combination & Split Up. The Registrar shall register the split-up or
combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose, and the Depositary shall cancel such Receipts,
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the receipts cancelled by the
Depositary, cause the Registrar to countersign such new Receipts and Deliver
such new Receipts to or upon the order of the Holder thereof, if each of the
following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
the Deposit Agreement and applicable law, in each case, as in effect at the time
thereof.
(c) Co-Transfer Agents. The Depositary may, with the approval of the
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the approval of the Company. 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 hereof) 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 and By-laws, Section
7.8 hereof 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
9
Securities shall be made without unreasonable delay by (a) (i) delivery into the
VPC account of such Holder, in the case of book-entry Deposited Securities, or
as ordered by such Holder, or (ii) the Delivery of certificates in the name of
such Holder, or as ordered by such Holder, and (b) the Delivery to such Holder,
or as ordered by such Holder, of any other property and cash to which such
Holder is then entitled in respect of such American Depositary Shares, subject
to the other terms of this Section 2.7. 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 registered form)
or by book-entry delivery of such American Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian, subject to
Sections 2.8, 3.1, 3.2, 5.9, and to the other terms and conditions of this
Deposit Agreement, to the Articles of Association and By-laws of the Company,
and 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 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 (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 cash distributions with respect to the
Deposited Securities represented by such American Depositary Shares, or of any
proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
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
10
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 hereof, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal 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.
(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 Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange on
which the Receipts or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or the Receipts to the contrary, the surrender of outstanding American
Depositary Shares and withdrawal of Deposited Securities may not be suspended or
refused, except as permitted in General Instruction I.A. (1) to Form F-6 (as
such instructions may be amended from time to time) in connection with (i)
temporary delays caused by closing transfer books of the Depositary or the Share
Registrar or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities.
11
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 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
canceled by the Depositary. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
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 ADSslADRs",
respectively). When Partial Entitlement Shares become Full Entitlement Shares,
the Depositary shall (a) cause the Custodian to transfer the Partial Entitlement
Shares into the account of the Full Entitlement Shares, (b) take such actions as
are necessary to remove the distinctions between (i) the Partial Entitlement
ADRs m1d ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs on
the other and (c) 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. 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.
12
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 and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the 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 Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations 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 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 Depository or a 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, the Holder and the Beneficial Owner remaining liable for
any deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 2.8 (c) the withdrawal
of Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and
13
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian,
and any of their agents, officers, employees and Affiliates for, and to hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do and (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage adverse claim, and are not, and the American Depositary Shares issuable
upon such deposit will not be, Restricted Securities and 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 thus Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to Swedish law, the
rules and requirements of the Stockholm stock exchange, and any other stock
exchange on which the Shares are, or will be, registered, traded or listed or
the Articles of Association and By-laws of the Company, 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, at the Company's expense, any such request from the
Company to the Holders and to forward to the Company any such responses to such
requests received by the Depositary.
SECTION 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement, the Company may restrict transfer of Shares where such
transfer may result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association and By-laws of the Company. The
Company may also restrict, in such manner s it deems appropriate, transfer of
American Depositary Shares where such transfer may result in the total number of
Shares represented by the American Depositary Shares owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sale
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of American
Depositary Shares, the removal or limitation of voting rights or the mandatory
sale or disposition
14
on behalf of a Holder or Beneficial Owner of the Shares represented by the
American Depositary Shares held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable law and the Articles of Association and By-laws of the Company.
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
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.7)
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 entitled thereto as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of 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 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), 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 permitted by law, thenceforth also represent rights
15
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 net proceeds
upon the terms described in Section 4.1. In the event that the Depositary
determines that any distribution in property (including Shares) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, or, if the Company, in the fulfillment of its obligation under Section
5.7 hereof, has furnished an opinion of U.S. counsel determining that Shares
must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of such (a) taxes and (b) fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1. 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 60 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders, 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 Holders. The Depositary shall
make such elective distribution available to Holders only if (i) the Depositary
shall have determined that such distribution is reasonably practicable and (ii)
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.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the
16
holders of the Deposited Securities rights to subscribe for additional Shares
(or any rights of any other nature), 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 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 requested that such rights be made available to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied, 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 to distribute such rights (by means of warrants or
otherwise) and 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 request the Depositary to
make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5.7 or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity or otherwise, at such place and upon
such terms (including public and 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 the 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 f01ih
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 Holders on behalf of the Company in connection with the
rights distribution.
17
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate would be required in order
for the Company to offer such rights or such securities to Holders and to sell
the securities represented by such rights, the Depositary will not distribute
such rights to the Holders unless and until a registration statement under the
Securities Act covering such offering is in effect. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to
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 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 obtain 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.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and
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 to be made to Holders, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, in determining whether
such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) it has been requested to
do so by the Company, (ii) it has received satisfactory documentation within the
terms of Section 5.7, and (iii) it has determined that such distribution is
reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
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(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests the Depositary not to make such
distribution, (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 (i) cause the proceeds of such sale, if any, to be converted into Dollars
and (ii) distribute the proceeds of such conversion received by the Depositary
(net of 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, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall 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 requirements) in accordance with
the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
19
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 may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
SECTION 4.8 Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or otherwise), 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, after consultation with the Company, fix a record date (the
"ADS Record Date") for the determination of the Holders of Receipts who shall be
entitled to receive such dividend, distribution, 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 fix the ADS Record Date as close as practicable to the
applicable record date for the Deposited Securities (if any). Subject to
applicable law, the provisions of Section 4.1 through 4.7 and the other terms
and conditions of this Deposit Agreement, only the Holders of Receipts at the
close of business on such ADS Record Date shall be entitled to receive such
distribution, give such voting instructions, receive such notice or
solicitation, or otherwise take action.
SECTION 4.9 Voting of Deposited Securities. Upon receipt of notice of any
meeting of holders of Shares or other Deposited Securities, the Depositary
shall, as soon, as practicable, fix a record date as provided in Section 4.8 for
determining the Holders entitled to give instructions for the exercise of voting
rights and mail to the Holders a notice which shall contain (a) such information
as is contained in such notice of meeting and (b) a statement (in a form
provided by the Company) that a Holder of Receipts at the close of business on
the specified record date will be entitled, subject to any applicable provisions
of Swedish law and of the Articles of Association of the Company (which
provisions, if any, shall be summarized in pertinent part), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented thereby. A precondition for
exercising any such voting rights is that such Holder is registered in the
register of stockholders of the Company not less than ten calendar days Prior to
the date of the meeting and gives notice of his intention to attend the meeting,
in person or by proxy, not later than a date (being not earlier than
20
five days before the meeting, not including Sundays and legal holidays in
Sweden) specified in the notice convening the meeting. Pursuant to these
requirements, Holders will be entitled to deposit their ADSs in a blocked
account with the Depositary and to instruct the Depositary to request a
Custodian to cause the equivalent underlying Shares to be registered in the
Holder's name and to give notice to the Company of the Holder's intention to
attend the meeting and to vote the Shares at such a meeting in person or by
proxy. Such notice shall also contain a statement that a Holder who deposits his
ADSs in a blocked account with the Depositary and who instructs a Custodian to
register in the Holder's name the equivalent underlying Shares for the purpose
of voting such Shares at any meeting of holders of Shares may instruct the
Depositary, immediately following any such meeting, to request such Custodian to
reregister the Shares in the name in which such Shares were previously
registered and to release to the Holder from the blocked account the ADSs
representing such Shares.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
SECTION 4.10 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or 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 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. 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 or corporate change. The Company agrees
to amend, jointly with the Depositary, 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
21
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 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
informant ion 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 Trade Center,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 4.12 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail 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 furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
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 the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. 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
22
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 hall11less from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
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 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 and the regulations
issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, 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 Registrar 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 Registrar's knowledge, for the
23
purpose of communicating with Holders of such Receipts in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7 _8
hereof
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, with the approval of
the Company, 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 with the approval of the Company.
SECTION 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Sweden or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or any possible criminal or civil
penalties or restraint, or any provision, present or future of the Articles of
Association and By-laws of the Company or any provision of or governing any
Deposited Securities, or any act of God or war or other circumstances beyond its
control (including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Association and By-laws of the Company or provisions of or governing
Deposited Securities, (iii) for any action or inaction in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of 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, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
24
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 its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
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 liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement. The Depositary shall not incur any liability for any failure
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in
25
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 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
5.08 and 5.09), (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, after consultation with the Company, may from time to time appoint
one or more custodians hereunder. The Depositary has initially appointed
Skandinaviska Enskilda Banken and Svenska Handelsbanken as Custodians for the
purpose of this Deposit Agreement. A Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Shares for which the Custodian acts as custodian and
shall be responsible solely to it. If any Custodian resigns or is discharged
from its duties hereunder with respect to any Deposited Securities and no other
Custodian has previously been appointed hereunder, the Depositary shall promptly
appoint a substitute custodian that is organized under the laws of Sweden. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may appoint
an additional 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, 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
26
the successor depositary. The successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority to act on the direction of such successor
depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association and By-laws of the Company
that may be relevant or pertain to such notice of meeting or be the subject of a
vote thereat.
The Company will also transmit to the Depositary (a) an English language
version 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) the English-language versions of the Company's annual and
semi-annual 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 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
27
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 the 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 Swedish counsel stating that (l) making the transaction available
to Holders and Beneficial Owners does not violate the law of Sweden and (2) all
requisite regulatory consents and approvals have been obtained in Sweden;
provided, however, in each case, that no such opinion shall be required in the
event of an issuance of Shares as a bonus, share split or similar event. 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 issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act (and, if applicable, the Exchange Act) or have been registered under the
Securities Act (and, if applicable, the Exchange Act) and such registration
statement has been declared effective.
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any loss, liability, tax, charge or expense
of any kind whatsoever (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary under the terms of this Deposit Agreement and of the Receipts, as the
same may be amended, modified or supplemented from time to time due to the
negligence or bad faith of the Depositary or any of its directors, officers,
employees or subsidiaries.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any loss, liability, tax, charge or expense
of any kind whatsoever (including, but
28
not limited to, the reasonable fees and expenses of counsel) that may arise out
of acts performed or omitted (a) in accordance with the provisions of this
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time (i) by the Depositary, the Custodian or any of
their respective directors, officers, employees or subsidiaries, except to the
extent that 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 or subsidiaries or (b) by the Company or any of
its directors, officers, employees or subsidiaries in connection with any
registration statement under the Securities Act in respect of Receipts, American
Depositary Shares or Shares, except to the extent such loss, liability, tax,
charge or expense arises out of information (or omissions from such information)
furnished in writing to the Company by the Depositary or any of its directors,
officers, employees or subsidiaries.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders and
the Beneficial Owners agree to pay to the Depositary the Depositary's fees
identified as payable by them respectively on the Fee Schedule attached hereto
as Exhibit B. In addition, Holders and Beneficial Owners and persons depositing
Shares shall be required to pay (to the extent applicable) the following
charges: (i) taxes (including applicable interest and penalties) and other
governmental charges, (ii) such registration fees as may from time to time be in
effect for the registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited Securities to
or from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals of Deposited Securities, (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 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 (vi) the fees and expenses incurred by the Depositary
in connection with the delivery of Deposited Securities.
29
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 sale account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Pre-Release. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares or Receipts; provided, however, that the Depositary may (i) issue
Receipts prior to the receipt of Shares pursuant to Section 2.3 and (ii) deliver
Shares prior to the receipt and cancellation of Receipts pursuant to Section
2.7, including Receipts 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 Receipts in lieu of Shares under (1) above and
receive Shares in lieu of Receipts 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 Receipts or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or Receipts that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or Receipts in its records and to hold such Shares or
Receipts in trust for the Depositary until such Shares or Receipts are delivered
to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares or Receipts, and (z)
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of Receipts and Shares involved in such Pre-Release Transactions at
anyone time to thirty percent (30%) of the Receipts outstanding (without giving
effect to Receipts 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 Receipts and Shares involved in Pre-Release Transactions with
anyone person on a case-by-case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
30
SECTION 5.11 Restricted Securities Owners. Upon each issuance by the
Company of any securities that are Restricted Securities, the Company agrees to
advise in writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. 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
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the
31
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.7 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 as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set f01ih 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 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 six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement with respect to the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes 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.
32
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
SECTION 7.3 Severability. If anyone 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 this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Aktiebolaget SKF X-0x0 00, Xxxxxxxx, Xxxxxx, Attention: Company
Secretary, 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 Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
33
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 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 Xxxxxxx Xxxxxxx, Secretary and
General Counsel-SKF USA, Inc. (the "Agent") now at 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000-0000 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 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.
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
34
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 LA.(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.
35
IN WITNESS WHEREOF, AKTIEBOLAGET SKF and CITIBANK, N.A. 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.
AKTIEBOLAGET SKF
(publ.)
By: /s/ Xxxxxx Xxxxxxxx /s/ Tore Bertilsson
---------------------------------------------------
Name: Xxxxxx Xxxxxxxx Tore Bertilsson
Title: Director, Group Legal Director, Group Finance
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
36
Number CUSIP Number: 000000000
American Depositary Shares (Each
American Depositary Share
representing one Fully Paid
Non-Restricted B Share, SEK 2.50
nominal value each)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT for
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED NON-RESTRICTED B SHARES of
AKTIEBOLAGET SKF
(Incorporated under the laws of Sweden)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that _____________________is the owner of
________________________American Depositary Shares (hereinafter "ADSs"),
representing deposited non-restricted B shares, each of nominal value SEK 2.50,
including evidence of rights to receive such non-restricted B shares (the
"Shares") of Aktiebolaget SKF, a corporation incorporated under the laws of
Sweden (the "Company"). As of the date of the Deposit Agreement (hereinafter
defined), each ADS represents one Share deposited under the Deposit Agreement
with one of the Custodians which at the date of execution of the Deposit
Agreement are Skandinaviska Enskilda Banken and Svenska Handelsbanken (the
"Custodians"). The ratio of American Depositary Shares to Shares is subject to
amendment as provided in Article IV of the Deposit Agreement. The Depositary's
Principal Office is located at III Xxxx 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 Amended and Restated Deposit
Agreement, dated as of _________________________________ 1999 (as amended from
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and becomes bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights and obligations of Holders and Beneficial Owners
of Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time, received in respect of such Shares and held thereunder (such
A-1
Shares, securities, property and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and the Custodians.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Association
and Bylaws of the Company (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 American Depositary
Shares are eligible for clearance and settlement through 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 (I 0) hereof
and in Section 5.9 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in cOill1ection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement
the Company's Articles of Association and By-laws, 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.
Subject to the last sentence of this paragraph, such Deposited Securities may be
delivered in registered form or by electronic delivery. ADSs may be surrendered
for the purpose of withdrawing Deposited Securities by delivery of a Receipt
evidencing such ADSs (if held in registered form) or by bookentry delivery of
such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian, subject to the
terms and conditions of the Deposit Agreement, the Articles of Association and
By-laws of the Company, and the provisions of or governing the Deposited
Securities and applicable laws, now or hereafter in effect, to or upon the
written order
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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 shall not accept for surrender a Receipt evidencing ADSs
representing less than one Share. The Depositary may, in its discretion, refuse
to accept for surrender a number of ADSs representing 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 its discretion, either (i) issue
and deliver to the person surrendering such Receipt a new Receipt evidencing
ADSs 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 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. 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 and upon payment of the applicable fees
and charges of the Depositary, subject to the terms and conditions of this
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.
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(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 delivery of
Receipts against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the delivery of Receipts against the deposit of
particular Shares may be withheld, or the registration of transfer of Receipts
in particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Company, Depositary, a Registrar or the Share Registrar
are closed or if any such action is deemed necessary or advisable by the
Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any 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 to the contrary, the surrender of outstanding
ADSs evidenced by Receipts and withdrawal of Deposited Securities may not be
suspended except as permitted by General Instruction LA.(l) to Form F-6 (as such
Instructions may be amended from time to time) in connection with (i) temporary
delays caused by closing the transfer books of the Depositary or the Company (or
the Share Registrar) or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or the Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Swedish law, the rules and requirements of the Stockholm
Stock Exchange or the Articles of Association and By Laws of the Company, 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 persons then
or previously interested in such ADSs and the nature of such interest and
various other matters whether or not they are Holders and/or Beneficial Owner at
the time of such request. The Depositary agrees to use reasonable efforts to
comply with written instructions received from the
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Company requesting the Depositary 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) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association and By-laws of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of ADSs where such transfer may result in the total number of Shares represented
by the ADSs owned by a single Holder or Beneficial Owner to exceed any such
limits. The Company may, in its sale discretion, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including but not
limited to the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of Association
and By-laws of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable by the Depositary or a 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 Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of the Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner hereof remaining liable for any deficiency. The
Custodian may refuse the 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 any of their agents, employees and Affiliates
for, and hold each of then harmless from, any claims with respect to taxes
(including applicable interest and penalties thereon) arising from any tax
benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares, have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim
and are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities and 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
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authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement.
Subject to Article (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 certificates are executed or such representations and warranties
are made or such information and documentation are provided.
(10) Charges of Depositary. The Depositary shall charge any party to whom
Receipts are issued (including, without limitation, deposit or issuance pursuant
to a stock dividend or stock split declared by the Company or an exchange of
stock for the Shares or Deposited Securities, or a distribution of Receipts
pursuant to Section 4.3 or 4.11 of the Deposit Agreement), or who surrenders
Receipts a fee of U.S. $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the issuance or surrender, respectively, of a Receipt. In
addition the Depositary shall charge to the Holders a fee of U.S. $2.00 or less
per 100 American Depositary Shares (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including but not limited
to, Sections 4.2 through 4.5 thereof, and $5.00 or less per 100 American
Depositary Shares (or portion thereof) in case of a stock dividend made pursuant
to the Deposit Agreement, including but not limited to Section 4.2 through 4.5
thereof. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. In addition, Holders, Beneficial Owners, and
persons depositing Shares will be requested to pay taxes and other governmental
charges, registration fees, cable, telex and facsimile transmission and delivery
expenses, and customary and other expenses incurred by the Depositary in
connection with its obligations and duties under the Deposit Agreement. 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
concerning the nature and amount of such charges and expenses. All fees and
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. The charges and expenses of the Custodian,
nominee or any other agent of the Depositary are for the sole account of the
Depositary. These charges may be changed in the manner indicated in Article (21)
of this Receipt.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and
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to each ADS evidenced hereby), when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Company and the Depositary, notwithstanding any
notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for all
purposes, and neither the Depositary nor the Company shall have any obligations
or be subject to any liability hereunder or under the Deposit Agreement to any
holder of a Receipt unless such holder is the Holder (that is, the person
registered on the books of the Depositary).
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar.
(13) 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 for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of 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 Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to A11icle 23
hereof.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
--------------------------- ---------------------------
Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS OF
THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights, securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and distribute the amount thus received (net of applicable fees and
charges of, and expenses incurred by, the Depositary and taxes withheld) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of ADSs representing such Deposited Securities held as of the ADS Record Date.
The Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority. 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 cause such Shares to be
deposited with 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, 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 shall represent in aggregate the number of Shares
received as such dividend or free distribution, subject to the terms of this
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 sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to
A-8
withhold, or, if the Company, in the fulfillment of its obligations under the
Deposit Agreement, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable and the Depositary shall distribute the net proceeds of any such
sale (after deduction of 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 receipt of notice indicating that the Company wishes an elective
distribution in cash or shares to be made available to Holders upon the terms
described in the Deposit Agreement the Depositary shall make such elective
distribution available to Holders only if (i) the Depositary shall have
determined that such distribution is reasonably practicable and (ii) 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.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares (or rights of any other nature)
to be made available to Holders of ADSs, the Depositary, upon consultation with
the Company, shall determine whether it is lawful and reasonably practicable to
make such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if the Company shall have 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 reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date and establish procedures to distribute such
rights (by means of warrants or otherwise) 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
A-9
than ADSs). If (i) the Company does not request the Depositary to make the
rights available to Holders or if the Company requests that the rights not be
made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity 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 collection 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
unless and until a registration statement under the Securities Act covering such
offering is in effect. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to 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 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 indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions,
A-10
the Depositary shall distribute the property so received to the Holders of
record as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(15) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any distribution, 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, after consultation
with the Company, 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 the terms and
conditions of this Receipt and the Deposit Agreement, the Holders of Receipts at
the close of business on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(16) Voting of Deposited Securities. Upon receipt of notice of any meeting
of holders of Shares or other Deposited Securities, the Depositary shall, as
soon as practicable, fix a record date as provided in Section 4.8 for
determining the Holders entitled to give instructions for the exercise of voting
rights and mail to the Holders a notice which shall contain (a) such information
as is contained in such notice of meeting and (b) a statement (in a form
provided by the Company) that a Holder of Receipts at the close of business on
the specified record date will be entitled, subject to any applicable provisions
of Swedish law and of the Articles of Association of the Company (which
provisions, if any, shall be summarized in pertinent part), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented thereby. A precondition for
exercising any such voting rights is that such Holder is registered in the
register of stockholders of the Company not less than ten calendar days prior to
the date of the meeting and gives notice of his intention to attend
A-11
the meeting, in person or by proxy, not later than a date (being not earlier
than five days before the meeting, not including Sundays and legal holidays in
Sweden) specified in the notice convening the meeting. Pursuant to these
requirements, Holders will be entitled to deposit their ADSs in a blocked
account with the Depositary and to instruct the Depositary to request a
Custodian to cause the equivalent underlying Shares to be registered in the
Holder's name and to give notice to the Company of the Holder's intention to
attend the meeting and to vote the Shares at such a meeting in person or by
proxy. Such notice shall also contain a statement that a Holder who deposits his
ADSs in a blocked account with the Depositary and who instructs a Custodian to
register in the Holder's name the equivalent underlying Shares for the purpose
of voting such Shares at any meeting of holders of Shares may instruct the
Depositary, immediately following any such meeting, to request such Custodian to
reregister the Shares in the name in which such Shares were previously
registered and to release to the Holder from the blocked account the ADSs
representing such Shares.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions from Holders. Shares or other Deposited
Securities represented by ADSs for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted. There can be no
assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(17) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or 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 the form of Receipt, specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of satisfactory
legal documentation contemplated in the Deposit Agreement, sell such securities
at public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of fees and
charges of, and expenses incurred by, the Depositary and taxes) for the account
of the Holders otherwise entitled to such
A-12
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.
(18) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary, 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, Sweden or any
other country, or of any other governmental authority or regulatory authority or
stock exchange, or by reason of any provision, present or future of the Articles
of Association and By-laws of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association and By-laws of the
Company or provisions of or governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability of a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages for any breach of the terms of 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 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.
(19) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or this
Receipt to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipt to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
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
A-13
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-wortmness 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.
(20) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal, which notice shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment, 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 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.
(21) Amendment, Supplement. This Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges 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 prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding
A-14
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 bookentry 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 Receipt and
receive therefor the Deposited Securities represented hereby, 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 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.
(22) Termination. The Depositary shall, at any time at the 'written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holders' ADSs at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the sun-ender of ADSs referred to in Article (2) hereof and in
the Deposit Agreement and subject to the conditions and restrictions therein set
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by this 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
A-15
and conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement with respect to the Receipts
and the Shares, 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 Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section LA.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(24) 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 Receipts. 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 In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; provided, however, that the Depositary may (i) issue Receipts prior to
the receipt of Shares pursuant to Section 2.2 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.5 of the Deposit Agreement, including Receipts 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 Receipts in lieu of
Shares under (i) above and receive Shares in lieu of Receipts 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 Receipts or Shares are to
be delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Shares or Receipts that are to be delivered
by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the
Depositary as owner of such Shares or Receipts in its records and to hold such
Shares or Receipts in tmst for the Depositary until such Shares or Receipts are
delivered to the Depositary or the Custodian, (y) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or
Receipts and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate,
A-16
(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
Receipts and Shares involved in such Pre-Release Transactions at anyone time to
thirty percent (30%) of the Receipts outstanding (without giving effect to
Receipts 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 Receipts and Shares involved in Pre-Release Transactions with anyone person
on a case-by-case basis as it deems appropriate. The Depositary may retain for
its own account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not earnings thereon,
shall be held for the benefit of the Holders (other than the Applicant).
A-17
(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.
Date: Name:
------------------------- -------------------------
By:
Title:
Dated:
-------------------------
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.
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 and the Holders and Beneficial Owners agree to pay the
following fees of the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit of $5.00 per 100 ADSs (or fraction Party for whom deposits are made or
Shares (excluding issuances thereof) issued. party receiving ADSs.
contemplated by paragraphs (3)(b) and
(5) below.)
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited $5.00 per 100 ADSs (or fraction Party surrendering ADSs or making
Securities, property and cash against thereof) surrendered. withdrawal.
surrender of ADSs.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash dividend No fee, so long as prohibited by Party to whom distribution is made.
or (b) ADSs pursuant to stock any exchange upon which the ADSs
dividends (or other free distribution are listed.
of stock).
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs held. Party to whom distribution is made.
(i.e. upon sale of rights and other
entitlements).
-------------------------------------------------------------------------------------------------------------------
(5) Distribution of ADSs pursuant to Up to $5.00 per 100 ADSs issued. Party to whom distribution is made.
exercise of rights.
-------------------------------------------------------------------------------------------------------------------
II. Charges Holders and Beneficial Owners shall be responsible for the following
charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as my from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
B-1
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary III the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities
B-2
