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YARA INTERNATIONAL ASA
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of March , 2004
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TABLE OF CONTENTS
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Page
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PARTIES...................................................................... 1
RECITALS..................................................................... 1
Section 1. Certain Definitions
(a) ADR Register................................................ 1
(b) ADRs; Direct Registration ADRs.............................. 1
(c) ADS......................................................... 1
(d) Custodian................................................... 1
(e) Deliver, execute, issue et al............................... 1
(f) Delivery Order.............................................. 1
(g) Deposited Securities........................................ 1
(h) Direct Registration System.................................. 2
(i) Holder...................................................... 2
(j) Securities Act of 1933...................................... 2
(k) Securities Exchange Act of 1934............................. 2
(l) Shares...................................................... 2
(m) Transfer Office............................................. 2
(n) Withdrawal Order............................................ 2
Section 2. ADRs............................................................ 2
Section 3. Deposit of Shares............................................... 3
Section 4. Issue of ADRs................................................... 3
Section 5. Distributions on Deposited Securities........................... 3
Section 6. Withdrawal of Deposited Securities.............................. 3
Section 7. Substitution of ADRs............................................ 4
Section 8. Cancellation and Destruction of ADRs............................ 4
Section 9. The Custodian................................................... 4
Section 10. Co-Registrars and Co-Transfer Agents............................ 4
Section 11. Lists of Holders................................................ 5
Section 12. Depositary's Agents............................................. 5
Section 13. Successor Depositary............................................ 5
Section 14. Reports......................................................... 5
Section 15. Additional Shares............................................... 5
Section 16. Indemnification................................................. 5
Section 17. Notices......................................................... 6
Section 18. Miscellaneous................................................... 7
TESTIMONIUM.................................................................. 7
SIGNATURES................................................................... 7
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Page
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EXHIBIT A
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FORM OF FACE OF ADR ....................................................... A-1
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Introductory Paragraph................................................ A-1
(1) Issuance of ADRs................................................ A-2
(2) Withdrawal of Deposited Securities.............................. A-2
(3) Transfers of ADRs............................................... A-3
(4) Certain Limitations............................................. A-3
(5) Taxes........................................................... A-4
(6) Disclosure of Interests......................................... A-4
(7) Charges of Depositary........................................... A-5
(8) Available Information........................................... A-6
(9) Execution....................................................... A-7
Signature of Depositary............................................... A-7
Address of Depositary's Office ....................................... A-7
FORM OF REVERSE OF ADR .................................................... A-8
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(10) Distributions on Deposited Securities........................... A-8
(11) Record Dates.................................................... A-9
(12) Voting of Deposited Securities.................................. A-9
(13) Changes Affecting Deposited Securities.......................... A-9
(14) Exoneration..................................................... A-10
(15) Resignation and Removal of Depositary; the
Custodian....................................................... A-10
(16) Amendment....................................................... A-10
(17) Termination..................................................... A-11
- ii -
DEPOSIT AGREEMENT dated as of March , 2004 (the "Deposit Agreement") among
YARA INTERNATIONAL ASA and its successors (the "Company"), JPMORGAN CHASE BANK,
as depositary hereunder (the "Depositary"), and all holders from time to time of
American Depositary Receipts issued hereunder ("ADRs") evidencing American
Depositary Shares ("ADSs") representing deposited Shares (defined below). The
parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which
is recorded on the Direct Registration System. References to "ADRs" shall
include certificated ADRs and Direct Registration ADRs, unless the context
otherwise requires. The form of ADR is hereby incorporated herein and made a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by
an ADR represents the right to receive one Share and a pro rata share in any
other Deposited Securities.
(d) "Custodian"means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "Direct Registration System" means the system for the uncertificated
registration of ownership of securities established by The Depository Trust
Company ("DTC") and utilized by the Depositary pursuant to which the Depositary
may record the ownership of ADRs without
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the issuance of a certificate, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto. For
purposes hereof, the Direct Registration System shall include access to the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
(i) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the common shares of the Company and shall include the
rights to receive Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. No ADR in
certificated form shall be entitled to any benefits under the Deposit Agreement
or be valid or obligatory for any purpose, unless such ADR shall have been
executed by the Depositary by the manual signature of a duly authorized officer
at the time of such execution. ADRs in certificated form shall be executed by
the Depositary by the manual or facsimile signature of a duly authorized officer
of the Depositary. ADRs in certificated form bearing the facsimile signature of
anyone who was at the time of execution a duly authorized officer of the
Depositary shall bind the Depositary, notwithstanding that such officer has
ceased to hold such office prior to the delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated
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ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder,
the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to issue to, or upon the
written order of, the person or persons designated in such order a Direct
Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement. To the extent that the provisions of or governing the
Shares make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably accept, including, without limitation, by causing them to be
credited to an account maintained by the Custodian for such purpose with the
Company or an accredited intermediary, such as a bank, acting as a registrar for
the Shares, together with delivery of the documents, payments and Delivery Order
referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the Depositary
determines in its discretion that any distribution pursuant to paragraph (10) of
the form of ADR is not practicable with respect to any Holder, the Depositary
may make such distribution as it so deems practicable, including the
distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender of
an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the
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Depositary may require proper endorsement in blank of such ADR (or duly executed
instruments of transfer thereof in blank) and the Holder's written order
directing the Depositary to cause the Deposited Securities represented by the
ADSs evidenced by such ADR to be withdrawn and delivered to, or upon the written
order of, any person designated in such order (a "Withdrawal Order"). Directions
from the Depositary to the Custodian to deliver Deposited Securities shall be
given by letter, first class airmail postage prepaid, or, at the request, risk
and expense of the Holder, by cable, telex or facsimile transmission. Delivery
of Deposited Securities may be made by the delivery of certificates (which, if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal Order)
or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account
designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to the
directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than JPMorgan Chase
Bank) shall give written notice to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary. The Depositary may discharge any Custodian at any time
upon notice to the Custodian being discharged. Any Custodian ceasing to act
hereunder as Custodian shall deliver, upon the instruction of the Depositary,
all Deposited Securities held by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint and
remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
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11. Lists of Holders. The Company shall have the right to inspect transfer
records of the Depositary and its agents and the ADR Register, take copies
thereof and require the Depositary and its agents to supply copies of such
portions of such records as the Company may request. The Depositary or its agent
shall furnish to the Company promptly upon the written request of the Company, a
list of the names, addresses and holdings of ADSs by all Holders as of a date
within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations under
this Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company. The Depositary may at any time be removed by the Company by written
notice of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement pursuant to paragraph (17) of the form of ADR. Any bank
or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copy of all provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company and, promptly upon any change thereto, the Company shall deliver
to the Depositary, the Custodian and any Transfer Office, a copy (in English or
with an English translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save harmless
each of the Depositary and its agents against any loss, liability or expense
(including reasonable fees and
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expenses of counsel) which may arise out of acts performed or omitted, in
accordance with the provisions of this Deposit Agreement and of the ADRs, as the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising out
of the negligence or bad faith of the Depositary, or (ii) by the Company or any
of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
Except as provided in the next succeeding paragraph, the Depositary shall
indemnify, defend and save harmless the Company against any loss, liability or
expense incurred by the Company in respect of this Deposit Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith of
the Depositary.
Notwithstanding any other provision of this Deposit Agreement or the form
of ADR to the contrary, neither the Company nor the Depositary, nor any of their
agents, shall be liable to the other for any indirect, special, punitive or
consequential damages (collectively "Special Damages") except (i) to the extent
such Special Damages arise from the gross negligence or willful misconduct of
the party from whom indemnification is sought or (ii) to the extent Special
Damages arise from or out of a claim brought by a third party (including,
without limitation, Holders) against the Depositary or its agents, except to the
extent such Special Damages arise out of the fraud, gross negligence or willful
misconduct of the party seeking indemnification hereunder.
The obligations set forth in this Section 16 shall survive the termination
of this Deposit Agreement and the succession or substitution of any indemnified
person.
17. Notices. Notice to any Holder shall be deemed given when first mailed,
first class postage prepaid, to the address of such Holder on the ADR Register
or received by such Holder. Notice to the Depositary or the Company shall be
deemed given when first received by it at the address or facsimile transmission
number set forth in (a) or (b), respectively, or at such other address or
facsimile transmission number as either may specify to the other by written
notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx (00xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Attention: ADR Administration
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Fax: (000) 000-0000
(b) Yara International ASA
Bygdoy alle 2
Oslo, Norway
Attention: Xxxxxxxx X. Xxxxxxx, Senior Vice President
and Chief Legal Officer
Fax:
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit of
the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, YARA INTERNATIONAL ASA and JPMORGAN CHASE BANK have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs issued in accordance with the terms hereof.
YARA INTERNATIONAL ASA
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
------------------------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
--- No. of ADSs:
Number
-----------
Each ADS represents
One Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
COMMON SHARES
of
YARA INTERNATIONAL ASA
(Incorporated under the
laws of the Kingdom of Norway)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that _________ is the registered owner (a
"Holder") of ___ American Depositary Shares ("ADSs"), each (subject to paragraph
(13)) representing one common share (including the rights to receive Shares
described in paragraph (1), "Shares" and, together with any other securities,
cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the "Deposited Securities"), of Yara International ASA, a
corporation organized under the laws of the Kingdom of Norway (the "Company"),
deposited under the Deposit Agreement dated as of March , 2004 (as amended from
time to time, the "Deposit Agreement") among the Company, the Depositary and all
Holders from time to time of American Depositary Receipts issued thereunder
("ADRs"), each of whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), 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 retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. Shares or evidence of rights to receive Shares may be
deposited through (x) electronic transfer of such Shares to the account of the
Depositary in the Company's share registry on the Norwegian Verdipapirsentralen
(the "VPS System"), (y) evidence satisfactory to the Custodian of irrevocable
instructions to cause such Shares to be transferred to such account or (z)
delivery of the certificates representing such Shares. At the request, risk and
expense of the person depositing Shares, the Depositary may accept deposits for
forwarding to the Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement represents
and warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable, all preemptive (and similar) rights, if any, with respect to such
Shares have been validly waived or exercised, that the person making such
deposit is duly authorized so to do and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities Act of 1933
unless at the time of deposit they may be freely transferred in accordance with
Rule 144(k) and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the case
of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian's office of the Deposited Securities at the time represented by the
ADSs evidenced by this ADR. Delivery of such Deposited Securities may be made by
(i) transfer to such Holder's account or an account designated by such Holder in
the Company's share registry on the VPS System of the Shares or rights to
receive Shares represented by such ADSs, or (ii) if the Shares or rights to
receive Shares represented by such ADSs are evidenced by certificates or other
documents of title or there is property other than Shares or Rights to receive
Shares represented by such ADSs, the delivery of certificates (or
A-2
other proper documents of title) in the name of the Holder hereof or as ordered
by such Holder or by the delivery of certificates (or other proper documents of
title) properly endorsed or accompanied by proper instruments of transfer. At
the request, risk and expense of the Holder hereof, the Depositary may deliver
such Deposited Securities at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
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satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company
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instructions.
Without limitation of the foregoing, any person, entity or group acting in
concert who is a Holder, who is entitled upon surrender of the ADRs to acquire
directly or indirectly the beneficial ownership of such number of Shares as
shall exceed (together with any Share or additional ADRs held by such person,
entity or group) 10%, or such lesser percentage as may be required to be
disclosed from time to time under any law, regulation or practice of Norway, of
the share capital or voting rights of the Company shall, promptly send to the
Company and to the Oslo Stock Exchange, via facsimile or by any other reasonable
means so that the Company and the Oslo Stock Exchange shall receive such
information promptly after such person, entity or group becomes so entitled, the
following information:
(i) the background, and identity, residence, and citizenship of, and the
nature of such rights held by, such person, entity or group and all
other persons by whom or on whose behalf purchases have been or are
to be effected;
(ii) the number of Shares and ADRs which are beneficially owned, directly
or indirectly, by (A) such person, entity or group and (B) each
associate of such person, entity or group, giving the background,
identity, residence, and citizenship of each such associate; and
(iii) if any material change occurs in the facts set forth in the
statements to the Company, an amendment shall be transmitted, within
ten days after any such change occurs, to the Company setting forth
such changes.
Any person, entity or group acting in concert who is a Holder and who
acquires or disposes of Shares, options for Shares or other rights to Shares
resulting in its beneficial ownership, directly or indirectly, in the aggregate,
exceeding or falling below the respective thresholds of 1/10, 1/5, 1/3, 1/2, 2/3
or 9/10 of the share capital or voting rights of the Company or such lesser or
other percentage as may be required to be disclosed from time to time under any
law, regulation or practice of Norway, of the share capital or voting rights of
the Company, shall send to the Company and to the Oslo Stock Exchange the
information required in the preceding paragraph via facsimile or by any other
reasonable means so that the Company and the Oslo Stock Exchange shall receive
such information promptly after any such change in the shares of capital stock
beneficially owned by such Holder.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADSs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs are issued (including, without limitation, issuance pursuant to a stock
dividend or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is
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applicable (i) a fee of $.02 or less per ADS (or portion thereof) for any Cash
distribution made pursuant to the Deposit Agreement, (ii) to the extent not
prohibited by the rules of any stock exchange or interdealer quotation system
upon which the ADSs are traded, a fee of $1.50 per ADR or ADRs for transfers
made pursuant to paragraph (3) hereof, (iii) a fee for the distribution or sale
of securities pursuant to paragraph (10) hereof, such fee being in an amount
equal to the fee for the execution and delivery of ADSs referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating all such securities as if they were
Shares) but which securities or the net cash proceeds from the sale thereof are
instead distributed by the Depositary to Holders entitled thereto and (iv) such
fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Depositary will distribute copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company furnishes the United States Securities and
Exchange Commission (the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and documents may be inspected and copied at
the public reference facilities maintained by the Commission located at the date
of the Deposit Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
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(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ...............................
Authorized Officer
The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute to each Holder
entitled thereto on the record date set by the Depositary therefor at such
Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
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(11) Record Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall
distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record
date set by the Depositary therefor will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Under Norwegian law,
the Depositary may not exercise the voting rights, if any, pertaining to the
Deposited Securities represented by the ADSs except as proxy pursuant to voting
instructions from the Holders of the ADSs representing such Deposited
Securities. Upon the written request of a Holder on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary will endeavor insofar as practicable and permitted under Norwegian
law, the Deposit Agreement, the provisions of the Articles of Association of the
Company, any agreement which may be reached with the VPS and the rules of the
VPS to cause the corresponding Deposited Securities to be temporarily
transferred in the VPS to the account of such Holder, to cause notice to be
given to the Company and, as proxy, to vote or cause to be voted (or grant a
discretionary proxy to a person designated by the Company to vote), or otherwise
to give effect to the written request of such Holder by voting or causing to be
voted, the amount of Shares represented by the ADSs evidenced by such Holder's
ADRs in accordance with any instructions set forth in such request. The
Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
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(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, rule, regulation, fiat, order,
decree, the provisions of or governing any Deposited Securities, act of God, war
or other circumstance beyond its control shall prevent, delay or subject to any
civil or criminal penalty any act which the Deposit Agreement or this ADR
provides shall be done or performed by it, or (ii) by reason of any exercise or
failure to exercise any discretion given it in the Deposit Agreement or this
ADR; (b) assume no liability except to perform its obligations to the extent
they are specifically set forth in this ADR and the Deposit Agreement without
gross negligence or bad faith; (c) in the case of the Depositary and its agents,
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR; (d) in the
case of the Company and its agents hereunder be under no obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR, which in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required; or (e) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by it to
be competent to give such advice or information. The Depositary, its agents and
the Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own
and deal in any class of securities of the Company and its affiliates and in
ADRs. Notwithstanding anything to the contrary set forth in the Deposit
Agreement or an ADR, the Depositary and its agents may fully respond to any and
all demands or requests for information maintained by or on its behalf in
connection with the Deposit Agreement, any Holder or Holders, any ADR or ADRs or
otherwise related hereto to the extent such information is requested or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities or
other regulators. The Company has agreed to indemnify the Depositary and its
agents under certain circumstances and the Depositary has agreed to indemnify
the Company under certain circumstances. Neither the Company nor the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary. The Depositary may appoint substitute
or additional Custodians and the term "Custodian" refers to each Custodian or
all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary, provided
that any amendment that imposes or increases any fees or charges (other than
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile
A-10
transmission costs, delivery costs or other such expenses), or that shall
otherwise prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given to the
Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement so becomes effective shall be deemed, by continuing to hold such ADR,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby. In no event shall any amendment impair the right of the
Holder of any ADR to surrender such ADR and receive the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. 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 of 1933 or (b) the ADSs or
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the ADR at any time
in accordance with such changed rules. 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.
(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
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