SVENSKA CELLULOSA AKTIEBOLAGET SCA AND DEUTSCHE BANK TRUST COMPANY AMERICAS, As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS AMENDED AND RESTATED DEPOSIT AGREEMENT Dated as of , 2010
SVENSKA
CELLULOSA AKTIEBOLAGET SCA
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
______________________
AMENDED
AND RESTATED DEPOSIT AGREEMENT
______________________
Dated as
of ,
2010
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT
dated as
of ,
2010 among SVENSKA CELLULOSA AKTIEBOLAGET SCA (publ), incorporated under the
laws of Sweden (herein called the Company), DEUTSCHE BANK TRUST COMPANY
AMERICAS, an indirect wholly owned subsidiary of Deutsche Bank A.G. (herein
called the Depositary), and all Holders from time to time of American
Depositary Receipts issued hereunder.
W I T N E
S S E T H:
WHEREAS, the Company, The Bank
of New York Mellon, as depositary, and all Holders from time to time of American
Depositary Receipts issued thereunder entered into a deposit agreement dated as
of December 4, 1995 (the “Original Deposit Agreement”) to provide
for the deposit of Shares (as hereinafter defined) of the Company with the
Custodian as agent of The Bank of New York Mellon for the purposes set forth in
such Original Deposit Agreement, for the creation of American depositary shares
representing the Shares so deposited and for the execution and delivery of
American depositary receipts ("Old Receipts") evidencing the American depositary
shares; and
WHEREAS, pursuant to Section
5.4 of the Original Deposit Agreement, the Company removed The Bank of New York
Mellon, as depositary, and appointed Deutsche Bank Trust Company Americas as
successor depositary (hereinafter called the “Depositary”); and
WHEREAS, the Company and
Deutsche Bank Trust Company Americas, in its capacity as successor depositary
under the Original Deposit Agreement, now wish to amend and restate the Original
Deposit Agreement and the Old Receipts; and
WHEREAS, the Company desires
to provide, as hereinafter set forth in this Deposit Agreement, for the deposit
of Non-Restricted B Shares (herein called Shares) of the Company from time to
time with the Depositary, or with the principal Stockholm office of Svenska
Handelsbanken (the “Custodian”), as agent of the Depositary, for the purposes
set forth in this Deposit Agreement, for the creation of American Depositary
Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts in respect of the American
Depositary Shares; and
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WHEREAS, the American
Depositary Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions,
as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in
consideration of the premises, it is agreed by and between the parties hereto as
follows:
ARTICLE
1.
DEFINITIONS.
The following definitions shall for all
purposes, unless otherwise clearly indicated, apply to the respective terms
used in this Deposit Agreement:
Section
1.1. The
term "Company" shall mean Svenska Cellulosa Aktiebolaget, incorporated under the
laws of Sweden, and its successors.
Section
1.2. The
term "Depositary" shall mean Deutsche Bank Trust Company Americas, an indirect
wholly owned subsidiary of Deutsche Bank A.G., in its capacity as depositary
under the Deposit Agreement, and any successor as depositary hereunder.
The term "Depositary's 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 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
Section
1.3. The
term "Custodian" shall mean, as of the date hereof, Svenska Handelsbanken
(acting at its principal Stockholm office), as custodian and agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm
or corporation which may hereafter be appointed by the Depositary, with
notice to the Company, pursuant to the terms of Section 5.5, as substitute or an
additional Custodian hereunder, and such term shall mean any one of them,
individually, or all of them collectively, as the context shall
require.
Section
1.4. The
term "Deposit Agreement" shall mean this Agreement, as the same may be amended
from time to time in accordance with the provisions hereof.
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Section
1.5. The
term "Shares" shall mean Non-Restricted B Shares of the Company in registered
form and shall include rights to receive Shares (except where the context
otherwise already refers to the right to receive Shares).
Section
1.6. The
term "Deposited Securities" as of any time shall mean Shares at such time
deposited or deemed to be deposited under this Deposit Agreement and any and all
other securities, property and cash received by the Depositary or the Custodian
in respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.5.
Section
1.7. The
term "Receipts" shall mean the American Depositary Receipts or DRS/Profile
statements issued by the Depositary hereunder evidencing 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 in DTC, be in the
form of a global certificate. References to Receipts shall include physical
certificated Receipts as well as American Depositary Shares issued through
DRS/Profile, unless the context otherwise requires.
Section
1.8. The
term "American Depositary Shares" shall mean the rights represented by the
Receipts issued hereunder and the interests in the Deposited Securities
represented thereby. Each American Depositary Share shall represent
one Share, until there shall occur a distribution upon Deposited Securities
covered by Section 4.3 or a change in Deposited Securities covered by Section
4.8 with respect to which additional Receipts are not executed and
delivered, and thereafter American Depositary Shares shall represent the amount
of Shares or Deposited Securities specified in such Sections.
Section
1.9. The
term "Holder" shall mean the person in whose name a Receipt is registered on the
books of the Depositary maintained for such purpose.
Section
1.10. The
term "Registrar" shall mean any bank or trust company having an office in the
Borough of Manhattan, the City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
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Section
1.11. The
term "dollars" shall mean United States dollars. The term "kronor"
shall mean Swedish kronor.
Section
1.12. The
term "Securities Act of 1933" shall mean the United States Securities Act of
1933, as from time to time amended.
Section
1.13. The
term "Commission" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United
States.
Section
1.14. The
term "Euroclear" shall mean Euroclear Sweden, a company which carries out the
duties of registrar for nearly all Swedish companies listed on the Stockholm
Stock Exchange, including the Company.
Section
1.15. The
term "nominee" when used with respect to the Depositary shall mean the nominee
of the Depositary as it shall so appoint from time to time to act on its behalf
in connection with the performance of its duties and obligations under this
Deposit Agreement. The nominee, as so appointed by the
Depositary, shall perform in whatever capacity and to whatever extent under
this Deposit Agreement as the Depositary designates in its appointment of
the nominee. Such appointment may be evidenced by written agreement,
letter, telegram, telex or other facsimile transmission or orally with
subsequent confirming agreement, letter, telegram, telex or other facsimile
transmission.
Section
1.16. The
term “DRS/Profile” shall mean the system for the uncertificated registration of
ownership of securities pursuant to which ownership of American Depositary
Shares is maintained on the books of the Depositary without the issuance of a
physical certificate and transfer instructions may be given to allow for the
automated transfer of ownership between the books of DTC and the
Depositary. Ownership of American Depositary Shares held in
DRS/Profile is evidenced by periodic statements issued by the Depositary to the
Owners entitled thereto.
Section
1.17. The
term “DTC” shall mean The Depository Trust Company, and any successor
thereto.
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Section
1.18. The
terms "deposit", "deliver", "execute", "issue", "register", "surrender",
"transfer", "withdraw" or "cancel", when used with respect to Shares, shall
refer, where the context requires, to an entry or entries or an electronic
transfer or transfers in an account or accounts maintained in Euroclear to
effect transfers of securities and not to the physical transfer of certificates
representing the Shares.
Section
1.19. The
term “Restricted Securities” shall mean Shares, or Receipts representing such
Shares, which are acquired directly or indirectly from the Issuer or its
affiliates (as defined in Rule 144 under the Securities Act of 1933) in a
transaction or chain of transactions not involving any public offering or which
are subject to resale limitations under Regulation D under that Act or both, or
which are held by an officer, director (or persons performing similar functions)
or other affiliate of the Issuer, or which would require registration under the
Securities Act of 1933 in connection with the offer and sale thereof in the
United States, or which are subject to other restrictions on sale or deposit
under the laws of the United States or Sweden, or under a shareholder agreement
or the Articles of Association.
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ARTICLE
2.
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FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.
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Section
2.1. Form and Transferability of
Receipts.
(a) Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary. The Depositary shall
maintain books on which each Receipt so executed and delivered, in the case of
definitive Receipts, and each Receipt issued through the DRS/Profile, in either
case as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts in certificated form bearing the manual or
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts.
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In addition to the foregoing, the
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or modifications not inconsistent with the provisions of
this Deposit Agreement as may be reasonably required by the Depositary in order
to comply with any applicable law or regulations thereunder or with the rules
and regulations of any securities exchange upon which American Depositary Shares
may be listed or to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any particular Receipts are
subject by reason of the date of issuance of the underlying Deposited Securities
or otherwise.
Notwithstanding anything in this
Deposit Agreement or in the Receipt to the contrary, to the extent available by
the Depositary, American Depositary Shares shall be evidenced by Receipts issued
through DRS/Profile unless certificated Receipts are specifically requested by
the Holder. Holders and Beneficial Owners shall be bound by the terms
and conditions of this Deposit Agreement and of the form of Receipt, regardless
of whether their Receipts are certificated or issued through
DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof.
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Section
2.2. Deposit of
Shares.
Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares may
be deposited by (i) delivery of certificates therefor to the Custodian
accompanied by an appropriate instrument or instruments of transfer or
endorsement in form satisfactory to the Custodian, (ii) electronic transfer of
Shares through Euroclear or any successor thereto, to the account of the
Custodian maintained for such purpose or (iii) delivery to the Custodian of
evidence satisfactory to the Custodian that irrevocable instructions have been
given to cause such Shares to be transferred to such account, accompanied by an
appropriate instrument or instruments of transferor endorsement,
if any, in form satisfactory to the Custodian, together with all such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and together with
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 such
deposit. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of the
Company (or the appointed agent of the Company for transfer and
registration of Shares, which may but need not be Euroclear) are closed,
shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the
prompt transfer to the Custodian of any dividend, or right to subscribe for
additional Shares or to receive other property which any person in whose name
the Shares are or have been recorded may thereafter receive upon or in respect
of such deposited Shares, or in lieu thereof, such agreement of indemnity
or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of
any holder of Shares, and for the account of such holder, the Depositary may
receive certificates for Shares to be deposited, together with the other
instruments herein specified, for the purpose of forwarding such certificates to
the Custodian for deposit hereunder.
Upon each delivery or electronic
transfer to the Custodian of a certificate or certificates for Shares to be
deposited hereunder, together with the other documents above specified, the
Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates
to the Company (or the appointed agent of the Company for transfer and
registration of Shares, which may but need not be Euroclear), for transfer
and recordation of the Shares being deposited in the name of the Depositary or
its nominee.
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Deposited Securities shall be held by
the Depositary, or by the Custodian for the account and to the order of the
Depositary, or at such other place or places as the Depositary shall
determine upon prior consultation with the Company.
Section
2.3. Execution and Delivery of
Receipts.
Upon receipt by the Custodian of any
deposit pursuant to Section 2.2 hereunder (and in addition, if the transfer
books of the Company (or the appointed agent of the Company for the transfer and
registration of Shares, which may but need not be Euroclear) are open, a proper
acknowledgment or other evidence from the Company (or the appointed agent of the
Company for the transfer and registration of Shares, which may but need not
be Euroclear) satisfactory to the Depositary that any Deposited Securities have
been recorded upon the Company's books (or upon the books of the appointed agent
of the Company for the transfer and registration of Shares, which may but need
not be Euroclear) in the name of the Depositary or its nominee), together with
the other documents required as above specified, the Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and
the number of American Depositary Shares to be represented
thereby. Such notification shall be made by letter or, at the request
and risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from the
Custodian, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at the Depositary's Office to or upon the
order of the person or persons named in the notice delivered to the
Depositary, a Receipt or Receipts, registered in the name or names and
representing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fees and
expenses of the Depositary for the execution and delivery of such Receipt
or Receipts, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited
Securities.
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Section
2.4.
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Transfer of Receipts;
Combination and Split-up of
Receipts.
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The Depositary, subject to the terms
and conditions of this Deposit Agreement, shall register transfers on its
transfer books from time to time of Receipts, upon any surrender of a Receipt,
by the Holder in person or by duly authorized attorney, properly endorsed
or accompanied by proper instruments of transfer, and duly stamped as may be
required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto.
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The Depositary, subject to the terms
and conditions of this Deposit Agreement, shall upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts, execute and deliver a new Receipt or Receipts for any authorized
number of American Depositary Shares requested, representing the same aggregate
number of American Depositary Shares as the Receipt or Receipts
surrendered.
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Section
2.5.
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Surrender of Receipts
and Withdrawal of Shares.
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Upon surrender at the Depositary's
Office or at such other offices as it may designate of a Receipt for the purpose
of withdrawal of the Deposited Securities represented thereby, and upon
payment of the fee of the Depositary for the surrender of Receipts as provided
in Section 5.9 and payment of all taxes and governmental charges payable in
connection with such surrender and withdrawal of the Deposited Securities, and
subject to the terms and conditions of this Deposit Agreement and applicable law
or regulation, the Holder of such Receipt shall be entitled to physical or
electronic delivery through Euroclear or institutions that maintain
accounts with Euroclear, to him or upon his order, of the amount of Deposited
Securities at the time represented by such Receipt. Physical delivery
of such Deposited Securities may be made, if such delivery is possible, by the
delivery of certificates therefor properly endorsed or accompanied by
proper instruments of transfer to such Holder or as ordered by
him. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
A Receipt surrendered for such purposes
may be required by the Depositary to be properly endorsed in blank or
accompanied by proper instruments of transfer in blank, and 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 either
physically (subject to applicable clearing procedure of Euroclear) or
electronically delivered to or upon the written order of the person or
persons designated in such order. Thereupon the Depositary shall
direct the Custodian to deliver at the office of the Custodian, subject to
Sections 2.6, 3.1 and 3.2, and to the other terms and conditions of this Deposit
Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by such Receipt or evidence of
electronic transfer thereof to or for the account of such person, except that
the Depositary may make delivery to such person or persons at the Depositary's
Office 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.
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If the Deposited Securities being
withdrawn are deliverable in certificated form, at the request, risk and expense
of any Holder surrendering a Receipt, and for the account of such Holder,
the Depositary shall direct the Custodian to forward a certificate or
certificates and other proper documents of title for the Deposited
Securities represented by such Receipt to the Depositary for delivery at
the Depositary's Office. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
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Section
2.6.
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Limitations on
Execution and Delivery, Transfer and Surrender of
Receipts.
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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 payment from the presentor 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 as herein provided, may require
the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with laws,
rules or governmental regulation and/or any regulations the Depositary may
establish consistent with the provisions of this Deposit Agreement, including,
without limitation, this Section 2.6.
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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 transfer or
surrender of outstanding Receipts generally may be suspended, during any period
when the transfer books of the Depositary are closed, or if any such action is
deemed necessary or advisable by the Depositary or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental authority, body or commission, or under any provision of this
Deposit Agreement subject to Section 7.7 of this Deposit
Agreement. The surrender of outstanding Receipts and withdrawal
of Deposited Securities may not be suspended, except as required in
connection with (i) temporary delays caused by closing the transfer books of the
Depositary or the Company (or the appointed agent for the Company for the
transfer and registration of Shares) 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
this Deposit Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933 for the
public offer and sale thereof in the United States, unless a registration
statement is in effect as to such Shares for such
offer and sale.
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 the securities laws in the
United States including, without limitation, the laws referenced in Section
7.7.
Section
2.7. Lost Receipts,
etc.
In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary shall deliver to the Holder the
American Depositary Shares evidenced by that Receipt in uncertificated form or,
if requested by the Holder, execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen
Receipt. Before the Depositary shall deliver American Depositary
Shares in uncertificated form or execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the Holder thereof shall
have (a) filed with the Depositary (i) a request for such execution and delivery
before the Depositary has notice that the Receipt has been acquired by a bona
fide purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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Section
2.8.
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Cancellation and
Destruction of Surrendered
Receipts.
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All Receipts surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is
authorized to destroy Receipts so cancelled. The Depositary
agrees to maintain records of all receipts surrendered and Deposited Securities
withdrawn under Section 2.5, substitute Receipts delivered under Section 2.7,
and of cancelled or destroyed Receipts under this Section, in keeping with
procedures ordinarily followed by stock transfer agents located in New York
City.
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Section
2.9.
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Loans and Pre-Release
of Shares and Receipts.
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Notwithstanding Section 2.3 hereof, the
Depositary may execute and deliver Receipts prior to the receipt of Shares
pursuant to Section 2.2 ("Pre-Release"). The Depositary
may, pursuant to Section 2.5, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation
is prior to the termination of such Pre-Release or the Depositary knows that
such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation
from the person to whom Receipts are to be delivered that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash 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 number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; 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 compensation received by it in connection with the
foregoing.
The Company shall not incur any
liability to the Holders and owners of Receipts as a result of actions taken by
the Depositary pursuant to this Section 2.9.
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Section
2.10
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Uncertificated
American Depositary Shares; DTC Direct Registration
System.
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Notwithstanding
anything to the contrary in this Deposit Agreement:
(a) American
Depositary Shares may be certificated securities evidenced by Receipts or
uncertificated securities. The form of Receipt annexed as Exhibit A to
this Deposit Agreement summarizes the terms and conditions of, and will be the
prospectus required under the Securities Act of 1933 for, both certificated and
uncertificated American Depositary Shares. Except for those provisions of
this Deposit Agreement that by their nature do not apply to uncertificated
American Depositary Shares, all the provisions of this Deposit Agreement shall
apply, mutatis
mutandis, to both certificated and uncertificated American Depositary
Shares.
(b) (i) The
term "deliver", or its noun form, when used with respect to Receipts, shall mean
(A) book-entry transfer of American Depositary Shares to an account at The
Depository Trust Company, or its successor ("DTC"), designated by the person
entitled to such delivery, evidencing American Depositary Shares registered in
the name requested by that person, (B) registration of American Depositary
Shares not evidenced by a Receipt on the books of the Depositary in the name
requested by the person entitled to such delivery and mailing to that
person of a statement confirming that registration or (C) if requested by the
person entitled to such delivery, delivery at the Corporate Trust Office of the
Depositary to the person entitled to such delivery of one or more
Receipts.
(ii) The
term "surrender", when used with respect to Receipts, shall mean (A) one or more
book-entry transfers of American Depositary Shares to the DTC account of the
Depositary, (B) delivery to the Depositary at its Corporate Trust Office of an
instruction to surrender American Depositary Shares not evidenced by a Receipt
or (C) surrender to the Depositary at its Corporate Trust Office of one or more
Receipts evidencing American Depositary Shares.
(c) American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York.
(d) The
Depositary shall have a duty to register a transfer, in the case of
uncertificated American Depositary Shares, upon receipt from the Owner of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in subsection (f) below). The Depositary, upon
surrender of a Receipt for the purpose of exchanging it for uncertificated
American Depositary Shares, shall cancel that Receipt and send the Owner a
statement confirming that the Owner is the owner of the same number of
uncertificated American Depositary Shares that the surrendered Receipt
evidenced. The Depositary, upon receipt of a proper instruction (including, for
the avoidance of doubt, instructions through DRS and Profile as provided in
subsection (f) below) from the Owner of uncertificated American Depositary
Shares for the purpose of exchanging them for certificated American Depositary
Shares, shall execute and deliver to the Owner a Receipt evidencing the same
number of certificated American Depositary Shares.
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(e) Upon
satisfaction of the conditions for replacement of a Receipt that is mutilated,
lost, destroyed or stolen, the Depositary shall deliver to the Owner the
American Depositary Shares evidenced by that Receipt in uncertificated form
unless otherwise requested by the Owner.
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(f)
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(i)
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The
parties acknowledge that the Direct Registration System ("DRS") and
Profile Modification System ("Profile") shall apply to uncertificated
American Depositary Shares upon acceptance thereof to DRS by DTC.
DRS is the system administered by DTC pursuant to which the
Depositary may register the ownership of uncertificated American
Depositary Shares, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Owners entitled thereto.
Profile is a required feature of DRS which allows a DTC participant,
claiming to act on behalf of an Owner of American Depositary Shares, to
direct the Depositary to register a transfer of those American Depositary
Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such
transfer.
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(ii)
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In
connection with and in accordance with the arrangements and procedures
relating to DRS/Profile, the parties understand that the Depositary will
not verify, determine or otherwise ascertain that the DTC participant
which is claiming to be acting on behalf of an Owner in requesting a
registration of transfer and delivery as described in subsection (i) has
the actual authority to act on behalf of the Owner (notwithstanding any
requirements under the Uniform Commercial Code of New York). For the
avoidance of doubt, the provisions of Sections 5.3 and 5.8 shall apply to
the matters arising from the use of the DRS. The parties agree that
the Depositary's reliance on and compliance with instructions received by
the Depositary through the DRS/Profile System and in accordance with this
Deposit Agreement shall not constitute negligence or bad faith on the part
of the Depositary.
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ARTICLE
3. CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS.
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Section
3.1.
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Filing Proofs,
Certificates and Other
Information.
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Any person presenting Shares for
deposit or any Holder of a Receipt may be required from time to time to file
with the Depositary or the Custodian such proof of citizenship or residence,
exchange control approval, or such information relating to the registration on
the books of the Company (or the appointed agent of the Company for transfer and
registration of Shares, which may but need not be Euroclear) of the Shares
presented for deposit or other information, to execute such certificates and to
make such representations and warranties, as the Depositary or the Company may
deem necessary or proper. The Depositary may and, at the written
request of the Company, will withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made or such
other documentation or information provided, in each case to the Depositary’s
satisfaction.
Section
3.2. Liability of Holder for
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian, the Depositary or the Company with respect to any Receipt or any
Deposited Securities, the right to receive which is represented by the American
Depositary Shares evidenced by such Receipt, including any taxes payable on
transfer, such tax or other governmental charge shall be payable by the
Holder of such Receipt, who shall pay the amount thereof to the
Depositary. The Depositary may, and upon instructions from the
Company shall, (i) refuse to effect any registration of transfer of such Receipt
or any split-up or combination thereof or any withdrawal of such Deposited
Securities until such payment is made, or (ii) withhold or deduct from any
distributions on such Deposited Securities or sell for the account of the Holder
thereof of any part or all of such Deposited Securities (after attempting by
reasonable means to notify such Holder prior to such sale), and apply, after
deduction for its expenses incurred in connection therewith, the net proceeds of
any such sale in payment of such tax or other governmental charge, the Holder of
such Receipt remaining liable for any deficiency. Every Holder and holder
of an interest in American Depositary Shares agrees to indemnify the Depositary,
the Company, the Custodian, and each of their respective agents, officers,
directors, employees and affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or
holder. The obligations of Holders and holders of interests in
American Depositary Shares under this Section 3.2 shall survive any transfer of
Receipts, any surrender of Receipts and withdrawal of Deposited Securities, or
the termination of this Deposit Agreement. The Depositary is under no obligation
to provide Holders or others with any information about the tax status of the
Issuer. The Depositary shall not incur any liability for any tax consequences
that may be incurred by Holders or any other persons on account of their
ownership of the American Depositary Shares, including without limitation, tax
consequences resulting from the Issuer (or any of its subsidiaries) being
treated 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.
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Section
3.3. Warranties on Deposit of
Shares.
Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
Shares and the certificates therefor are duly authorized, validly issued, fully
paid, non-assessable and were legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the American Depositary Shares issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
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ARTICLE
4. THE
DEPOSITED SECURITIES.
Section
4.1. Cash
Distributions.
Whenever the Depositary shall receive
any cash dividend or other cash distribution by the Company on any Deposited
Securities, the Depositary shall, subject to the provisions of Section 4.5,
convert such dividend or distribution into dollars and shall distribute the
amount thus received to the Holders of Receipts entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively; provided, that the
Depositary shall make appropriate adjustments in the amounts so distributed in
respect of (a) any of such Deposited Securities being not entitled, by reason of
date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) withheld or requested to be
withheld by the Company, the Custodian or the Depositary from any such
distribution on account of taxes or other governmental charges, or (ii) charged
by the Depositary pursuant to the provisions of the Deposit
Agreement. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder of a Receipt a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Owners entitled
thereto. Holders and holders of interests in American Depositary
Shares understand that in converting foreign currency, amounts received on
conversion are calculated at a rate which exceeds three or four decimal places
(the number of decimal places used by the Depositary to report distribution
rates). The excess amount may be retained by the Depositary as an
additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment. The Company
or its agent will remit to the appropriate governmental authority or agency
in Sweden all amounts withheld and owing to such authority or
agency. The Depositary will forward to the Company or its agent such
information from its records as the Company or its agent may reasonably
request to enable the Company or its agent to file necessary reports with
governmental authorities or agencies, and either the Depositary or the Company
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Holders of Receipts.
Section
4.2. Distributions Other Than
Cash or Shares.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give notice thereof to the Depositary along with an indication as
to whether or not it wishes such distribution to be made to
Holders. Promptly upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders and receipt of satisfactory
documentation within the terms of Section 5.7, the Depositary shall make a
reasonable determination whether such distribution to Holders is practicable,
and, to the extent it determines such distribution is practicable, shall make
such distribution.
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(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders 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 record date, in proportion to the number of
American Depositary Shares held by such Holders respectively and in such manner
as the Depositary may deem practicable for accomplishing such distribution (i)
upon receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes and other
governmental charges withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the
distribution.
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary reasonably determines that all or a portion
of such distribution is not lawful or reasonably practicable, the Depositary
shall endeavor to sell or cause such property to be sold in a public or private
sale, at such place or places and upon such terms as it may deem proper and
shall distribute the net proceeds, if any, of such sale received by the
Depositary (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes and governmental charges) to the Holders as of the
record date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances for nominal or no
consideration and Holders and holders of interests in American Depositary Shares
shall have no rights thereto or arising therefrom.
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Section
4.3. Distributions 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 record date upon the
terms described in Section 4.6 and shall, subject to Sections 4.8 and 5.9
hereof, either (i) distribute to the Holders as of the record date in proportion
to the number of American Depositary Shares held as of the record date,
additional American Depositary Shares, which represent in the aggregate the
number of Shares received as such dividend, or free distribution, subject to the
other terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and/or governmental charges), or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the record date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from the
Company (including an opinion of counsel to the Company furnished at the expense
of the Company) that such distribution does not require registration under the
Securities Act of 1933 or is exempt from registration under the provisions of
the Securities Act of 1933. To the extent such distribution may be
withheld, the Depositary may dispose of all or a portion of such distribution in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of applicable (a) taxes
and/or governmental charges and (b) fees and charges of, and expenses incurred
by, the Depositary) to Holders entitled thereto upon the terms described in
Section 4.1.
Section
4.4. Rights.
In the event that the Company shall
offer or cause to be offered to the holders of any Deposited Securities any
rights to subscribe for additional Shares or any rights of any other nature, the
Depositary shall have discretion as to the procedure to be followed in making
such rights available to the Holders of Receipts or in disposing of such
rights on behalf of such Holders and making the net proceeds available in
dollars to such Holders; provided, however, that the
Depositary will, if requested by the Company, take action as
follows:
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(i)
if at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights available to
Holders of Receipts by means of warrants or otherwise, the Depositary
shall distribute warrants or other instruments therefor in such
form as it may determine to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities, or employ such other method as it may deem
feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders; or
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(ii) if
at the time of the offering of any rights the Depositary determines that
it is not lawful or not feasible to make such rights available to Holders
of Receipts by means of warrants or otherwise, or if the rights
represented by such warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary in its discretion may sell
such rights or such warrants or other instruments at public or private
sale, at such place or places and upon such terms as it may deem proper,
and may allocate the proceeds of such sales for account of the Holders of
Receipts otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practicable basis without regard to any
distinctions among such Holders because of the application of exchange
restrictions to a particular Holder, or the date of delivery of any
Receipt or Receipts, or otherwise.
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If registration under the Securities
Act of 1933 of the securities to which any rights relate is required in
order for the Company to offer such rights to Holders of Receipts and
sell the securities represented by such rights, the Depositary will not offer
such rights to the Holders of Receipts unless and until such a registration
statement is in effect, or unless the offering and sale of such securities to
the Holders of such Receipts are exempt from registration under the provisions
of such Act.
In
exercising any discretion under this Section 4.4, the Depositary will, to the
extent practicable, consult with the Company.
The Company will have no obligation
hereunder to register such rights under the Securities Act of 1933.
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Section
4.5. Conversion of Foreign
Currency.
Whenever the Depositary shall receive
foreign currency, by way of dividends or other distributions or the net proceeds
from the sale of securities, property or rights, and if at the time of the
receipt thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into dollars and the resulting
dollars transferred to the United States, 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 such dollars shall be distributed to the
Holders of Receipts entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution to the
Holders may be made upon an averaged or other practicable basis without regard
to any distinctions among Holders on account of exchange
restrictions the date of delivery of any Receipt or otherwise and shall be
net of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.9 .
If such conversion or distribution to
the Holders can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into dollars
transferable to the United States, or if any approval or license of any
government authority or agency thereof which is required for such conversion is
denied or in the opinion of the Depositary is not obtainable, or if any such
approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its reasonable discretion may
hold such foreign currency uninvested and without liability for interest
thereon for the respective accounts of, the Holders of Receipts entitled to
receive the same.
If any such conversion of foreign
currency, in whole or in part, cannot be effected for distribution to some
Holders of Receipts entitled thereto, the Depositary may in its reasonable
discretion make such conversion and distribution in dollars to the extent
permissible to the Holders of Receipts entitled thereto and may
distribute the balance of the foreign currency received by the Depositary
to, or hold such balance, uninvested and without liability for interest thereon
for the respective accounts of, the Holders of Receipts entitled
thereto.
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Section
4.6. Fixing of Record
Date.
Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, 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 find it
necessary or convenient,, the Depositary shall fix a record date (which, in the
case of cash dividends, shall be as close as practicable to the
corresponding record date with respect to the Shares), after
consultation with the Company if practicable, if different from the record
date applicable to the Shares or other Deposited Securities, (a) for the
determination of the Holders of Receipts who shall be entitled to receive
such dividend, distribution or rights, or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any
such meeting or be responsible for any fee or charges assessed by the Depositary
pursuant to this Deposit Agreement or (b) on or after which each American
Depositary Share shall represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and to
the other terms and conditions of this Deposit Agreement, the Holders of
Receipts on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in
proportion to the number of American Depositary Shares held by them
respectively.
Section
4.7. Voting of Deposited
Securities.
Subject to the next sentence, as soon
as practicable after receipt of notice of any meeting at which the holders of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
record date in respect of such meeting or solicitation of consent or proxy. The
Depositary shall, if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least 30 days prior to the date of
such vote or meeting) and at the Company's expense and provided no U.S. legal
prohibitions exist, mail by regular, ordinary mail delivery (or by electronic
mail or as otherwise may be agreed between the Company and the Depositary in
writing from time to time) or otherwise distribute to Holders as of the record
date: (a) such notice of meeting or solicitation of consent or proxy; (b) a
statement that the Holders at the close of business on the applicable record
date will be entitled, subject to any applicable law, the Company’s Articles of
Incorporation and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares; and (c) a brief statement as to the manner
in which such instructions may be given, including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a designated member or members of the Board of Directors
of the Company. Voting instructions may be given only in respect of a
number of American Depositary Shares representing an integral number of Shares
or other Deposited Securities. Upon the timely receipt of written
instructions of a Holder on the record date of voting instructions in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of this Deposit
Agreement, the Company’s Articles of Incorporation and the provisions of or
governing the Deposited Securities, to vote or cause the Custodian to vote the
Shares and/or other Deposited Securities (in person or by proxy) represented by
American Depositary Shares evidenced by such Receipt in accordance with such
voting instructions.
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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.
Notwithstanding the above, save for
applicable provisions of Swedish law, and in accordance with the terms of
Section 5.3, the Depositary shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities or the manner in which such
vote is cast or the effect of any such vote.
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Section
4.8. Changes Affecting Deposited
Securities.
Upon any change in par value, split-up,
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is
otherwise a party, any securities which shall be received by the Depositary or
the Custodian in exchange for, or in conversion of or replacement or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law
and subject to the other provisions of this Deposit Agreement, be treated as new
Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's
approval, and shall, if the Company shall so request, to the extent permitted by
law and subject to the terms of 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 contained in Exhibit A hereto, specifically
describing such new Deposited Securities and/or corporate change. The Company
agrees to, jointly with the Depositary, amend the Registration Statement on Form
F-6 as filed with the Commission to permit the issuance of such new form of
Receipts. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall, if the Company requests, to the
extent permitted by law and practicable, subject to the other provisions of this
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities 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.
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Section
4.9.
Available
Information.
As of the date of the Deposit
Agreement, the Company publishes information in English required to maintain the
exemption from registration under Rule 12g3-2(b) under the Exchange Act on its
Internet Web site (xxx.xxx.xxx) or through an electronic information delivery
system generally available to the public in its primary trading market. Should
the Company become subject to the periodic reporting or other informational
requirements under the Exchange Act, it will be required in accordance therewith
to file reports and other information with the Commission. The
Depositary does not assume any duty to determine if the Company is complying
with the current requirements of Rule 12g3-2(b) under the Exchange Act or to
take any action if the Company is not complying with those
requirements.
The Company represents that as of the
date of this Deposit Agreement, the statements in this Section 4.9 with respect
to the exemption from registration under Rule 12g3-2(b) under the Exchange Act
are true and correct. The Company agrees to promptly notify the Depositary
and all Holders in the event of any change in the truth of any such
statements.
Section
4.10. Reports
The Depositary shall make available for
inspection by Holders of Receipts at the Depositary's Office any reports and
communications received from the Company which are both (a) received by the
Depositary 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 send to Holders of Receipts
copies of such reports when furnished by the Company pursuant to Section
5.6. Any such reports and communications furnished to the Depositary
by the Company shall be in English, to the extent required under the Securities
Exchange Act of 1934 and to the extent such reports and communications have been
translated by the Company.
Section
4.11. Lists of Receipt
Holders.
Promptly upon 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 by all persons in whose
names Receipts are registered on the books of the Depositary. At the
expense of the Company, the Company shall have the right to inspect during the
Depositary's regular business hours transfer and registration records of the
Depositary, the Receipt register and any co-transfer agents or co-registrars to
supply copies of such portions of such records as the Company may
request.
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Section
4.12. Withholding.
Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that
any distribution in property (including Shares or rights to subscribe
therefor) is subject to any tax 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 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 of Receipts entitled thereto.
ARTICLE
5. THE DEPOSITARY,
THE CUSTODIAN AND THE COMPANY.
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Section
5.1.
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Maintenance of Office
and Transfer Books by the
Depositary.
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Until termination of this Deposit
Agreement in accordance with its terms, the Depositary shall maintain in the
Borough of Manhattan, The City of New York, facilities for the execution and
delivery and surrender of Receipts in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep books in New
York City for the registration of Receipts and transfers of Receipts which
at all reasonable times shall be open for inspection by the Holders of
Receipts, provided that such
inspection shall not be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If any Receipts or the American
Depositary Shares represented thereby are listed on one or more stock exchanges
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 registry of such Receipts in accordance with any requirements of such
exchange or exchanges. Such Registrar or co-registrars may be removed
and a substitute appointed by the Depositary upon the request or with the
approval of the Company.
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Section
5.2.
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Prevention or Delay in
Performance by the Depositary or the Company
etc.
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Neither the Depositary, the Custodian
or the Company shall be obligated to do or perform any act which is inconsistent
with the provisions of this Deposit Agreement or shall incur any liability (i)
if the Depositary, the Custodian or the Company or their respective controlling
persons or agents shall be prevented or forbidden from, or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement and
any Receipt, by reason of any provision of any present or future law or
regulation of the United States or any state thereof, the Kingdom of Sweden or
any other country, or of any other governmental authority or regulatory
authority or stock exchange, or on account of the possible criminal or civil
penalties or restraint, or by reason of any provision, present or future, of the
Company’s Articles of Incorporation or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Company’s Articles of Incorporation or
provisions of or governing Deposited Securities, (iii) for any action or
inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any holder of an interest in American Depositary Shares or
Receipts 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 holder of an interest in American
Depositary Shares or Receipts to benefit from any distribution, offering, right
or other benefit which is made available to holders of Deposited Securities but
is not, under the terms of this Deposit Agreement, made available to Holders of
American Depositary Shares or (v) for any special, consequential, indirect or
punitive damages for any breach of the terms of this Deposit Agreement or
otherwise.
In no event shall the Depositary, the
Company or any of their respective directors, officers, employees, agents
(including, without limitation, the Agents of the Depositary) and/or Affiliates,
or any of them, be liable for any indirect, special, punitive or consequential
damages to each other, Holders, Beneficial Owners or any other
person.
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The Depositary, its controlling
persons, its agents, the Custodian and the Company, its controlling persons and
its agents may rely and shall be protected in acting upon any written notice,
request, opinion or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
No disclaimer of liability under the
Securities Act of 1933 is intended by any provision of this Deposit
Agreement.
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Section
5.3.
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Obligations of the
Depositary, the Custodian and the
Company.
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The Company and the Depositary and
their respective agents assume no obligation and shall not be subject to any
liability under this Deposit Agreement or any Receipts to any Holder(s) or
holder(s) of an interest in American Depositary Shares or Receipts or other
persons (except for the Company’s and the Depositary’s obligations specifically
set forth in Section 5.8), provided, that the Company and the Depositary and
their respective agents agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable Receipts
without gross negligence or willful misconduct.
Without limitation of the foregoing,
neither the Depositary, nor the Company, nor any of their respective controlling
persons, or agents, shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expenses
(including fees and disbursements of counsel) and liabilities be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary).
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The Depositary and its agents shall not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast (provided that
any such action or omission is in good faith) or the effects of any
vote. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of American
Depositary Shares, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of this Deposit
Agreement or for the failure or timeliness of any notice from the Company, or
for any action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares for
deposit, any Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its
agents shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without gross negligence or willful misconduct while it acted as
Depositary.
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Section
5.4.
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Resignation and
Removal of the Depositary; Appointment of
Successor Depositary.
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The Depositary may at any time resign
as Depositary hereunder by written notice of its election so to do delivered to
the Company, such resignation to take effect upon the appointment 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 effective upon the
appointment 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. If the Company shall have used its best efforts to appoint
a successor depositary it shall have no liability to the Holders for any failure
to appoint such a successor. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, shall
duly assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of
the Holders of all outstanding Receipts. Any such successor
depositary shall promptly mail notice of its appointment to the Holders of
Receipts.
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Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further
act.
Section
5.5. The
Custodian.
The
Depositary has initially appointed Svenska Handelsbanken as Custodian and agent
of the Depositary for the purposes of this Deposit Agreement. Each
Custodian in acting hereunder shall be subject at all times and in all respects
to the directions of the Depositary and shall be responsible solely to
it. Each Custodian may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the Depositary at least 30
days prior to the date on which such resignation is to become
effective. The Depositary shall, promptly after receiving such
notice, after consultation with the Company if practicable, appoint a substitute
custodian, which shall thereafter be the Custodian
hereunder. Whenever the Depositary in its reasonable discretion
determines that it is in the best interest of the Holders of Receipts to do so,
it may appoint a substitute or an additional custodian, which shall
thereafter be a Custodian hereunder, and upon demand of the Depositary the
previous Custodian shall deliver the Deposited Securities held by it to such
substitute custodian. Each such substitute custodian shall
deliver to the Depositary forthwith upon its appointment an acceptance of such
appointment satisfactory in form and substance to the
Depositary. Promptly upon any such change, the Depositary shall give
notice thereof in writing to all Holders. The Depositary may
discharge or appoint any Custodian only after consultation with the
Company, if practicable.
Upon the
appointment of any successor depositary hereunder, any Custodian then acting
hereunder shall forthwith become, without any further act or writing, the
agent hereunder of such successor depositary and the appointment of such
successor depositary shall in no way impair the authority of any Custodian
hereunder; but 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 as agent hereunder of such successor depositary.
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Section
5.6. Notices and
Reports.
On or before the first date of giving
by the Company of notice, by publication or otherwise, of any meeting of
holders of Deposited Securities, or of any adjourned meeting of such holders, or
of the taking of any action in respect of any cash or distributions or the
offering of any rights, the Company agrees to transmit to the Custodian a
copy of the notice thereof in the form given or to be given to holders of
Deposited Securities.
The Depositary will, at the Company's
expense, arrange for the prompt transmittal by the Custodian to the Depositary
of such notices and any other reports and communications which are made
generally available by the Company to holders of its Shares, and arrange for the
mailing, at the Company's expense, of copies thereof to all Holders of
Receipts.
Section
5.7. Issuance of Additional
Shares, etc.
The Company agrees that in the event it
or any of its affiliates proposes (i) an issuance, sale or distribution of
additional Shares, (ii) an offering of rights to subscribe for Shares or other
Deposited Securities, (iii) an issuance of securities convertible into or
exchangeable for Shares, (iv) an issuance of rights to subscribe for securities
convertible into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of
Deposited Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger, subdivision, amalgamation or
consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, amalgamation, consolidation or sale of
assets which affects the Deposited Securities, it will obtain U.S. legal advice
and take all steps necessary to ensure that the application of the proposed
transaction to Holders and Beneficial Owners does not violate the registration
provisions of the Securities Act of 1933, or any other applicable laws
(including, without limitation, the Investment Company Act of 1940, as amended,
the Exchange Act or the securities laws of the states of the United
States). In support of the foregoing or at the reasonable request of
the Depositary where it deems necessary, the Company will furnish to the
Depositary, at its own expense (a) a written opinion of U.S. counsel (reasonably
satisfactory to the Depositary) stating whether or not application of such
transaction to Holders and Beneficial Owners and/or the circumstances of such
issue are such as to make it necessary for a registration statement under the
Securities Act of 1933 to be in effect prior to the delivery of the Receipts to
be issued in connection with such securities or the issuance of such rights (b)
an opinion of Swedish counsel (reasonably satisfactory to the Depositary)
stating that (1) making the transaction available to Holders and Beneficial
Owners does not violate the laws or regulations of Sweden and (2) all requisite
regulatory consents and approvals have been obtained in the Kingdom of
Sweden. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective and that such distribution is
in accordance with all applicable laws or regulations. If, being
advised by counsel, the Company reasonably determines that a transaction is
required to be registered under the Securities Act of 1933, 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 of 1933 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
of 1933.
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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 of 1933 or have been registered under the Securities Act of
1933 (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.
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Section
5.8. Indemnification.
The Company agrees to indemnify the
Depositary, any Custodian and each of their respective directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any losses, liabilities, taxes, costs, claims, judgments, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable attorney’s fees and expenses and, in each case, fees and
expenses of counsel, in each case, irrevocable value added tax and any similar
tax charged or otherwise imposed in respect thereof) (collectively referred to
as “Losses”) which the Depositary or any agent thereof may incur or which may be
made against it as a result of or in connection with its appointment or the
exercise of its powers and duties under this Agreement or that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or in connection with any
offering documents in respect thereof or (c) out of or in connection with acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the Receipts, the American Depositary
Shares, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and affiliates, except to the extent any such Losses directly
arise out
of the negligence or bad faith of any of them, or (ii) by the Company or any of
its directors, officers, employees, agents and affiliates.
The Depositary agrees to indemnify the
Company and hold it harmless from any liability which may arise out of acts
performed or omitted by the Depositary or any Custodian due to their
negligence or bad faith.
Any person seeking indemnification
hereunder (an "Indemnified Person") shall notify the person from whom it is
seeking indemnification (the "Indemnifying Person") of the commencement of any
indemnifiable action or claim promptly after such Indemnified Person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such Indemnified Person's rights to indemnification except to
the extent the Indemnifying Person is materially prejudiced by such failure) and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim that may give rise to an indemnity
hereunder, which defense shall be reasonable under the circumstances. No
Indemnified Person shall compromise or settle any action or claim that may give
rise to an indemnity hereunder without the consent of the Indemnifying Person,
which consent shall not be unreasonably withheld.
The obligations set forth in this
Section shall survive the termination of this Deposit Agreement and the
succession or substitution of any party hereto.
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Section
5.9. Charges of
Depositary.
The Company agrees to pay the fees,
reasonable expenses and out-of-pocket charges of the Depositary and those of any
Registrar only in accordance with agreements in writing entered into between the
Depositary and the Company from time to time. The Depositary shall
present its statement for such charges and expenses to the Company once every
three months. The charges and expenses of any Custodian are for the
sole account of the Depositary.
The following charges shall be incurred
by any party depositing or withdrawing Shares or by any party surrendering
Receipts or to whom Receipts 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 Receipts or Deposited
Securities or a distribution of Receipts pursuant to Section 4.3 hereof),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the share register of the Company (or the
appointed agent of the Company for transfer and recordation of Shares which may
but need not be Euroclear) and accordingly applicable to transfers of Shares to
the name of the Depositary or its nominee or the Custodian or its nominee
on the making of deposits or withdrawals hereunder, (3) such cable, telex
and facsimile transmission expenses as are expressly provided in this Deposit
Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.5, (5) a fee not
in excess of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to Section 2.3, the
execution and delivery of Receipts pursuant to Section 4.3 and the surrender of
Receipts pursuant to Section 2.5, (6) a fee not in excess of $.02 or less per
American Depositary Share (or portion thereof) for any distribution made
pursuant to the Deposit Agreement including, but not limited to Sections 4.1
through 4.4 hereof and, (7) a fee not in excess of $1.50 or less per certificate
for a Receipt or Receipts for transfers made pursuant to Section
2.4.
The
Depositary, subject to Section 2.9 hereof and any applicable provisions of
Swedish law and the Articles of Association of the Company, may own and deal in
any class of securities of the Company and its affiliates and in
Receipts.
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ARTICLE
6. AMENDMENT
AND TERMINATION.
Section
6.1. Amendment.
The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary (without the consent
of Holders) in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or
charges (other than taxes and other governmental charges), or which shall
otherwise prejudice any substantial existing right of Holders of
Receipts, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of amendment to this Deposit
Agreement shall have been given to the Holders of outstanding Receipts.
Every Holder of a Receipt at the time any amendment to this Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. Notice of any amendment to the Deposit Agreement or
form of Receipts shall not need to describe in detail the specific amendments
effectuated thereby, and failure to describe the specific amendments in any such
notice shall not render such notice invalid, provided, however, that, in each
such case, the notice given to the Holders identifies a means for Holders to
retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission's, the Depositary's or the Company's website or upon request from the
Depositary). 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 of 1933 or (b) the American Depositary Shares
or the Shares to be traded solely in electronic book-entry form and (ii) do not
in either such case impose or increase any fees or charges to be borne by
Holders, shall be deemed not to materially prejudice any substantial rights of
Holders. Every Holder 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.
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Section
6.2. Termination.
The Depositary shall at any time at the
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. The Depositary may likewise terminate this Deposit
Agreement if at any time 90 days shall have expired after the Depositary
shall have delivered to the Company and the Holders a written notice of its
election to resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.4. If any
Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Receipts, 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, 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, in each case, the fee of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of six months from the
date of termination, the Depositary may sell the Deposited Securities then
held hereunder and may thereafter hold the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Holders of Receipts
which have not theretofore surrendered their Receipts, such Holders thereupon
becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement, except to account
for such net proceeds and other cash (after deducting, in each case, the fee of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations to the Company under Section 5.8. 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 and 5.9 hereof.
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ARTICLE
7. 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 shall constitute one and the same
instrument. Copies of this Deposit Agreement shall be filed with the
Depositary and the Custodian and shall be open to inspection by any Holder
of a Receipt during business hours.
Section
7.2. No Third Party
Beneficiaries.
This Deposit Agreement is for the
exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
Nothing in this Deposit Agreement shall be deemed to give rise to a partnership
or joint venture among the parties hereto nor establish a fiduciary or similar
relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its affiliates may at any time have multiple
banking relationships with the Company and its affiliates, (ii) the Depositary
and its affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or others may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its affiliates from engaging in such transactions or establishing or maintaining
such relationships, or (b) obligate the Depositary or any of its affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
Section
7.3. Severability.
In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no wise be affected, prejudiced or disturbed thereby.
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Section
7.4. Holders Parties; Binding
Effect.
The Holders of Receipts from time to
time shall be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance thereof. Each
Holder and owner of an interest in American Depositary Shares or Receipts agrees
that, by accepting a Receipt or an interest therein, such Holder or owner shall
hold such American Depositary Shares subject to, and with the obligation of
applicable law, and the provisions hereof.
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 or cable, telex or facsimile transmission confirmed by letter,
addressed to Svenska Cellulosa Aktiebolaget SCA, Klxxxxxxxxxxxxxxxxx 00, 000 00
Xxxxxxxxx, Xxxxxx , Attention: Xxxxxx Xxxxxx. telephone: 00 0-000 00 00,
facsimile: 46 8-788 53 32, or any other place to which the Company may have
transferred its principal office.
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 or cable, telex or facsimile transmission confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, 60 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, XXX Xttention: ADR Department,
telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000, or any other place to
which the Depositary may have transferred its office for the administration of
depositary receipts.
Any and all notices to be given to any
Holder of a Receipt 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 designated in such
request.
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Delivery
of a notice sent by mail or cable, telex or facsimile transmission shall be
deemed to be effected 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. 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
of a Receipt, notwithstanding that such cable, telex or facsimile transmission
shall not subsequently be confirmed by letter as aforesaid.
Section
7.6. Governing Law;
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 Xxxxxxxxxx Swartling Advokatbyrå LLP, Attn:
Xxxxx Xxxxxxxxx Xxxxx, 100 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, XXX xhe
"Agent") , as its
authorized agent to receive and accept for and on its behalf, and on behalf of
its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in the City of New York on the terms and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
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Notwithstanding the foregoing, the
Depositary and the Company unconditionally agree that in the event that a Holder
or Beneficial Owner brings a suit, action or proceeding against (a) the Company,
(b) the Depositary in its capacity as Depositary under this Deposit Agreement or
(c) against both the Company and the Depositary, in any state or federal court
of the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending, and for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of venue of any actions, suits
or proceedings brought in any court as provided in this Section 7.6, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
The provisions of this Section 7.6
shall survive any termination of this Deposit Agreement, in whole or in
part.
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Section
7.7. Compliance With U.S.
Securities Laws.
Notwithstanding any provision of this
Deposit Agreement to the contrary, Holders shall be entitled to withdraw
Deposited Securities subject only to the conditions set forth in paragraph
I.A.(1) of the General Instructions (or any successor provisions thereto), as in
effect from time to time, to Form F-6 as prescribed by
the Commission under the Securities Act of 1933.
Section
7.8 Titles;
References.
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 holders of interests in American Depositary Shares or
Receipts 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. References herein to the laws of
the Kingdom of Sweden shall include references to the laws, rules and
regulations of the Kingdom of Sweden and any and all communities, provinces and
states thereof.
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IN WITNESS WHEREOF, SVENSKA CELLULOSA
AKTIEBOLAGET SCA and DEUTSCHE BANK TRUST COMPANY AMERICAS have duly executed
this agreement as of the day and year first above set forth and all Holders of
Receipts shall become parties hereto upon acceptance by them of Receipts issued
in accordance with the terms hereof.
SVENSKA CELLULOSA AKTIEBOLAGET
SCA
By________________________________
Name:
Title:
DEUTSCHE
BANK TRUST COMPANY
AMERICAS
By________________________________
Name:
Title:
By________________________________
Name:
Title:
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Exhibit A
to Deposit Agreement
No.
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary
Share
represents one
deposited
Share)
DEUTSCHE
BANK TRUST COMPANY AMERICAS
AMERICAN
DEPOSITARY RECEIPT
FOR
NON-RESTRICTED B SHARES
OF
SVENSKA
CELLULOSA AKTIEBOLAGET SCA
(INCORPORATED
UNDER THE LAWS OF THE KINGDOM OF SWEDEN)
Deutsche
Bank Trust Company Americas, as depositary (hereinafter called the
"Depositary"), hereby certifies that ,
or registered assigns IS THE OWNER OF
AMERICAN
DEPOSITARY SHARES
representing
deposited Non-Restricted B Shares (herein called "Shares") of Svenska Cellulosa
Aktiebolaget SCA, incorporated under the laws of the Kingdom of Sweden (herein
called the "Company"). At the date hereof, each American Depositary
Share represents one Share which is either deposited or subject to deposit under
the Deposit Agreement (as defined below) at the principal Stockholm office of
Svenska Handelsbanken (herein called the "Custodian"), as agent for the
Depositary. The Depositary’s Office is located at 60 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
THE
DEPOSITARY'S OFFICE ADDRESS IS 60 XXXX XXXXXX, XXX XXXX,
X.X. 00000
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1. THE DEPOSIT
AGREEMENT. This American
Depositary Receipt is one of an issue (herein called "Receipts"), all issued and
to be issued upon the terms and conditions set forth in the amended and restated
deposit agreement, dated as of April , 2010 (as hereinafter amended
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a
party thereto and become bound by all the terms and conditions thereof.
The Deposit Agreement sets forth the rights of Holders of the Receipts and
the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares,
securities, property, and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Depositary's
Office in New York City and at the office of the Custodian. The
statements made on the face and reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject to
the detailed provisions of the Deposit Agreement, to which reference is hereby
made. Capitalized terms not defined herein shall have the meanings set forth in
the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND
WITHDRAWAL OF SHARES. Upon
surrender at the Depositary's Office or at such other offices as it may
designate of a Receipt for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the surrender of Receipts and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of the Deposit Agreement and
applicable law or regulation, the Holder hereof shall be entitled to
physical or electronic delivery through Euroclear or institutions that
maintain accounts with Euroclear, to him or upon his order, of the amount
of Deposited Securities at the time represented by such
Receipt. Physical delivery of such Deposited Securities may be made,
if such delivery is possible, by the delivery of certificates therefor
properly endorsed or accompanied by proper instruments of transfer to such
Holder or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay. A Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank, and
the Holder hereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn
to be either physically (subject to applicable clearing procedure of Euroclear)
or electronically delivered to or upon the written order of the person or
persons designated in such order. Thereupon the Depositary shall
direct the Custodian to deliver at the office of the Custodian, subject to the
terms and conditions of the Deposit Agreement, to or upon the written order
of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
this Receipt or evidence of electronic transfer thereof to or for the account of
such person, except that the Depositary may make delivery to such person or
persons at the Depositary's Office of any dividends or distributions with
respect to the Deposited Securities represented by this Receipt, or of any
proceeds of sale of any dividends, distributions or rights, which may at
the time be held by the Depositary. If the Deposited Securities
being withdrawn are deliverable in certificated form, at the request, risk and
expense of any Holder surrendering a Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward a certificate or
certificates and other proper documents of title for the Deposited
Securities represented by such Receipt to the Depositary for delivery at
the Depositary's Office. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission. The surrender of outstanding Receipts
and withdrawal of Deposited Securities may not be suspended, except as
required in connection with (i) temporary delays caused by closing the transfer
books of the Depositary or the Company (or the appointed agent for the
Company for the transfer and registration of Shares) 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.
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3. TRANSFERS, SPLIT-UPS, AND
COMBINATIONS OF RECEIPTS. The
Depositary shall register transfers on its transfer books from time to time of
this Receipt, upon any surrender of this receipt, by the Holder hereof in person
or by a duly authorized attorney, properly endorsed for transfer or
accompanied by proper instruments of transfer. This Receipt may be
split into other such Receipts, or may be combined with other such Receipts into
one Receipt, representing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. 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 for the Custodian may require payment from
the presentor 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 as provided in this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with laws or governmental regulations relating to
American depositary receipts or to the withdrawal of Deposited
Securities.
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 transfer or
surrender of outstanding Receipts generally may be suspended, during any period
when the transfer books of the Depositary are closed, or if any such action is
deemed necessary or advisable by the Depositary or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental authority, body or commission, or under any provision of the
Deposit Agreement or this Receipt, or for any other reason, subject to
Article (22) hereof. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the provisions of the Securities Act of
1933 for the public offer and sale thereof in the United States, unless a
registration statement is in effect as to such Shares for such offer and
sale.
The
Depositary will use reasonable efforts to comply with written instructions of
the Company not to accept for deposit under the Deposit Agreement 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 the securities laws in the United States, including,
without limitation, the laws referenced in Article (22).
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4. LIABILITY OF HOLDER FOR
TAXES. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian, the Depositary or the Company with respect to
any Receipt or any Deposited Securities, the right to receive which is
represented by the American Depositary Shares evidenced hereby, including any
taxes payable on transfer, such tax or other governmental charge shall be
payable by the Holder hereof to the Depositary. The Depositary may, and
upon instructions from the Company shall, (i) refuse to effect any registration
of transfer of this Receipt or any split-up or combination hereof or any
withdrawal of Deposited Securities until such payment is made, or (ii) withhold
or deduct from any distributions on such Deposited Securities, or sell for the
account of the Holder hereof any part or all of such Deposited Securities (after
attempting by reasonable means to notify such Holder prior to such sale), and
apply after deduction for its expenses incurred in connection therewith, the net
proceeds of any such sale in payment of such tax or other governmental charge,
the Holder hereof remaining liable for any deficiency. Every Holder
and holder of an interest in American Depositary Shares agrees to indemnify the
Depositary, the Company, the Custodian, and each of their respective agents,
officers, directors, employees and affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or holder. The obligations of Holders and holders of interests in
American Depositary Shares under Article (4) and Section 3.2 of the Deposit
Agreement shall survive any transfer of Receipts, any surrender of Receipts and
withdrawal of Deposited Securities, or the termination of the Deposit Agreement.
The Depositary is under no obligation to provide Holders or others with any
information about the tax status of the Issuer. The Depositary shall not incur
any liability for any tax consequences that may be incurred by Holders or any
other persons on account of their ownership of the American Depositary Shares,
including without limitation, tax consequences resulting from the Issuer (or any
of its subsidiaries) being treated 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.
5. WARRANTIES OF
DEPOSITORS. Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
Shares and the certificates therefor are duly authorized, validly issued, fully
paid, non-assessable and were legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the American Depositary Shares issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
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6. FILING PROOFS, CERTIFICATES,
AND OTHER INFORMATION. Any person presenting Shares for
deposit or any Holder of a Receipt may be required from time to time to file
with the Depositary or the Custodian such proof of citizenship or residence,
exchange control approval, or such information relating to the registration on
the books of the Company (or the appointed agent of the Company for transfer and
registration of Shares, which may but need not be Euroclear) of the Shares
presented for deposit or other information, to execute such certificates and to
make such representations and warranties, as the Depositary or the Company may
deem necessary or proper. The Depositary may and, at the written
request of the Company, will withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made or such
other documentation or information provided, in each case to the Depositary’s
satisfaction.
7. CHARGES OF
DEPOSITARY. The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary
and the Company from time to time. The Depositary shall present its
statement for such charges and expenses to the Company once every three months.
The charges and expenses of any Custodian are for the sole account of the
Depositary.
The following charges shall be incurred
by any party depositing or withdrawing Shares or by any party surrendering
Receipts or to whom Receipts 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 Receipts or Deposited
Securities or a distribution of Receipts pursuant to Section 4.3 of the Deposit
Agreement), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the share register of the
Company (or the appointed agent of the Company for transfer and recordation of
Shares which may but need not be Euroclear) and accordingly applicable to
transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee on the making of deposits or withdrawals
hereunder, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.5 of the Deposit Agreement, (5) a fee not in excess of
$5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3 of the Deposit
Agreement, the execution and delivery of Receipts pursuant to Section 4.3 of the
Deposit Agreement and the surrender of Receipts pursuant to Section 2.5 of the
Deposit Agreement, (6) a fee not in excess of $.02 or less per American
Depositary Share (or portion thereof) for any distribution made pursuant to
the Deposit Agreement including, but not limited to Sections 4.1 through 4.4 of
the Deposit Agreement and, (7) a fee not in excess of $1.50 or less per
certificate for a Receipt or Receipts for transfers made pursuant to
Section 2.4 of the Deposit Agreement.
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The
Depositary, subject to Article (8) hereof and any applicable provisions of
Swedish law and the Articles of Association of the Company, may own and deal in
any class of securities of the Company and its affiliates and in
Receipts.
8. LOANS AND PRE-RELEASE OF
SHARES AND RECEIPTS. Notwithstanding
Section 2.03 of the Deposit Agreement, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 of the
Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to
Section 2.5 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation
from the person to whom Receipts are to be delivered that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash 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 number of
American Depositary Shares which are outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; 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 compensation received by it
in connection with the foregoing. The Company
shall not incur any liability to the Holders and Owners of Receipts as a result
of actions taken by the Depositary pursuant to this Article (8).
9. TITLE TO RECEIPTS.
Subject to the limitations contained herein and in the Deposit Agreement, title
to this Receipt (and to the American Depositary Shares evidenced hereby), when
properly endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof. By accepting or holding this Receipt or an interest in
American Depositary Shares, every successive owner and Holder of this Receipt
consents and agrees to all of the provisions set forth in this Receipt and in
the Deposit Agreement.
10. 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 shall have been executed by the Depositary
by the manual signature of a duly authorized officer or, if a Registrar
shall have been appointed, by the manual signature of a duly authorized officer
of the Registrar.
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11. REPORTS; INSPECTION OF
TRANSFER BOOKS. As of the
date of the Deposit Agreement, the Company publishes information in English
required to maintain the exemption from registration under Rule 12g3-2(b) under
the Exchange Act on its Internet Web site (xxx.xxx.xxx) or through an electronic
information delivery system generally available to the public in its primary
trading market. Should the Company become subject to the periodic reporting or
other informational requirements under the Exchange Act, it will be required in
accordance therewith to file reports and other information with the
Commission. The Depositary does not assume any duty to determine if
the Company is complying with the current requirements of Rule 12g3-2(b) under
the Exchange Act or to take any action if the Company is not complying with
those requirements. The Company represents that as of the date of the
Deposit Agreement, the statements in this Section 4.9 with respect to the
exemption from registration under Rule 12g3-2(b) under the Exchange Act are true
and correct. The Company agrees to promptly notify the Depositary and all
Holders in the event of any change in the truth of any such
statements.
The
Depositary shall make available for inspection by Holders of Receipts at the
Depositary's Office any reports and communications received from the
Company which are both (a) received by the Depositary 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 send
to Holders of Receipts copies of such reports when furnished by the Company
pursuant to Section 5.6 of the Deposit Agreement. Any such reports and
communications furnished to the Depositary by the Company shall be in English to
the extent required under the Securities Exchange Act of 1934 and to the extent
such reports and communications have been translated by the
Company.
The
Depositary shall keep books in New York City for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Holders of Receipts, provided, that such
inspection shall not be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the
Receipts.
12. DIVIDENDS AND
DISTRIBUTIONS. Whenever the Depositary shall receive any cash
dividend or other cash distribution by the Company on any Deposited
Securities, the Depositary shall, subject to the provisions of Section 4.5
of the Deposit Agreement, convert such dividend or distribution into dollars and
shall distribute the amount thus received to the Holders of Receipts entitled
thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided, that the
Depositary shall make appropriate adjustments in the amounts so distributed in
respect of (a) any of such Deposited Securities being not entitled, by reason of
date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) withheld or requested to be
withheld by the Company, the Custodian or the Depositary from any such
distribution on account of taxes or other governmental charges, or (ii) charged
by the Depositary pursuant to the provisions of the Deposit
Agreement. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder of a Receipt a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Owners entitled thereto. Holders and
holders of interests in American Depositary Shares understand that in converting
foreign currency, amounts received on conversion are calculated at a rate which
exceeds three or four decimal places (the number of decimal places used by the
Depositary to report distribution rates). The excess amount may be
retained by the Depositary as an additional cost of conversion, irrespective of
any other fees and expenses payable or owing hereunder and shall not be subject
to escheatment.
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Whenever the Company intends to
distribute to the holders of Deposited Securities property other than cash,
Shares or rights to purchase additional Shares, the Company shall give notice
thereof to the Depositary along with an indication as to whether or not it
wishes such distribution to be made to Holders. Promptly upon
receipt of a notice indicating that the Company wishes such distribution be made
to Holders and receipt of satisfactory documentation within the terms of Section
5.7, the Depositary shall make a reasonable determination whether such
distribution to Holders is practicable, and, to the extent it determines such
distribution is practicable, shall make such distribution. Upon receipt of
satisfactory documentation and the request of the Company to distribute property
to Holders 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 record date, in proportion to the number of American Depositary
Shares held by such Holders respectively and in such manner as the Depositary
may deem practicable for accomplishing such distribution (i) upon receipt of
payment or net of the applicable fees and charges of, and expenses incurred by,
the Depositary, and (ii) net of any taxes and other governmental charges
withheld. The Depositary may dispose of all or a portion of the
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If (i) the Company does not request the
Depositary to make such distribution to Holders or requests not to make such
distribution to Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 5.7, or (iii) the Depositary
reasonably determines that all or a portion of such distribution is not lawful
or reasonably practicable, the Depositary shall endeavor to sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the net proceeds, if
any, of such sale received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders as of the record date upon the terms of
Section 4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no consideration and Holders
and holders of interests in American Depositary Shares shall have no rights
thereto or arising therefrom. The Holders alone shall be responsible for
payment of any taxes or other governmental charges due as a result of sales
or transfers pursuant hereto.
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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 record date upon the
terms described in Section 4.6 of the Deposit Agreement and shall, subject to
Sections 4.8 and 5.9 thereof, either (i) distribute to the Holders as of the
record date in proportion to the number of American Depositary Shares held as of
the 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 the Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes and/or governmental charges), or (ii) if additional
American Depositary Shares are not so distributed, each American Depositary
Share issued and outstanding after the record date shall, to the extent
permissible by law, thenceforth also represent rights and interests in the
additional Shares distributed upon the Deposited Securities represented thereby
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges). In lieu of
delivering fractional American Depositary Shares, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the proceeds upon the terms described in Section 4.1 of the Deposit Agreement.
The Depositary may withhold any such distribution of Receipts if it has not
received satisfactory assurances from the Company (including an opinion of
counsel to the Company furnished at the expense of the Company) that such
distribution does not require registration under the Securities Act of 1933 or
is exempt from registration under the provisions of the Securities Act of
1933. To the extent such distribution may be withheld, the Depositary
may dispose of all or a portion of such distribution in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of applicable (a) taxes and/or governmental charges
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1 of the Deposit
Agreement.
Notwithstanding
any other provision of this Receipt or the Deposit Agreement, in the event
that the Depositary determines that any distribution in property (including
Shares or rights to subscribe therefor) is subject to any tax 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 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 of Receipts entitled
thereto.
13. CONVERSION OF FOREIGN
CURRENCY. Whenever the Depositary shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into dollars and the resulting dollars
transferred to the United States, 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 such dollars shall be distributed to the Holders of
Receipts entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such dollars,
then to the holders of such warrants and/or instruments upon surrender
thereof for cancellation. Such distribution to the Holders may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in
Section 5.9 of the Deposit Agreement and/or Article (7)
hereof.
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If such
conversion or distribution to the Holders can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem
desirable.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into dollars
transferable to the United States, or if any approval or license of any
government authority or agency thereof which is required for such conversion is
denied or in the opinion of the Depositary is not obtainable, or if any such
approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its reasonable discretion may
hold such foreign currency uninvested and without liability for interest
thereon for the respective accounts of, the Holders of Receipts entitled to
receive the same.
If any such conversion of foreign
currency, in whole or in part, cannot be effected for distribution to some
Holders of Receipts entitled thereto, the Depositary may in its reasonable
discretion make such conversion and distribution in dollars to the extent
permissible to the Holders of Receipts entitled thereto and may
distribute the balance of the foreign currency received by the Depositary
to, or hold such balance, uninvested and without liability for interest thereon
for the respective accounts of, the Holders of Receipts entitled
thereto.
14. RIGHTS. In
the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to the
Holders of Receipts or in disposing of such rights on behalf of such
Holders and making the net proceeds available in dollars to such Holders; provided, however, that the
Depositary will, if requested by the Company, take action as
follows:
(i)
if at the time of the offering of any rights the Depositary determines that it
is lawful and feasible to make such rights available to Holders of Receipts by
means of warrants or otherwise, the Depositary shall distribute warrants or
other instruments therefor in such form as it may determine to the Holders
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities, or employ such other method as it
may deem feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders; or
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(ii)
if at the time of the offering of any rights the Depositary determines that it
is not lawful or not feasible to make such rights available to Holders of
Receipts by means of warrants or otherwise, or if the rights represented by
such warrants or such other instruments are not exercised and appear to be about
to lapse, the Depositary in its discretion may sell such rights or such
warrants or other instruments at public or private sale, at such place or places
and upon such terms as it may deem proper, and may allocate the proceeds of such
sales for account of the Holders of Receipts otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of the application
of exchange restrictions to a particular Holder, or the date of delivery of
any Receipt or Receipts, or otherwise.
If
registration under the Securities Act of 1933 of the securities to which
any rights relate is required in order for the Company to offer such rights to
Holders of Receipts and sell the securities represented by such rights,
the Depositary will not offer such rights to the Holders of Receipts unless and
until such a registration statement is in effect, or unless the offering and
sale of such securities to the Holders of such Receipts are exempt from
registration under the provisions of such Act.
The
Company will have no obligation hereunder to register such rights under the
Securities Act of 1933.
15. RECORD
DATES. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued with respect to the Deposited Securities, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, 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 find it necessary or
convenient,, the Depositary shall fix a record date (which, in the case of cash
dividends, shall be as close as practicable to the corresponding record
date with respect to the Shares), after consultation with the Company if
practicable, if different from the record date applicable to the Shares or
other Deposited Securities, (a) for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution or
rights, or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting or be responsible for any
fee or charges assessed by the Depositary pursuant to the Deposit Agreement or
(b) on or after which each American Depositary Share shall represent the
changed number of Shares. Subject to the provisions of Sections 4.1
through 4.5 of the Deposit Agreement and to the other terms and conditions of
the Deposit Agreement, the Holders of Receipts on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds
of sale thereof in proportion to the number of American Depositary Shares
held by them respectively.
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16. VOTING OF DEPOSITED
SECURITIES. Subject to the next
sentence, as soon as practicable after receipt of notice of any meeting at which
the holders of Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited Securities, the Depositary
shall fix the record date in respect of such meeting or solicitation of consent
or proxy. The Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least 30 days
prior to the date of such vote or meeting) and at the Company's expense and
provided no U.S. legal prohibitions exist, mail by regular, ordinary mail
delivery (or by electronic mail or as otherwise may be agreed between the
Company and the Depositary in writing from time to time) or otherwise distribute
to Holders as of the record date: (a) such notice of meeting or solicitation of
consent or proxy; (b) a statement that the Holders at the close of business on
the applicable record date will be entitled, subject to any applicable law, the
Company’s Articles of Incorporation and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's American Depositary Shares; and (c) a brief
statement as to the manner in which such instructions may be given,
including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a designated member or members
of the Board of Directors of the Company. Voting instructions may be
given only in respect of a number of American Depositary Shares representing an
integral number of Shares or other Deposited Securities. Upon the
timely receipt of written instructions of a Holder on the record date of voting
instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, the Company’s Articles of Incorporation and
the provisions of or governing the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities (in person or by
proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions.
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.
Notwithstanding the above, save for
applicable provisions of Swedish law, and in accordance with the terms of
Section 5.3 of the Deposit Agreement and Article (18) hereof, the Depositary
shall not be liable for any failure to carry out any instructions to vote any of
the Deposited Securities or the manner in which such vote is cast or the effect
of any such vote.
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17. CHANGES AFFECTING DEPOSITED
SECURITIES. Upon any change in par value, split-up,
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is
otherwise a party, any securities which shall be received by the Depositary or
the Custodian in exchange for, or in conversion of or replacement or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law
and subject to the other provisions of this Deposit Agreement, be treated as new
Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's
approval, and shall, if the Company shall so request, to the extent permitted by
law and subject to the terms of 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 contained in Exhibit A hereto, specifically
describing such new Deposited Securities and/or corporate change. The Company
agrees to, jointly with the Depositary, amend the Registration Statement on Form
F-6 as filed with the Commission to permit the issuance of such new form of
Receipts. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall, if the Company requests, to the
extent permitted by law and practicable, subject to the other provisions of this
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities 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.
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18. LIABILITY OF THE COMPANY AND
DEPOSITARY. Neither the Depositary, the Custodian or the
Company shall be obligated to do or perform any act which is inconsistent with
the provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and any Receipt,
by reason of any provision of any present or future law or regulation of the
United States or any state thereof, the Kingdom of Sweden or any other country,
or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Company’s
Articles of Incorporation or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company’s Articles of Incorporation or provisions of or governing
Deposited Securities, (iii) for any action or inaction of the Depositary, the
Custodian or the Company or their respective controlling persons or agents in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, any holder of an interest in
American Depositary Shares or Receipts 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 holder of an
interest in American Depositary Shares or Receipts to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any special, consequential, indirect or punitive damages for any breach of the
terms of the Deposit Agreement or otherwise. In no event shall the Depositary,
the Company or any of their respective directors, officers, employees, agents
(including, without limitation, the Agents of the Depositary) and/or Affiliates,
or any of them, be liable for any indirect, special, punitive or consequential
damages to each other, Holders, Beneficial Owners or any other
person. The Depositary, its controlling persons, its agents, the
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request, opinion or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or any Receipts to any Holder(s) or holder(s) of an interest
in American Depositary Shares or Receipts or other persons (except for the
Company’s and the Depositary’s obligations specifically set forth in Section 5.8
of the Deposit Agreement), provided, that the Company and the Depositary and
their respective agents agree to perform their respective obligations
specifically set forth in the Deposit Agreement or the applicable Receipts
without gross negligence or willful misconduct. Without limitation of
the foregoing, neither the Depositary, nor the Company, nor any of their
respective controlling persons, or agents, shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expenses (including fees and disbursements of counsel) and
liabilities be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary). The Depositary
and its agents shall not be liable for any failure to carry out any instructions
to vote any of the Deposited Securities, or for the manner in which any vote is
cast (provided that any such action or omission is in good faith) or the effects
of any vote. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of American
Depositary Shares, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company, or
for any action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares for
deposit, any Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its
agents shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without gross negligence or willful misconduct while it acted as
Depositary. The Company agrees to indemnify the Depositary and each
Custodian under certain circumstances enumerated in the Deposit
Agreement. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
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19. RESIGNATION AND REMOVAL OF
THE DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do
delivered to the Company, such resignation to take effect 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, effective
upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. Whenever the Depositary
in its reasonable discretion determines that it is in the best interest of the
Holders of Receipts to do so, it may appoint a substitute or additional
custodian or custodians after consultation with the Company.
20. AMENDMENT. The
form of the Receipts and any provisions of the Deposit Agreement may at any time
and from time to time be amended by agreement between the Company and the
Depositary (without the consent of Holders) in any respect which they may deem
necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges), or which
shall otherwise prejudice any substantial existing right of Holders of
Receipts, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of amendment to the Deposit
Agreement shall have been given to the Holders of outstanding Receipts.
Every Holder of a Receipt at the time any amendment to the Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. Notice of any amendment to the Deposit Agreement or
form of Receipts shall not need to describe in detail the specific amendments
effectuated thereby, and failure to describe the specific amendments in any such
notice shall not render such notice invalid, provided, however, that, in each
such case, the notice given to the Holders identifies a means for Holders to
retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission's, the Depositary's or the Company's website or upon request from the
Depositary). 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 of 1933 or (b) the American Depositary Shares
or the Shares to be traded solely in electronic book-entry form and (ii) do not
in either such case impose or increase any fees or charges to be borne by
Holders, shall be deemed not to materially prejudice any substantial rights of
Holders. Every Holder 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.
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21. TERMINATION OF DEPOSIT
AGREEMENT. The Depositary shall at any time at the 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. The
Depositary may likewise terminate the Deposit Agreement if at any time 90 days
shall have expired after the Depositary shall have delivered to the Company
and the Holders a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment
as provided in Section 5.4. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, 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, 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, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges). At any time after the expiration of six
months from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Holders
of Receipts which have not theretofore surrendered their Receipts, such Holders
thereupon becoming general creditors of the Depositary with respect to such
net proceeds. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash (after deducting, in each case, the fee of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Owner of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations to the Company under Section 5.8 of the Deposit
Agreement. 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 and
5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S.
SECURITIES LAWS. Notwithstanding any provision of the Deposit
Agreement or this Receipt to the contrary, the Holders shall be entitled to
withdraw Deposited Securities subject only to the conditions set forth in
paragraph I.A.(1) of the General Instructions (or any successor provisions
thereto), as in effect from time to time, to Form F-6 as prescribed by the
Commission under the Securities Act of 1933.
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