EXHIBIT 2.1
DRAFT OF 08/14/01
VAN DER MOOLEN HOLDING N.V.
and
THE BANK OF NEW YORK
As Depositary
and
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of __________, 2001
TABLE OF CONTENTS
Page
----
PARTIES .................................................................................................1
RECITALS ................................................................................................1
ARTICLE 1. DEFINITIONS...................................................................................1
SECTION 1.01 American Depositary Shares..........................................................1
SECTION 1.02 Beneficial Owner....................................................................2
SECTION 1.03 Commission..........................................................................2
SECTION 1.04 Company.............................................................................2
SECTION 1.05 Custodian...........................................................................2
SECTION 1.06 Deliver; Surrender..................................................................2
SECTION 1.07 Deposit Agreement...................................................................2
SECTION 1.08 Depositary; Corporate Trust Office..................................................3
SECTION 1.09 Deposited Securities................................................................3
SECTION 1.10 Dollars.............................................................................3
SECTION 1.11 Foreign Registrar...................................................................3
SECTION 1.12 Owner...............................................................................3
SECTION 1.13 Receipts............................................................................3
SECTION 1.14 Registrar...........................................................................3
SECTION 1.15 Restricted Securities...............................................................4
SECTION 1.16 Securities Act of 1933..............................................................4
SECTION 1.17 Shares..............................................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS .............................................4
SECTION 2.01 Form and Transferability of Receipts................................................4
SECTION 2.02 Deposit of Shares...................................................................5
SECTION 2.03 Execution and Delivery of Receipts..................................................6
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts..........................7
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares......................................7
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender of Receipts...........8
SECTION 2.07 Lost Receipts, etc..................................................................9
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts...............................10
SECTION 2.09 Pre-Release of Receipts............................................................10
SECTION 2.10 Maintenance of Records.............................................................11
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND
BENEFICIAL OWNERS OF RECEIPTS................................................................11
SECTION 3.01 Filing Proofs, Certificates and Other Information..................................11
- i -
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes...................................11
SECTION 3.03 Warranties on Deposit of Shares....................................................12
SECTION 3.04 Disclosure of Interests............................................................12
ARTICLE 4. THE DEPOSITED SECURITIES.....................................................................12
SECTION 4.01 Cash Distributions.................................................................12
SECTION 4.02 Distributions Other Than Cash, Shares or Rights....................................13
SECTION 4.03 Distributions in Shares............................................................13
SECTION 4.04 Rights.............................................................................14
SECTION 4.05 Conversion of Foreign Currency.....................................................16
SECTION 4.06 Fixing of Record Date..............................................................16
SECTION 4.07 Voting of Deposited Securities.....................................................17
SECTION 4.08 Changes Affecting Deposited Securities.............................................18
SECTION 4.09 Reports............................................................................18
SECTION 4.10 Lists of Owners....................................................................19
SECTION 4.11 Withholding........................................................................19
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY...............................................19
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.........................19
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the Company................20
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.......................20
SECTION 5.04 Resignation and Removal of the Depositary..........................................21
SECTION 5.05 The Custodians.....................................................................22
SECTION 5.06 Notices and Reports................................................................23
SECTION 5.07 Distribution of Additional Shares, Rights, etc.....................................23
SECTION 5.08 Indemnification....................................................................24
SECTION 5.09 Charges of Depositary..............................................................25
SECTION 5.10 Retention of Depositary Documents..................................................26
SECTION 5.11 Exclusivity........................................................................26
SECTION 5.12 List of Restricted Securities Owners...............................................26
ARTICLE 6. AMENDMENT AND TERMINATION....................................................................27
SECTION 6.01 Amendment..........................................................................27
SECTION 6.02 Termination........................................................................27
ARTICLE 7. MISCELLANEOUS................................................................................28
SECTION 7.01 Counterparts.......................................................................28
SECTION 7.02 No Third Party Beneficiaries.......................................................28
SECTION 7.03 Severability.......................................................................28
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect............................29
SECTION 7.05 Notices............................................................................29
- ii -
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of Process............29
SECTION 7.07 Governing Law......................................................................30
EXHIBIT A Form of Receipt
- iii -
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _____________, 2001 among VAN DER MOOLEN
HOLDING N.V., incorporated under the laws of The Netherlands (herein called the
Company), THE BANK OF NEW YORK, a New York banking corporation (herein called
the Depositary), and all Owners and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) 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 evidencing the American Depositary Shares; and
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 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent one
Share, until there shall occur a distribution upon Deposited Securities covered
by Section 4.03 or a change in Deposited Securities covered by Section 4.08 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 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United States.
SECTION 1.04 Company.
The term "Company" shall mean Van der Moolen Holding N.V., incorporated
under the laws of The Netherlands, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the principal Amsterdam office of ABN
AMRO Holding N.V., as 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 pursuant to the terms of Section 5.05, as substitute or
additional custodian or custodians hereunder, as the context shall require and
shall also mean all of them collectively.
SECTION 1.06 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with
respect to Shares shall mean (i) one or more book-entry transfers to an account
or accounts maintained with a depository institution authorized under applicable
law to effect book-entry transfers of such securities or (ii) the physical
transfer of certificates representing Shares.
(b) The term "deliver", or its noun form, when used with
respect to Receipts, shall mean (i) one or more book-entry transfers of American
Depositary Shares to an account or accounts at The Depository Trust Company
("DTC") designated by the person entitled to such delivery or (ii) if requested
by the person entitled to such delivery, to delivery at the Corporate Trust
Office of the Depositary of one or more Receipts.
(c) The term "surrender", when used with Receipts, shall
mean (i) one or more book-entry transfers of American Depositary Shares to the
DTC account of the Depositary or (ii) surrender to the Depositary at its
Corporate Trust Office of one or more Receipts.
SECTION 1.07 Deposit Agreement.
The term "Deposit Agreement" shall mean this Deposit Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
- 2 -
SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder pursuant to
Section 5.04. The term "Corporate Trust Office", when used with respect to the
Depositary, shall mean the office of the Depositary which at the date of this
Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited, including as contemplated by
Section 2.09, 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
4.05.
SECTION 1.10 Dollars.
The term "Dollars" shall mean United States dollars. The term "Euro"
shall mean the official currency of the member states of the European Monetary
Union.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.14 Registrar.
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.
- 3 -
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company, or any affiliate (as defined in Rule 144 to the Securities Act of 1933)
of the Company, in a transaction or chain of transactions not involving any
public offering, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Company, or which would
require registration under the Securities Act of 1933 in connection with the
public 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 The
Netherlands, or under a shareholder agreement or the Articles of Association of
the Company.
SECTION 1.16 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.17 Shares.
The term "Shares" shall mean common shares in bearer form of the
Company, par value Euro .08 each, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares; provided, however,
that, if there shall occur any change in nominal value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.08, an exchange or conversion in respect of the Shares of
the Company, the term "Shares" shall thereafter also mean the successor
securities resulting from such change in nominal value, split-up or
consolidation or such other reclassification or such exchange or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
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. No 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 and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual signature of a duly authorized officer of the
- 4 -
Registrar. The Depositary shall maintain books on which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Receipts 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.
The Receipts may be endorsed with the consent of the Company (which
consent shall not be unreasonably withheld) with or have incorporated in the
text thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement, the Company's Articles of Association and
Dutch law as may be reasonably required by the Depositary or required by the
Depositary 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.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by 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 New York; provided, however, that
the Company and the Depositary, notwithstanding any notice to the contrary, may
treat the Owner 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.
SECTION 2.02 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 delivery thereof to
any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, 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,
if the Depositary requires, 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 Foreign Registrar, if applicable, 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
- 5 -
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 person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
The Depositary shall not accept Shares for deposit under this Deposit
Agreement to extent that, after giving effect to that deposit, the number of
Shares deposited or deemed deposited under this Deposit Agreement would exceed
the Facility Ceiling. "Facility Ceiling" means the total number of Shares
outstanding multiplied by the maximum percentage of the Company's share capital
specified in an effective certificate of no objection issued by the Dutch
Securities Board. The Company shall notify the Depositary of the amount of the
Company's outstanding share capital as of the date of this Deposit Agreement and
thereafter shall notify the Depositary as promptly as practicable whenever the
amount of the Company's outstanding share capital changes. The Depositary is
entitled to rely, and will be protected in relying, upon the information in the
most recent notice it received from the Company under this paragraph.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such 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 evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
- 6 -
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
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 as
provided in Section 5.09, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities. The Depositary shall not deliver Receipts except in accordance with
this Section 2.03 or Section 2.09, 4.03, 4.04 or 4.08.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of
Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a 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.
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, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint, upon at least 20 days' written notice to
the Company, one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary.
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and
- 7 -
withdrawal of the Deposited Securities, and subject to the terms and conditions
of this Deposit Agreement, the Owner of such Receipt shall be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities at the
time represented by the American Depositary Shares evidenced by such Receipt.
Delivery of such Deposited Securities may be made by the delivery of (a) Shares
or evidence of title thereto registered in the name of such Owner or as ordered
by him or Shares or evidence of title thereto properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner 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 if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 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 the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced 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.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall, if feasible,
direct the Custodian to forward any cash or other property (other than rights)
comprising, and forward a certificate or certificates and other proper documents
of title for, the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt to the Depositary for delivery at the Corporate
Trust Office of the Depositary. Such direction shall be given by letter or, at
the request, risk and expense of such Owner, by cable, telex or facsimile
transmission. Neither the Depositary nor the Custodian shall deliver Shares, by
physical delivery, book-entry or otherwise (other than to the Company or its
agent as contemplated by Section 4.08), or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the surrender of
Receipts.
SECTION 2.06 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
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
- 8 -
Securities, the Company, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees 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 any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.06.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the 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
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, 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 which would be 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 comply
with the reasonable written instructions of the Company that the Depositary
shall not 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.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor 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 execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner 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)
- 9 -
a sufficient indemnity bond and (b) satisfied any other reasonable requirements
imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be canceled by the
Depositary. The Depositary is authorized to destroy Receipts so canceled.
SECTION 2.09 Pre-Release of Receipts.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, 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 and
agreement from the person to whom Receipts are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial right,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for the benefit of the Owners, and (iii)
will not take any action with respect to such Shares or Receipts, as the case
may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be, other than in satisfaction of such Pre-Release),
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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 reasonably deems
appropriate. The number of Shares not deposited but represented by American
Depositary Shares 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 disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners
under this Deposit Agreement, the collateral referred to in clause (b) above
shall be held by the Depositary, in its capacity as such and for the benefit of
Owners, as security for the performance of the Pre-Releasee's obligations to the
Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to
- 10 -
deliver Shares or Receipts upon termination of a Pre-Release transaction (and
shall not, for the avoidance of doubt, constitute Deposited Securities
hereunder).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain or cause its agents to maintain
records of all Receipts surrendered and Deposited Securities withdrawn under
Section 2.05, substitute Receipts delivered under Section 2.07, and of cancelled
or destroyed Receipts under Section 2.08, in keeping with procedures ordinarily
followed by stock transfer agents located in The City of New York or as required
by the laws or regulations governing the Depositary.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner 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 Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary. The Depositary may 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. The
Depositary shall provide copies thereof to the Company as promptly as
practicable at the request of the Company, unless such disclosure is prohibited
by law.
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the
- 11 -
Owner or Beneficial Owner thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares are not, and American Depositary Shares
representing such Shares would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and delivery
of Receipts.
SECTION 3.04 Disclosure of Interests.
The Company and the Depositary may from time to time request current or
former Owners or Beneficial Owners to provide information as to the capacity in
which such Owners or Beneficial Owners own or owned Receipts or own or owned
beneficial interests therein and regarding the identity of any other persons
then or previously interested in such Receipts and the nature of such interest
and such other matters as may be determined by the Company or the Depositary.
Each Owner or Beneficial Owner agrees to provide any such information requested
by the Company or the Depositary pursuant to this Section 3.04. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting that the Depositary forward any such requests to the
Owners and to forward to the Company any such responses to such requests
received by the Depositary.
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.05, as promptly as practicable, convert such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Section 5.09) to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or
- 12 -
such other cash distribution an amount on account of taxes, the amount
distributed to the Owner of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Company or its agent will remit to the appropriate
governmental agency in The Netherlands all amounts withheld and owing to such
agency. The Depositary will forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the Company or
its agent to file necessary reports with governmental agencies, and the
Depositary or the Company or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall, as promptly as practicable,
cause the securities or property received by it to be distributed to the Owners
entitled thereto, after deduction or upon payment of any fees and expenses of
the Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or Beneficial Owners) the Depositary deems such distribution not to be
feasible, the Depositary may, after consultation with the Company, if
practicable, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.09) shall be distributed by the Depositary
to the Owners entitled thereto, all in the manner and subject to the conditions
described in Section 4.01. The Depositary may withhold any such distribution of
securities if it has not received satisfactory assurances from the Company that
such distribution does not require registration under the Securities Act of
1933.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company so requests, distribute, as promptly as practicable, to the Owners
of outstanding Receipts entitled
- 13 -
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of the fees of the Depositary as provided in
Section 5.09. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.01. If
additional Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
SECTION 4.04 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, after consultation
with the Company to the extent practicable, shall have discretion as to the
procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may and at the request of the Company
shall distribute to any Owner to whom it determines the distribution to be
lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it
deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or
- 14 -
other instruments to the Depositary from such Owner to exercise such rights,
upon payment by such Owner to the Depositary for the account of such Owner of an
amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner; provided,
however, that in the case of a distribution pursuant to the second paragraph of
this Section, such deposit shall be made, and depositary shares shall be
delivered, under depositary arrangements which provide for issuance of
depositary receipts subject to the appropriate restrictions on sale, deposit,
cancellation and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.09 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Such proceeds
shall be distributed as promptly as practicable.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
- 15 -
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and 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, as promptly as
practicable, 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, as promptly as practicable, to the Owners 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 may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners 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 5.09.
If such conversion or distribution 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 or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government 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 discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners 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 Owners entitled thereto.
SECTION 4.06 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
- 16 -
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, the Depositary shall fix a record
date, which date shall, to the extent practicable, be either (x) the same date
as the record date fixed by the Company, or (y) if different from the record
date fixed by the Company, be fixed after consultation with the Company (a) for
the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting or (iii) who shall 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 will represent the changed number of Shares. Subject
to the provisions of Sections 4.01 through 4.05 and to the other terms and
conditions of this Deposit Agreement, the Owners on such record date shall be
entitled, as the case may be, 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 and to give voting instructions and
to act in respect of any other such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting or solicitation of proxies or
consents of holders of Shares or other Deposited Securities, the Depositary
shall, if requested in writing by the Company, as soon as practicable
thereafter, mail to the Owners a notice, the form of which notice shall be in
the sole discretion of the Depositary, which shall contain (a) such information
as is contained in such notice of meeting received by the Depositary from the
Company, (b) a statement that the Owners as of the close of business on a
specified record date will be entitled, subject to any applicable provision of
Dutch law and of the Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that if the
Depositary does not receive an instruction from an Owner it may deem that Owner
to have instructed it, in accordance with the last sentence of this paragraph,
to give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, in so far as practicable, to vote or cause to be voted the
amount of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to such Shares or other Deposited Securities
other than in accordance with such instructions or deemed instructions. If no
instructions are received by the Depositary from any Owner with respect to any
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts on or before the date established by the
Depositary for such purpose,
- 17 -
the Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided
that no such instruction shall be deemed given with respect to any matter as to
which the Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
the Company shall give the Depositary notice of any such meeting or solicitation
not less than 45 days prior to the meeting date or date for giving such proxies
or consents.
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, 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 the Owners copies of such reports when furnished
by the Company pursuant to Section 5.06. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission.
- 18 -
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company (unless otherwise agreed in writing by the Company and
the Depositary), 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.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale 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 or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the
Depositary.
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, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners 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 or at the request of the Company, provided that any such
closing of the transfer books shall be subject to the provisions of Section 2.06
which limit the suspension of withdrawal of Shares.
- 19 -
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Company shall have the right, upon reasonable request, to inspect
the transfer and registration records of the Depositary relating to the
Receipts, to take copies thereof and to require the Depositary and any
co-registrars to supply copies of such portions of such records as the Company
may request.
SECTION 5.02 Prevention or Delay in Performance by the Depositary
or the Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner if, by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Articles of Association of the Company, or
by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or other circumstances beyond its control, the Depositary or the Company
shall be prevented, delayed or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of this Deposit Agreement or Deposited Securities it is provided shall
be done or performed; nor shall the Depositary or the Company or any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or Beneficial Owner of any Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02, or 4.03, or an offering or
distribution pursuant to Section 4.04, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the
Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
- 20 -
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in or prosecute any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts on behalf of any Owner,
Beneficial Owner or other person, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action
or nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary 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 90 days'
prior written notice of such removal, to become effective upon the later of (i)
the 90th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
- 21 -
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; 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
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
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 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
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. If upon the effectiveness of
such resignation there would be no Custodian acting hereunder, the Depositary
shall, as promptly as practicable after receiving such notice, appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Owners to do so, it may appoint a substitute
or additional custodian or custodians, each of which shall thereafter be one of
the Custodians hereunder. Upon demand of the Depositary any Custodian shall
deliver such of the Deposited Securities held by it as are requested of it to
any other Custodian or such substitute or additional custodian or custodians.
Each such substitute or additional custodian shall deliver to the Depositary,
forthwith upon its appointment, an acceptance of such appointment satisfactory
in form and substance to the Depositary. If requested in writing by the Company,
the Depositary shall give notice to such change in writing to all Owners.
Upon the appointment of any successor depositary hereunder, each
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 each
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
- 22 -
to give to such Custodian full and complete power and authority as agent
hereunder of such successor depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in English but otherwise in the form given or to be
given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense (unless otherwise agreed in writing by the Company and the
Depositary), of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
The Company has delivered to the Depositary and the Custodian a copy
(in English or with an English translation) of all provisions of or governing
the Shares and any other Deposited Securities. Promptly upon any change in such
provisions, the Company shall deliver promptly to the Depositary and the
Custodian a copy (in English or with an English translation) of such provisions
as so changed. The Depositary and its agents may rely on the copy of such
provisions as so delivered for all purposes of this Deposit Agreement.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) securities convertible into, or exchangeable for,
Shares, or (3) rights to subscribe for any such securities (each a
"Distribution"), the Company will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Company, which counsel shall be reasonably
satisfactory to the Depositary, stating whether or not the Distribution requires
a Registration Statement under the Securities Act of 1933 to be in effect prior
to making such Distribution available to Owners entitled thereto. If in the
opinion of such counsel a Registration Statement is required, such counsel shall
furnish to the Depositary a written opinion as to whether or not there is a
Registration Statement in effect which will cover such Distribution.
- 23 -
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or the
Company furnishes to the Depositary a written opinion from U.S. counsel for the
Company, which counsel shall be reasonably satisfactory to the Depositary,
stating that upon such deposit, such Shares and the American Depositary Shares
to be issued in respect of such deposit may be publicly offered and sold by the
holder thereof in the United States without further registration of such Shares
under the Securities Act of 1933.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of (a) any registration with
the Commission of American Depositary Shares or Deposited Securities or the
offer or sale thereof in the United States or (b) acts performed or omitted,
pursuant to the provisions of this Deposit Agreement and of the Receipts, as the
same may be amended, modified or supplemented from time to time, (i) by either
the Depositary or a Custodian or their respective directors, employees, agents
and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
provided, however, that, for the avoidance of doubt, the indemnities provided in
the preceding paragraph shall apply to any such liability or expense (subject to
the limitations contained in this paragraph) (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission of a material fact in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of American Depositary Shares, except to the extent any such
liability or expense arose out of (1) information relating to the Depositary or
any Custodian, as applicable, furnished in writing to the Company by the
Depositary or any Custodian, as applicable, expressly for use in any of the
foregoing documents (and not materially changed or altered), or (2) if such
information is provided by the Depositary or any Custodian, the failure to state
a material fact necessary to make the information provided not misleading.
- 24 -
The Depositary agrees to indemnify the Company, its directors,
officers, employees, agents and affiliates and hold them harmless from any
liability or expense which may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, employees, agents and
affiliates 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 under this Section 5.08) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not unreasonably be withheld.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of the
Depositary or any Custodian.
SECTION 5.09 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 the 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 4.03), whichever applicable: (1) stock transfer and other taxes and
other governmental charges, (2) such transfer or 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 Foreign Registrar and 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 4.05, (5) a fee of
$5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution
- 25 -
made pursuant to the Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant
to Section 4.02, such fee being in an amount equal to the fee for the execution
and delivery of American Depositary Shares referred to above which would have
been charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners and (8) any other
charges payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 and shall be collected at the sole discretion of
the Depositary by billing such Owners for such charge or by deducing such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
reasonably requests that such papers be retained for a longer period.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
American depositary receipts so long as The Bank of New York is acting as
Depositary hereunder; provided, however, that the Company may appoint a
successor depositary pursuant to Section 5.04.
SECTION 5.12 List of Restricted Securities Owners.
The Company shall provide to the Depositary a list setting forth, to
the actual knowledge of the Company, those persons or entities who beneficially
own Restricted Securities as of the date hereof and the Company shall update
that list as promptly as practicable after the information changes. The Company
agrees to advise in writing each of the persons or entities so listed that such
Restricted Securities, so long as they remain such, are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon.
- 26 -
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 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 Owners or Beneficial Owners 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, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such Receipt or any interest
therein, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.02 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
Owners 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 by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding, if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company 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 5.04. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.05, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. 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 Owners 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 and other
property as provided in this Deposit Agreement, and shall continue to
- 27 -
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 one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners 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). 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
5.08 and 5.09.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 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 Custodians and shall be open to inspection
by any Owner or Beneficial Owner during business hours.
SECTION 7.02 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.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
- 28 -
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners 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 or any interest
therein.
SECTION 7.05 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 Xxxxxxxxxxxxx 000, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, Attention: , Facsimile: or
any other place to which the Company may have transferred its principal office
with notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, Facsimile: (000) 000-0000 or any
other place to which the Depositary may have transferred its Corporate Trust
Office with notice to the Company.
Any and all notices to be given to any Owner 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 Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for
Service of Process.
The Company hereby (i) irrevocably designates and appoints Van der
Moolen Specialists USA, LLC, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
in the State of New York, as the Company's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the Shares
or Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in
- 29 -
which any such suit or proceeding may be instituted, and (iii) agrees that
service of process upon said authorized agent shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company agrees to deliver, upon the execution and delivery of this Deposit
Agreement, a written acceptance by such agent of its appointment as such agent.
The Company further agrees to take any and all action, including the filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment in full force and effect for so long as any American
Depositary Shares or Receipts remain outstanding or this Agreement remains in
force. In the event the Company fails to continue such designation and
appointment in full force and effect, the Company hereby waives personal service
of process upon it and consents that any such service of process may be made by
certified or registered mail, return receipt requested, directed to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed ten (10) days after the same shall have been so mailed.
SECTION 7.07 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of The Netherlands.
- 30 -
IN WITNESS WHEREOF, VAN DER MOOLEN HOLDING N.V. and THE BANK OF NEW
YORK have duly executed this Deposit Agreement as of the day and year first set
forth above and all Owners and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof
or any interest therein.
VAN DER MOOLEN HOLDING N.V.
By:
Friedrich X.X. Xxxxxxxx
Chairman of the Management Board
By:
Xxxxx X. Xxxxxx
Chief Financial Officer
THE BANK OF NEW YORK,
as Depositary
By:
- 31 -
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES
PAR VALUE EURO .08 EACH OF
VAN DER MOOLEN HOLDING N.V.
(INCORPORATED UNDER THE LAWS OF THE NETHERLANDS)
The Bank of New York, as depositary (herein called the Depositary),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited common shares (herein called Shares) of Van der Moolen
Holding N.V., incorporated under the laws of The Netherlands (herein called the
Company). At the date hereof, each American Depositary Share represents one
Share deposited or subject to deposit under the Deposit Agreement (as such term
is hereinafter defined) at the principal Amsterdam office of ABN AMRO Holding
N.V. (herein called the Custodian). The Depositary's Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
A - 2
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 deposit agreement, dated as of , 2001, as the same may be
amended from time to time in accordance with its terms (the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt or any interest therein agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and Beneficial Owners 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 Corporate Trust 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 defined in the Deposit Agreement and
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 Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) Shares or evidence of title thereto registered in the name of
the Owner hereof or as ordered by him or Shares or evidence of title thereto
properly endorsed or accompanied by proper instruments of transfer and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of this Receipt. Such delivery will be made at the option of the Owner
hereof, either at the office of the Custodian or, if feasible, at the Corporate
Trust Office of the Depositary, provided that the forwarding of certificates for
Shares or other Deposited Securities for such delivery at the Corporate Trust
Office of the Depositary shall be at the risk and expense of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper
- 3 -
instruments of transfer and funds sufficient to pay any applicable transfer
taxes and the expenses of the Depositary and upon compliance with such
regulations, if any, as the Depositary may establish for such purpose. This
Receipt may be split into other such Receipts, or may be combined with other
such Receipts into one Receipt, evidencing 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 Company, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or 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 any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the 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
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares which would be 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 comply
with the reasonable written instructions of the Company that the Depositary
shall not accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instruction in order to facilitate the Company's compliance
with the securities laws in the United States.
The Depositary shall not accept Shares for deposit under the Deposit
Agreement to extent that, after giving effect to that deposit, the number of
Shares deposited or
- 4 -
deemed deposited under the Deposit Agreement would exceed the Facility Ceiling.
"Facility Ceiling" means the total number of Shares outstanding multiplied by
the maximum percentage of the Company's share capital specified in an effective
certificate of no objection issued by the Dutch Securities Board.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
hereof to the Depositary. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares are not, and American Depositary Shares
representing such Shares would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and delivery
of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner 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 Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary. The Depositary may 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. The
Depositary shall provide copies thereof to the Company as promptly as
practicable at the request of the Company, unless such disclosure is prohibited
by law.
- 5 -
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 the 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 4.03 of the Deposit Agreement), or by Owners, whichever applicable: (1)
stock transfer and other taxes and other governmental charges, (2) such transfer
or 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 Foreign
Registrar and 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 under the terms of the Deposit Agreement, (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 4.05 of the Deposit Agreement, (5) a fee
of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the
Deposit Agreement and the surrender of Receipts pursuant to Section 2.05 or 6.02
of the Deposit Agreement, (6) a fee of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to Sections
4.01 through 4.04 of the Deposit Agreement and (7) a fee for the distribution of
securities pursuant to Section 4.02 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause (7) treating all such
securities as if they were Shares), but which securities are instead distributed
by the Depositary to Owners and (8) any other charges payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.06 of the
Deposit Agreement and shall be collected at the sole discretion of the
Depositary by billing such Owners for such charge or by deducing such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
- 6 -
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.05 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 and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be, other than
in satisfaction of such Pre-Release), (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 reasonably deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares 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 disregard such limit from time to time as it
deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary, in
its capacity as such and for the benefit of Owners, as security for the
performance of the Pre-Releasee's obligations to the Depositary in connection
with a Pre-Release transaction, including the Pre-Releasee's obligation to
deliver Shares or Receipts upon termination of a Pre-Release transaction (and
shall not, for the avoidance of doubt, constitute Deposited Securities
thereunder).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
- 7 -
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt 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 New York; provided,
however, that the Company and the Depositary, notwithstanding any notice to the
contrary, may treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement or for all
other purposes.
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 or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports will be available for inspection and copying at the
public reference facilities maintained by the Commission located on the date of
the Deposit Agreement at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, 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 will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object
- 8 -
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 receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.09 of the Deposit Agreement) to the Owners of Receipts
entitled thereto; provided, however, that in the event that the Company or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, the amount distributed to the Owners of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary shall, as promptly as practicable, cause the securities or
property received by it to be distributed to the Owners entitled thereto, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may, after consultation with the
Company, if practicable, adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees and expenses of the Depositary as provided in Article 7 hereof and Section
5.09 of the Deposit Agreement) will be distributed by the Depositary to the
Owners of Receipts entitled thereto all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement. The Depositary
may withhold any such distribution of securities if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall if the Company shall so request,
distribute, as promptly as practicable, to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution subject to the terms and
- 9 -
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
of the Deposit Agreement and the payment of the fees and expenses of the
Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary will sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale 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 any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. 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, after consultation
with the Company to the extent practicable, shall have discretion as to the
procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may and at the request of the Company
shall distribute to any Owner to whom it determines the distribution to be
lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it
deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to
- 10 -
permit such rights to be exercised and (b) such Owner has executed such
documents as the Company has determined in its sole discretion are reasonably
required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, execute and deliver Receipts to such
Owner; provided, however, that in the case of a distribution pursuant to the
preceding paragraph, such deposit shall be made, and depositary shares shall be
delivered, under depositary arrangements which provide for issuance of
depositary receipts subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise. Such proceeds shall be distributed as promptly as practicable.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in the Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from
- 11 -
recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and 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, as promptly as
practicable, 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, as promptly as practicable, to the Owners 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 may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners 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 5.09
of the Deposit Agreement.
If such conversion or distribution 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 or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government 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 discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency
- 12 -
received by the Depositary to, or hold such balance uninvested and without
liability for interest thereon for the respective accounts of, the Owners
entitled thereto.
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,
the Depositary shall fix a record date, which date shall, to the extent
practicable, be either (x) the same date as the record date fixed by the
Company, or (y) if different from the record date fixed by the Company, be fixed
after consultation with the Company, (a) for the determination of the Owners of
Receipts who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof, (ii) entitled to give
instructions for the exercise of voting rights at any such meeting or (iii)
responsible for any fees or charges assessed by the Depositary pursuant to the
Deposit Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting or solicitation of proxies or
consents of holders of Shares or other Deposited Securities, the Depositary
shall, if requested in writing by the Company, as soon as practicable
thereafter, mail to the Owners of Receipts a notice, the form of which notice
shall be in the sole discretion of the Depositary, which shall contain (a) such
information as is contained in such notice of meeting received by the Depositary
from the Company, (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of law and of the Articles of Association of the Company, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a statement as to the manner in
which such instructions may be given, including an express indication that if
the Depositary does not receive an instruction from an Owner it may deem that
Owner to have instructed it, in accordance with the last sentence of this
paragraph, to give a discretionary proxy to a person designated by the Company.
Upon the written request of an Owner of a Receipt on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted
the amount of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to such Shares or other Deposited Securities
other than in accordance with such instructions or
- 13 -
deemed instructions. If no instructions are received by the Depositary from any
Owner with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Owner's Receipts on or before the
date established by the Depositary for such purpose, the Depositary shall deem
such Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided that no such instruction
shall be deemed given and no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary (and the
Company agrees to provide such information as promptly as practicable in
writing) that (x) the Company does not wish such proxy given, (y) substantial
opposition exists or (z) such matter materially and adversely affects the rights
of holders of Shares.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, and shall if the Company shall so
request, execute and deliver additional Receipts as in the case of a dividend in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner if, by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
other governmental or regulatory authority, or by reason of any provision,
present or future, of the Articles of Association of the Company, or by reason
of any provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms of
the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur
- 14 -
any liability to any Owner or Beneficial Owner of a Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of the Deposit Agreement it is provided shall or may be
done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.04 of the Deposit Agreement,
such distribution or offering may not be made available to Owners of Receipts,
and the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without
negligence or bad faith. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company shall be under any obligation to appear in or
prosecute any action, suit, or other proceeding in respect of any Deposited
Securities or in respect of the Receipts on behalf of any Owner, Beneficial
Owner or other person, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company shall be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Depositary 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 a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. No disclaimer of liability under the Securities Act of 1933
is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary 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 90 days' prior written notice of such removal, to
become effective upon the later of (i) the 90th day after delivery of the notice
to the Depositary or (ii) the
- 15 -
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do so,
it may appoint a substitute or additional custodian or custodians.
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 Owners or Beneficial Owners 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, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
30 days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner and Beneficial Owner of a Receipt at the time
any amendment so becomes effective shall be deemed, by continuing to hold such
Receipt or any interest therein, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby except in
order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners 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 by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.05 of the Deposit Agreement, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt. 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 Owners thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall
- 16 -
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights and other property 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 one year from the date of termination, the Depositary may sell
the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it thereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners 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). Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary with respect to indemnification, charges, and
expenses.
22. SUBMISSION TO JURISDICTION.
In the Deposit Agreement, the Company has (i) appointed Van der Moolen
Specialists USA, LLC, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the
State of New York, as the Company's authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to the Shares or
Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consented and submitted to the jurisdiction of any state or
federal court in the State of New York in which any such suit or proceeding may
be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding.
23. DISCLOSURE OF INTERESTS.
The Company and the Depositary may from time to time request Current or
former Owners or Beneficial Owners to provide information as to the capacity in
which such Owners or Beneficial Owners own or owned Receipts or own or owned
beneficial interests therein and regarding the identity of any other persons
then or previously interested in such Receipts and the nature of such interest
and such other matters as may be determined by the Company or the Depositary.
Each Owner or Beneficial Owner agrees to provide any such information requested
by the Company or the Depositary
- 17 -
pursuant to this Article. The Depositary agrees to use reasonable efforts to
comply with written instructions received from the Company requesting that the
Depositary forward any such requests to the Owners and to forward to the Company
any such responses to such requests received by the Depositary.
- 18 -
