AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of May , 2007 (the "Amendment") to the Deposit Agreement dated as of November
30, 2000 (the "Deposit Agreement"), among Telenor ASA (the "Company"),
incorporated under the laws of the Kingdom of Norway, JPMorgan Chase Bank,
N.A.,
as depositary (the "Depositary"), and all Holders and beneficial owners from
time to time of American Depositary Receipts ("ADRs") issued
thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the Form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms
of
the Deposit Agreement and Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
2
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. The
addresses of the Depositary and the Company set forth in Section 13
of the
Deposit
Agreement are amended to read as follows:
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For
the Depositary:
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JPMorgan
Chase Bank, N.A.
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Four
Xxx Xxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
ADR Administration
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Fax:
(000) 000-0000
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For
the Company:
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Xxxxxxxxxxx
00
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0000
Xxxxxxx
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Xxxxxx
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Attention:
Investor Relations
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Fax:
+ 00 0000 0000
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SECTION
2.04. References
in the Form of ADR to "Xxxxxx Guaranty Trust Company of New York, a New York
Corporation" are replaced with "JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States of
America".
3
SECTION
2.05. The
final
two sentences of paragraph (10) of the Form of ADR
are
amended to read as follows:
The
Company publishes on its web site on an ongoing basis, or otherwise furnishes
the United States Securities and Exchange Commission (the "Commission") with,
certain public reports and documents required by foreign law or otherwise under
Rule 12g3-2(b) under the Securities Exchange Act of 1934, as amended. To the
extent furnished to the Commission, such reports and documents may be inspected
and copied at the public reference facilities maintained by the Commission
located at the date of the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx,
XX
00000.
SECTION
2.06. The
Form
of ADR, as amended hereby, and revised to include any further
changes necessitated by the above amendments, shall be in the form set
forth
as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Kingdom of Norway,
neither of such agreements need to be filed or recorded with any court or other
authority in the Kingdom of Norway, nor does any stamp or similar tax need
to be
paid in the Kingdom of Norway on or in respect of such agreements;
and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
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ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the earlier of thirty days from the date notice hereof is first provided to
Holders or the date on which the Company files the Form 15F with the Commission
to become exempt from the continued reporting obligations under the Securities
Exchange Act of 1934, as amended in accordance with Rule 12g3-2(b) promulgated
thereunder (such latter date being the "Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 12 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
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IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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Name: |
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Title:
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Name: |
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Title:
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JPMORGAN
CHASE BANK, N.A.
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Name: |
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Title:
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
THE
AMENDMENT TO DEPOSIT AGREEMENT
[FORM
OF
FACE ADR]
CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
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No.
of ADSs:
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Number
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___________________
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Each
ADS represents
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Three
Shares
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the
laws
of
the Kingdom of Norway)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"),
hereby certifies that ____________ is the registered owner (a "Holder")
of
_____ American Depositary Shares ("ADSs"),
each
(subject to Paragraphs (11) and (14)) representing three Ordinary Shares
including, subject to Paragraph (5) below, rights to receive Shares (together
"Shares"
and,
together with any additional securities or cash from time to time held by the
Depositary or the Custodian referred to below in respect or in lieu thereof,
the
"Deposited
Securities"),
of
TELENOR ASA, a corporation incorporated under the laws of the Kingdom of Norway
(the "Company"),
deposited with a custodian appointed in accordance with the Deposit Agreement
(hereinafter defined) (subject to Section 7 of the Agreement referred to
below, the "Custodian").
This
ADR is issued pursuant to the Deposit Agreement dated as of November 30, 2000
(as amended from time to time, the "Deposit
Agreement")
among
the Company, the Depositary and all Holders and Beneficial Owners from time
to
time of American Depositary Receipts issued thereunder ("ADRs"),
each
of whom by accepting an ADR agrees to become a party thereto and to be bound
by
all of the terms and conditions thereof and hereof. Copies of the Deposit
Agreement are on file at the Depositary's Office referred to below and at the
office of the Custodian. This ADR (which includes the provisions set forth
on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York. The terms and conditions of the Deposit Agreement
are hereby incorporated by reference.
1
(1) Withdrawal
of Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), upon surrender at the Depositary’s Office
referred to below of (i) a certificated ADR in form satisfactory to the
Depositary or (ii) proper instructions and documentation in the case of a Direct
Registration , in either case accompanied by such instruments of transfer as
the
Depositary may require, the Holder hereof is entitled to delivery, as promptly
as practicable, (i) to an account designated by such Holder with VPS or an
institution that maintains accounts with the VPS, of the Shares and the other
Deposited Securities that are eligible for deposit with VPS and (ii) at the
office of the Custodian, of any Deposited Securities that are not eligible
for
deposit with VPS, in each case at the time underlying this ADR. At the request,
risk and expense of the Holder hereof, the Depositary may deliver Deposited
Securities (other than Shares) at the Depositary's Office referred to
below.
(2) Register.
The
Depositary shall keep, at the office of the Depositary in The City of New York
at which at any particular time its depositary receipt business is administered,
which at the date of the Deposit Agreement (as most recently amended) is 0
Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Depositary's
Office"),
(a) a
register (the "Register") for the registration, registration of transfer,
combination and split-up of ADRs and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term Register includes the Direct Registration System.
The
Depositary may close the Register at any time or from time to time when
reasonably deemed expedient by it after consultation with the Company if
practicable in the case of a closure outside of the ordinary course of business,
or when reasonably requested by the Company.
(3) Title
to ADRs; Validity.
Title
to this ADR, when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of
a
negotiable instrument under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless executed
by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary; provided, however, that, if a co-registrar for
ADRs
has been appointed, such signature may be facsimile if such ADR is countersigned
by the manual or facsimile signature of a duly authorized signatory of such
co-registrar and dated by such signatory.
2
(4) Certain
Limitations.
As a
condition precedent to the issue or registration of any ADR (including upon
a
transfer, split-up or combination), any distribution in respect thereof or
the
withdrawal of any Deposited Securities, the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge and (ii) any transfer or
registration fees charged by third parties for the transfer of any Deposited
Securities, (b) the production of (i) proof satisfactory to it of the identity
and genuineness of any signature and (ii) such other information as it may
deem
necessary or proper consistent with the Deposit Agreement; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. From time to time, the Company, the Depositary or the
Custodian may also require such information as it may deem necessary or proper
consistent with the Deposit Agreement. The Depositary shall notify the Company
of any procedures established pursuant to clauses (b) or (c) above. The issuance
of ADRs, the acceptance of deposits of Shares, the registration of transfers
of
ADRs or the withdrawal of Deposited Securities may be suspended, generally
or in
particular instances, when the Register or VPS is closed or when any such action
is reasonably deemed expedient by the Depositary or the Company. Registrations
of transfers of ADRs and withdrawals of Deposited Securities shall also be
suspended when requested by the Company, including for the purpose of
facilitating orderly voting of the Deposited Securities. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the U.S. Securities Act of 1933, as amended (the "Securities
Act")
and no
amendment shall impair such requirements.
(5) Pre-release.
Unless
requested in writing by the Company to cease doing so at least two business
days
in advance of the proposed deposit, the Depositary may issue ADRs pursuant
to
Pre-release transactions only if (i) such Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of the Holders (not including any
earnings thereon) until such Shares are deposited (but such collateral shall
not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or
its
customer (a) beneficially owns such Shares, (b) transfers all beneficial right,
title and interest therein to the Depositary for the benefit of the Holders,
(c)
will hold such Shares in trust for the account of the Depositary, (d) will
deliver such Shares to the Custodian as soon as practicable and promptly but
in
no event more than five business days after demand therefor, and (e) will not
take any action with respect to such Shares that is inconsistent with the
Depositary’s transfer of the beneficial ownership thereof and (iii) all
Pre-released ADRs evidence not more than 20% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
compensation for the issuance of ADRs in Pre-release transactions, including,
without limitation earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. The Depositary may also set dollar limits with respect
to
Pre-releases to be entered into with any particular person to whom a Pre-release
was made on a case by case basis as it deems appropriate.
3
(6) Representations
and Warranties.
Every
person depositing Shares under the Deposit Agreement is deemed to represent
and
warrant that such Shares are validly issued and outstanding, fully paid,
nonassessable and were not acquired in violation of any pre-emptive rights,
that
the person making such deposit is duly authorized to do so and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act and may be offered or sold in the United States in
transactions that are exempt from registration under the Securities Act or
(B)
have been registered under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and the issuance and cancellation
of this ADR.
(7) Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any ADSs evidenced by
this
ADR, any Deposited Securities underlying this ADR or any distribution on any
of
the foregoing, such tax or other governmental charge shall be paid by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of this ADR or any withdrawal of the underlying Deposited Securities until
such
payment is made. The Depositary may also deduct from any distributions on or
in
respect of Deposited Securities, or may sell by public or private sale for
the
account of the Holder hereof all or any part of such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply such deduction or the proceeds of any such sale in payment of
such
tax or other governmental charge. The Holder hereof shall remain liable for
any
deficiency. Upon any such sale, the Depositary shall, if appropriate, reduce
the
number of ADSs evidenced hereby to reflect any such sale and shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such tax or other governmental charge to the Holder
hereof.
(8) Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary
in
the Depositary's compliance with any Company instructions in respect thereof,
and the Depositary will use reasonable efforts to comply with such Company
instructions.
4
Without
limitation of the foregoing, any person, entity or group acting in concert
who
is a Holder, who is entitled upon surrender of the ADRs to acquire directly
or
indirectly the beneficial ownership of such number of Shares as shall exceed
(together with any Share or additional ADRs held by such person, entity or
group) 10%, or such lesser percentage as may be required to be disclosed from
time to time under any law, regulation or practice of Norway, of the share
capital or voting rights of the Company shall, promptly send to the Company
and
to the Oslo Stock Exchange, via facsimile or by any other reasonable means
so
that the Company and the Oslo Stock Exchange shall receive such information
promptly after such person, entity or group becomes so entitled, the following
information:
| (a) |
the
background, and identity, residence, and citizenship of, and the
nature of
such rights held by, such person, entity or group and all other persons
by
whom or on whose behalf purchases have been or are to be
effected;
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| (b) |
the
number of Shares and ADRs which are beneficially owned, directly
or
indirectly, by (A) such person, entity or group and (B) each associate
of
such person, entity or group, giving the background, identity, residence,
and citizenship of each such associate;
and
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if
any material change occurs in the facts set forth in the statements
to the
Company, an amendment shall be transmitted, within ten days after
any such
change occurs, to the Company setting forth such
changes.
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Any
person, entity or group acting in concert who is a Holder and who acquires
or
disposes of Shares, options for Shares or other rights to Shares resulting
in
its beneficial ownership, directly or indirectly, in the aggregate, exceeding
or
falling below the respective thresholds of 1/10, 1/5, 1/3, ½, 2/3 or 9/10 of the
share capital or voting rights of the Company or such lesser or other percentage
as may be required to be disclosed from time to time under any law, regulation
or practice of Norway, of the share capital or voting rights of the Company,
shall send to the Company and to the Oslo Stock Exchange the information
required in the preceding paragraph via facsimile or by any other reasonable
means so that the Company and the Oslo Stock Exchange shall receive such
information promptly after any such change in the shares of capital stock
beneficially owned by such Holder.
(9) Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and other
Distributions (as such terms are defined in Paragraph (11)), and each
person surrendering ADRs for withdrawal of Deposited Securities, up to U.S.
$5.00 for each 100 ADSs (or portion thereof) evidenced by the ADRs delivered
or
surrendered. The Company will pay other charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) pursuant to agreements
from time to time between the Company and the Depositary, except (i) stock
transfer or other taxes and other governmental charges (which are payable by
Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable
by
such persons or Holders), (iii) any transfer or registration fees charged by
third parties for transfer of any Deposited Securities in connection with the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares or Holders withdrawing Deposited Securities) and (iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which are paid out of such foreign currency). These charges may
be
changed in the manner indicated in Paragraph (16).
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(10) Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the Depositary’s Office and the office of the Custodian. The
Depositary will mail copies of such communications (or English translations
or
summaries thereof) to Holders when furnished by the Company. The Company
publishes on its web site on an ongoing basis, or otherwise furnishes the United
States Securities and Exchange Commission (the "Commission") with, certain
public reports and documents required by foreign law or otherwise under Rule
12g3-2(b) under the Securities Exchange Act of 1934. To the extent furnished
to
the Commission, such reports and documents may be inspected and copied at the
public reference facilities maintained by the Commission located at the date
of
the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
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Dated:
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JPMORGAN CHASE BANK, N.A., as Depositary | |
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| By | ||
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Authorized
Officer
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The
Depositary's Office is currently located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx
00000.
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[FORM
OF
REVERSE OF RECEIPT]
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Deposit Agreement and to the
Paragraphs (4), (7) and (9) hereof, the Depositary shall as promptly as
practicable distribute by mail to each Holder entitled thereto on the record
date set by the Depositary therefor, in proportion to the number of Deposited
Securities (on which the following distributions are received by the Custodian)
underlying such Holder's ADRs:
(a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this Paragraph (11) ("Cash"),
on an
averaged or other practicable basis, subject to appropriate adjustments for
(i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's expenses in (1) converting any foreign currency into U.S.
dollars, (2) making any sale by public or private means in any commercially
reasonable manner, (3) transferring foreign currency or U.S. dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that such transfer may be made on a reasonable basis, and (4)
obtaining any approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a reasonable cost and within
a reasonable time. Only whole U.S. dollars and cents will be distributed (any
fractional cents being withheld without liability for interest and added to
future Cash distributions).
(b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share
Distribution")
and
(ii) U.S. dollars available to it resulting from the net proceeds of sales
of
Shares received in a Share Distribution, which Shares would give rise to
fractional ADSs if additional ADRs were issued therefor, as in the case of
Cash.
(c) Rights.
(i) To
the extent the Company so instructs and timely furnishes to the Depositary
evidence (the Company having no obligation to so furnish such evidence)
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same, warrants or other instruments representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
or
(ii) to the extent the Company does not furnish such evidence and/or so
instructs the Depositary and sales of Rights are practicable as determined
by
the Depositary after consultation with the Company (which sales shall be
effected as promptly as practicable and, to the extent practicable, on the
principal Norwegian stock exchange on which the Rights are traded), any U.S.
dollars available to the Depositary constituting the net proceeds of sales
of
Rights, as in the case of Cash, or (iii) failing either (i) or (ii), nothing
(and any Rights may lapse).
7
(d) Other
Distributions.
(i)
Securities available to the Depositary resulting from any distribution on
Deposited Securities other than Cash, Share Distributions and Rights
("Other
Distributions"),
by
any means that the Depositary may deem, after consultation with the Company,
lawful, equitable and practicable, or (ii) to the extent the Depositary deems,
after consultation with the Company, a distribution of such securities not
to be
lawful, equitable or practicable, any U.S. dollars available to the Depositary
constituting the net proceeds of the sale of Other Distributions, as in the
case
of Cash.
To
the
extent that the Depositary determines, after consultation with the Company,
that
any distribution is not lawful or practicable with respect to any Holder, the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities),
or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment thereof).
Notwithstanding
anything herein to the contrary, the Company shall have no obligation to either
(i) register any ADSs, Shares, Rights or other securities described in this
Paragraph (11) under the Securities Act or (ii) take other actions to permit
the
distribution of such ADSs, Shares, Rights or other securities in accordance
with
applicable U.S. securities laws.
(12) Record
Dates.
The
Depositary shall, after consultation with the Company to the extent practicable,
fix a record date (which shall be as near as practicable to any corresponding
record date set by the Company with respect to the Shares) for the determination
of the Holders who shall be responsible for the fee assessed by the Depositary
for administration of the ADR program and for any expenses provided for in
paragraph (7) hereof as well as for the determination of the Holders who shall
be entitled to receive any distribution on or in respect of Deposited Securities
as well as for the determination of the Holders who shall be entitled to receive
any distribution on or in respect of Deposited Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters, and only Holders of record on the close of business
on
such date shall be so entitled.
(13) Voting
of Deposited Securities.
As
soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice from the Company and any solicitation
materials (or a summary thereof), (b) that each Holder on the record date set
by
the Depositary therefor will be entitled, subject to any applicable provisions
of Norwegian law, the Articles of Association of the Company and any agreement
which might be reached with, and according to the rules of VPS, to instruct
the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by the ADSs evidenced by such Holders' ADRs
if
such Holder is a registered shareholder of the Company on the VPS prior to
such
meeting, (c) a statement as to the Shares and other Deposited Securities
represented by the ADSs evidenced by such Holders' ADRs and (d) the manner
in
which such instructions may be given. Under Norwegian law, the Depositary may
not exercise the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs except as proxy pursuant to voting instructions from
the
Holders of the ADSs representing such Deposited Securities. Upon the written
request of a Holder on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary will endeavor
insofar as practicable and permitted under Norwegian law, the Deposit Agreement,
the provisions of the Articles of Association of the Company, any agreement
which may be reached with the VPS and the rules of the VPS to cause the
corresponding Deposited Securities to be temporarily transferred in the VPS
to
the account of such Holder, to cause notice to be given to the Company and,
as
proxy, to vote or cause to be voted (or grant a discretionary proxy to a person
designated by the Company to vote), or otherwise to give effect to the written
request of such Holder by voting or causing to be voted, the amount of Shares
represented by the ADSs evidenced by such Holder's ADRs in accordance with
any
instructions set forth in such request.
8
(14) Changes
Affecting Deposited Securities.
Subject
to Paragraphs (4), (7) and (9) hereof, upon any change in nominal or par value,
split-up or consolidation or other reclassification of Deposited Securities,
any
Share Distribution or Other Distribution not distributed to Holders in
accordance with Paragraph (11), or any recapitalization, reorganization, merger,
liquidation or similar corporate event or sale of all or substantially all
the
assets of the Company, any cash or securities received by the Depositary in
respect of any Deposited Securities shall constitute Deposited Securities
hereunder, and each ADS evidenced by this ADR shall automatically represent
its
pro rata
interest
in the Deposited Securities as then constituted. In any such case, the
Depositary may, and shall if the Company so requests, distribute any part of
the
cash or securities so received or execute and deliver additional ADRs or call
for the surrender of outstanding ADRs to be exchanged for new ADRs describing
the new Deposited Securities.
(15) Exoneration.
The
Depositary, the Company, their respective officers, directors, affiliates and
agents and each of them shall: (a) incur no liability to any Holder or
Beneficial Owner (i) if law, regulation, the provisions of or governing any
Deposited Security, act of God, war or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act that
the Deposit Agreement or this ADR provides shall be done or performed by it,
or
(ii) by reason of any exercise or failure to exercise any discretion given
it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform
its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) be under no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this ADR; or (d) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person in each case believed by it in good
faith to be competent to give such advice or information. The Depositary, the
Company and their respective agents may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
in good faith to be genuine and to have been signed or presented by the proper
party or parties. The Depositary and its agents shall not be responsible for
any
failure to carry out any instructions to vote any of the Deposited Securities,
for the manner in which any such vote is cast or for the effect of any such
vote. The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in ADRs. In the Deposit Agreement, the
Company has agreed to indemnify the Depositary under certain circumstances
and
the Depositary has agreed to indemnify the Company under certain circumstances.
No disclaimer of liability under the Securities Act is intended by any provision
hereof or of the Deposit Agreement.
9
(16) Amendment.
Subject
to the last sentence of Paragraph (4), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary without consent of the Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than those listed
in clauses (i) through (iv) of Paragraph (9)), or that shall otherwise prejudice
any substantial existing right of Holders, shall become effective 30 days after
notice of such amendment shall have been given to the Holders. Every Holder,
at
the time any amendment so becomes effective, shall be deemed, by continuing
to
hold an ADR, to consent and agree to such amendment and to be bound by the
ADRs
and the Deposit Agreement as amended thereby. By holding an ADR, ADS or an
interest therein, each Holder and Beneficial Owner hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act of 1933 or (b) the ADSs or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not
to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR
to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination.
The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Deposit Agreement, after giving notice to the
Holders as set forth in the preceding sentence of this Paragraph (17) at any
time 45 days or more after the Depositary shall have delivered to the Company
its written resignation, provided that no successor depositary shall have been
appointed and accepted its appointment as provided in Section 10 of the Deposit
Agreement before the end of such 45 days. After the date so fixed for
termination, the Depositary and its agents shall perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn together with any such distributions on Deposited Securities. As
soon
as practicable after the expiration of one year from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold the
net
proceeds of such sales, together with any other cash then held by it under
the
Deposit Agreement, without liability for interest, for the pro
rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and its indemnification obligations to the Company. After the date so fixed
for
termination, the Company shall be discharged from all obligations under the
Deposit Agreement except for its
indemnification and payment obligations to the Depositary.
10
