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DEPOSIT AGREEMENT
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by and among
PETROJARL ASA
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
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Dated as of [date], 2006
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS....................................................2
Section 1.1 "ADS Record Date"..............................................2
Section 1.2 "Affiliate"....................................................3
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and
"Receipt(s)"...................................................3
Section 1.4 "American Depositary Share(s)" and "ADS(s)"....................3
Section 1.5 "Applicant"....................................................3
Section 1.6 "Beneficial Owner".............................................3
Section 1.7 "Certificated ADS(s)"..........................................3
Section 1.8 "Commission"...................................................4
Section 1.9 "Company"......................................................4
Section 1.10 "Custodian"....................................................4
Section 1.11 "Deliver" and "Delivery".......................................4
Section 1.12 "Deposit Agreement"............................................4
Section 1.13 "Depositary"...................................................4
Section 1.14 "Deposited Securities".........................................4
Section 1.15 "Dollars" and "$"..............................................4
Section 1.16 "DTC"..........................................................4
Section 1.17 "DTC Participant"..............................................4
Section 1.18 "Exchange Act".................................................4
Section 1.19 "Foreign Currency".............................................5
Section 1.20 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)"....................................5
Section 1.21 "Holder(s)"....................................................5
Section 1.22 "Kroner" and "NOK".............................................5
Section 1.23 shall refer to the lawful currency of Norway...................5
Section 1.24 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)".............................5
Section 1.25 "Pre-Release Transaction"......................................5
Section 1.26 "Principal Office".............................................5
Section 1.27 "Registrar"....................................................5
Section 1.28 "Restricted Securities"........................................5
Section 1.29 "Restricted ADR(s)", "Restricted ADS(s)" and
"Restricted Shares"............................................6
Section 1.30 "Securities Act"...............................................6
Section 1.31 "Share Registrar"..............................................6
Section 1.32 "Shares".......................................................6
Section 1.33 "Uncertificated ADS(s)"........................................6
Section 1.34 "United States" and "U.S.".....................................6
Section 1.35 "VPS"..........................................................6
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Table of Contents
(continued)
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ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT
OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS..........................................6
Section 2.1 Appointment of Depositary......................................6
Section 2.2 Form and Transferability of ADSs...............................7
Section 2.3 Deposit with Custodian.........................................8
Section 2.4 Registration and Safekeeping of Deposited Securities..........10
Section 2.5 Issuance of ADSs..............................................10
Section 2.6 Transfer, Combination and Split-up of ADRs....................11
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities......12
Section 2.8 Limitations on Execution and Delivery, Transfer, etc.
of ADSs; Suspension of Delivery, Transfer, etc................13
Section 2.9 Lost ADRs, etc................................................14
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records........................................14
Section 2.11 Escheatment...................................................14
Section 2.12 Partial Entitlement ADSs......................................14
Section 2.13 Certificated/Uncertificated ADSs..............................15
Section 2.14 Restricted ADSs...............................................16
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL
OWNERS OF ADSs................................................19
Section 3.1 Proofs, Certificates and Other Information....................19
Section 3.2 Liability for Taxes and Other Charges.........................19
Section 3.3 Representations and Warranties on Deposit of Shares...........20
Section 3.4 Compliance with Information Requests..........................20
Section 3.5 Ownership Restrictions........................................21
Section 3.6 Disclosure of Beneficial Ownership............................21
ARTICLE IV THE DEPOSITED SECURITIES......................................21
Section 4.1 Cash Distributions............................................21
Section 4.2 Distribution in Shares........................................22
Section 4.3 Elective Distributions in Cash or Shares......................22
Section 4.4 Distribution of Rights to Purchase Additional ADSs............23
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares...............................................25
Section 4.6 Demand Rights in respect of Shareholders' Meetings............26
Section 4.7 Redemption....................................................26
Section 4.8 Conversion of Foreign Currency................................27
Section 4.9 Fixing of ADS Record Date.....................................28
Section 4.10 Voting of Deposited Securities................................28
Section 4.11 Changes Affecting Deposited Securities........................31
Section 4.12 Available Information.........................................32
Section 4.13 Reports.......................................................32
Section 4.14 List of Holders...............................................32
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Table of Contents
(continued)
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Section 4.15 Taxation......................................................32
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.................34
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.....34
Section 5.2 Exoneration...................................................34
Section 5.3 Standard of Care..............................................35
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary.......................................36
Section 5.5 The Custodian.................................................36
Section 5.6 Notices and Reports...........................................37
Section 5.7 Issuance of Additional Shares, ADSs etc.......................38
Section 5.8 Indemnification...............................................38
Section 5.9 Fees and Charges of Depositary................................39
Section 5.10 Pre-Release Transactions......................................41
Section 5.11 Restricted Securities Owners..................................41
ARTICLE VI AMENDMENT AND TERMINATION.....................................41
Section 6.1 Amendment/Supplement..........................................41
Section 6.2 Termination...................................................42
ARTICLE VII MISCELLANEOUS.................................................43
Section 7.1 Counterparts..................................................43
Section 7.2 No Third-Party Beneficiaries..................................43
Section 7.3 Severability..................................................44
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect......44
Section 7.5 Notices.......................................................44
Section 7.6 Governing Law and Jurisdiction................................45
Section 7.7 Assignment....................................................46
Section 7.8 Compliance with U.S. Securities Laws..........................47
Section 7.9 Norwegian Law References......................................47
Section 7.10 Titles and References.........................................47
EXHIBITS
Form of ADR..................................................A-1
Fee Schedule.................................................B-1
Form Of Confirmation Of Beneficial Ownership.................C-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ___________, 2006, by and among (i)
Petrojarl ASA, a public limited company organized under the laws of the Kingdom
of Norway, and its successors (the "Company"), (ii) CITIBANK, N.A., a national
banking association organized under the laws of the United States of America
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares issued hereunder (all such capitalized terms as hereinafter
defined).
W I T N E S S E T H T H A T:
WHEREAS, in connection with the demerger of the Company from Petroleum
Geo-Services ASA the Company desires to establish with the Depositary an ADR
facility to provide inter alia for the deposit of the Shares (as hereinafter
defined) and the creation of American Depositary Shares representing the Shares
so deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in the Deposit Agreement (as hereinafter
defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of
the Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in the Deposit Agreement; and
WHEREAS, the Shares are listed on the Oslo Stock Exchange and American
Depositary Shares to be issued pursuant to the terms of the Deposit Agreement
will not be listed for trading on any securities exchange in the United States;
and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in the Deposit Agreement, the execution and delivery of the Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
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Section 1.2 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit Agreement. An ADR
may evidence any number of ADSs and may, in the case of ADSs held through a
central depository such as DTC, be in the form of a "Balance Certificate."
Section 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s) (as
hereinafter defined), the ADR(s) issued to evidence such ADSs. ADS(s) may be
issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by
ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as
the context may require. Each ADS shall represent one (1) Share until there
shall occur a distribution upon Deposited Securities referred to in Section 4.2
or a change in Deposited Securities referred to in Section 4.11 with respect to
which additional ADSs are not issued, and thereafter each ADS shall represent
the Deposited Securities determined in accordance with the terms of such
Sections.
Section 1.5 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial
Owner shall be able to exercise any right or receive any benefit hereunder
solely through the person who is the Holder of the ADSs owned by such Beneficial
Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed
to be the Beneficial Owner of all the ADSs registered in his/her/its name.
Section 1.7 "Certificated ADS(s)" shall have the meaning set forth in
Section 2.13.
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Section 1.8 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency thereto in the United
States.
Section 1.9 "Company" shall mean Petrojarl ASA, a public limited company
incorporated and existing under the laws of the Kingdom of Norway, and its
successors.
Section 1.10 "Custodian" shall mean, as of the date hereof, Den Norske
Bank, having an office at Xxxxxxxx 00, XX-0000, Xxxx, Xxxxxx or Nordea Bank
Norge ASA, having an office at X.X. Xxx 0000 Xxxxxxx, X-0000 Xxxx, Xxxxxx, as
the custodian for the purposes of the Deposit Agreement, and any other entity
that may be appointed by the Depositary pursuant to the terms of Section 5.5 as
successor, substitute or additional custodian hereunder. The term "Custodian"
shall mean any Custodian individually or all Custodians collectively, as the
context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in respect of
ADSs, Deposited Securities and Shares, either (i) the physical delivery of the
certificate(s) representing such securities, or (ii) the electronic delivery of
such securities by means of book-entry transfer, if available.
Section 1.12 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
from time to time in accordance with the terms of the Deposit Agreement.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of the Deposit Agreement, and any successor
depositary hereunder.
Section 1.14 "Deposited Securities" shall mean Shares at any time
deposited under the Deposit Agreement and any and all other securities, property
and cash held by the Depositary or the Custodian in respect thereof, subject, in
the case of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 shall not
constitute Deposited Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.17 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
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Section 1.19 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.20 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.12.
Section 1.21 "Holder(s)" shall mean the person(s) in whose name the ADSs
are registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADS(s) registered in its name, such
person shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs registered in
its name.
Section 1.22 "Kroner" and "NOK" shall refer to the lawful currency of
Norway.
Section 1.23 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.12.
Section 1.24 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10.
Section 1.25 "Principal Office" shall mean, when used with respect to the
Depositary, the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of the Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
Section 1.26 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances, transfers and
cancellations of ADSs as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to the Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
the Deposit Agreement.
Section 1.27 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, Norway, or under a shareholder agreement or the
Articles of Association of the Company or under the regulations of an applicable
securities exchange unless, in each case, such Shares, Deposited Securities or
ADSs are being transferred or sold to persons other than an Affiliate of the
Company in a transaction (a) covered by an effective resale registration
statement, or (b) exempt from the registration requirements of the Securities
5
Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are
not, when held by such person(s), Restricted Securities.
Section 1.28 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.14.
Section 1.29 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
Section 1.30 "Share Registrar" shall mean VPS (as hereinafter defined) or
any other institution organized under the laws of Norway appointed by the
Company to carry out the duties of registrar for the Shares, and any successor
thereto.
Section 1.31 "Shares" shall mean the Company's ordinary shares, par value
of NOK 2.00 per share, validly issued and outstanding and fully paid and may, if
the Depositary so agrees after consultation with the Company, include evidence
of the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of
the Shares of the Company, the term "Shares" shall thereafter, to the maximum
extent permitted by law, represent the successor securities resulting from such
event.
Section 1.32 "Uncertificated ADS(s)" shall have the meaning set forth in
Section 2.13.
Section 1.33 "United States" and "U.S." shall have the meaning assigned to
it in Regulation S as promulgated by the Commission under the Securities Act.
Section 1.34 "VPS" shall mean Norwegian Central Securities Depositary
(Verdipapirsentralen), which provides the book-entry settlement system for
equity securities in Norway, or any successor entity thereto.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in the Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
6
in accordance with the terms and conditions of the Deposit Agreement shall be
deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in the Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of the Deposit Agreement and
the applicable ADR(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs
which shall be engraved, printed, lithographed or produced in such other
manner as may be agreed upon by the Company and the Depositary. ADRs may
be issued under the Deposit Agreement in denominations of any whole number
of ADSs. The ADRs shall be substantially in the form set forth in Exhibit
A to the Deposit Agreement, with any appropriate insertions, modifications
and omissions, in each case as otherwise contemplated in the Deposit
Agreement or required by law. ADRs shall be (i) dated, (ii) signed by the
manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a
duly authorized signatory of the Registrar, and (iv) registered in the
books maintained by the Registrar for the registration of issuances and
transfers of ADSs. No ADR and no Certificated ADS evidenced thereby shall
be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless
such ADR shall have been so dated, signed, countersigned and registered.
ADRs bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case
may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such ADR
by the Depositary. The ADRs shall bear a CUSIP number that is different
from any CUSIP number that was, is or may be assigned to any depositary
receipts previously or subsequently issued pursuant to any other
arrangement between the Depositary (or any other depositary) and the
Company and which are not ADRs outstanding hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the
provisions of the Deposit Agreement as (i) may be necessary to enable the
Depositary and the Company to perform their respective obligations
hereunder, (ii) may be required to comply with any applicable laws or
regulations, or with the rules and regulations of any securities exchange
or market upon which ADSs may be traded, listed or quoted, or to conform
with any usage with respect thereto, (iii) may be necessary to indicate
any special limitations or restrictions to which any particular ADRs or
ADSs are subject by reason of the date of issuance of the Deposited
Securities or otherwise, or (iv) may be required by any book-entry system
in which the ADSs are held. Holders and Beneficial Owners shall be deemed,
7
for all purposes, to have notice of, and to be bound by, the terms and
conditions of the legends set forth, in the case of Holders, on the ADR
registered in the name of the applicable Holders or, in the case of
Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the
ADR, title to an ADR (and to each Certificated ADS evidenced thereby)
shall be transferable upon the same terms as a certificated security under
the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied
by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of
an ADS (that is, the person in whose name an ADS is registered on the
books of the Depositary) as the absolute owner thereof for all purposes.
Neither the Depositary nor the Company shall have any obligation nor be
subject to any liability under the Deposit Agreement or any ADR to any
holder or any Beneficial Owner unless such holder is the Holder registered
on the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the ADSs into DTC. All ADSs held through DTC will be
registered in the name of the nominee for DTC (currently "Cede & Co."). As
such, the nominee for DTC will be the only "Holder" of all ADSs held
through DTC. Unless issued by the Depositary as Uncertificated ADSs, the
ADSs registered in the name of Cede & Co. will be evidenced by a single
ADR in the form of a "Balance Certificate," which will provide that it
represents the aggregate number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
number of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of
DTC or its nominee as hereinafter provided. Citibank, N.A. (or such other
entity as is appointed by DTC or its nominee) may hold the "Balance
Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants
to exercise or be entitled to any rights attributable to such ADSs. The
DTC Participants shall for all purposes be deemed to have all requisite
power and authority to act on behalf of the Beneficial Owners of the ADSs
held in the DTC Participants' respective accounts in DTC and the
Depositary shall for all purposes be authorized to rely upon any
instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADSs
registered in the name of the nominee for DTC will be shown on, and
transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to
the interests of clients of DTC Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and conditions of
the Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7) at any
8
time, whether or not the transfer books of the Company or the Share Registrar,
if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of
Shares shall be accompanied by the following: (A) confirmation of book-entry
transfer of the Shares to the Custodian and that the Shares have been registered
in the name of the Custodian, the Depositary or any of their respective nominees
or that irrevocable instructions have been given to cause such Shares to be so
transferred and that the Shares have been registered in the name of the
Custodian, the Depositary or any of their respective nominees, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence of such payments (including, without
limitation, stamping or otherwise marking such Shares by way of receipt) as may
be required by the Depositary or the Custodian in accordance with the provisions
of the Deposit Agreement and applicable law, (C) if the Depositary so requires,
a written order directing the Depositary to issue and deliver to, or upon the
written order of, the person(s) stated in such order the number of ADSs
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in Norway, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument satisfactory
to the Depositary or the Custodian which provides for the prompt transfer by any
person in whose name the Shares are or have been recorded to the Custodian of
any distribution, or right to subscribe for additional Shares or to receive
other property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be satisfactory to the Depositary or the
Custodian and (ii) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities except as
contemplated by Section 2.14 nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Shares shall be accepted for deposit unless accompanied by evidence, if any
is required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of Norway and any
necessary approval has been granted by any applicable governmental body in
Norway, if any. The Depositary may issue ADSs against evidence of rights to
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement (A) any Shares or other
securities required to be registered under the provisions of the Securities Act,
9
unless (i) a registration statement is in effect as to such Shares or other
securities or (ii) the deposit is made upon terms contemplated in Section 2.14,
or (B) any Shares or other securities the deposit of which would violate any
provisions of the Articles of Association of the Company. For purposes of the
foregoing sentence, the Depositary shall be entitled to rely upon
representations and warranties made or deemed made pursuant to the Deposit
Agreement and shall not be required to make any further investigation. The
Depositary will comply with written instructions of the Company (received by the
Depositary reasonably in advance) not to accept for deposit hereunder any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with the securities laws of the United States.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements with
the Custodian for the Custodian to confirm to the Depositary upon receipt of a
deposit of Shares (i) that a deposit of Shares has been made pursuant to Section
2.3, (ii) that such Deposited Securities have been transferred to the Custodian
via book-entry transfer in VPS and recorded in the name of the Depositary, the
Custodian or a nominee of either on the shareholders' register maintained by or
on behalf of the Company by the Share Registrar if registered Shares have been
deposited or, if deposit is made by book-entry transfer, confirmation of such
transfer in the books of the VPS, (iii) that all required documents have been
received, and (iv) the person(s) to whom or upon whose order ADSs are
deliverable in respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of the Deposit Agreement and
applicable law, shall issue the ADSs representing the Shares so deposited to or
upon the order of the person(s) named in the notice delivered to the Depositary
and, if applicable, shall execute and deliver at its Principal Office Receipt(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of ADSs to which such person(s) are entitled, but, in each
case, only upon payment to the Depositary of the charges of the Depositary for
accepting a deposit, issuing ADSs (as set forth in Section 5.9 and Exhibit B
hereto) and all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Shares and the issuance of the ADS(s).
The Depositary shall only issue ADSs in whole numbers and deliver, if
applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall
prohibit any Pre-Release Transaction upon the terms set forth in the Deposit
Agreement.
10
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall register the transfer of ADRs (and
of the ADSs represented thereby) on the books maintained for such purpose
and the Depositary shall (x) cancel such ADRs and execute new ADRs
evidencing the same aggregate number of ADSs as those evidenced by the
ADRs canceled by the Depositary, (y) cause the Registrar to countersign
such new ADRs and (z) Deliver such new ADRs to or upon the order of the
person entitled thereto, if each of the following conditions has been
satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) the
surrendered ADRs have been properly endorsed or are accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) the surrendered ADRs have
been duly stamped (if required by the laws of the State of New York or of
the United States), and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable ADRs, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
(b) Combination & Split Up. The Registrar shall register the
split-up or combination of ADRs (and of the ADSs represented thereby) on
the books maintained for such purpose and the Depositary shall (x) cancel
such ADRs and execute new ADRs for the number of ADSs requested, but in
the aggregate not exceeding the number of ADSs evidenced by the ADRs
cancelled by the Depositary, (y) cause the Registrar to countersign such
new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) the
ADRs have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a split-up or combination thereof, and (ii) all
applicable fees and charges of, and expenses incurred by, the Depositary
and all applicable taxes and governmental charges (as are set forth in
Section 5.9 and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable ADRs, of the
Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations
and split-ups of ADRs at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such ADRs and will be
entitled to protection and indemnity to the same extent as the Depositary.
Such co-transfer agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.6 (other
than the Depositary) shall give notice in writing to the Depositary
11
accepting such appointment and agreeing to be bound by the applicable
terms of the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B)
have been paid, subject, however, in each case, to the terms and conditions of
the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the
Company's Articles of Association and of any applicable laws and the rules of
VPS, and to any provisions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so
cancelled, of the Articles of Association of the Company, of any applicable laws
and of the rules of the VPS, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
12
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
execution and delivery, registration of issuance, transfer, split-up,
combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or
the Custodian may require (i) payment from the depositor of Shares or
presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with
respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Section 5.9
and Exhibit B, (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature or any other matter contemplated
by Section 3.1, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to
the withdrawal of Deposited Securities and (B) such reasonable regulations
as the Depositary and the Company may establish consistent with the
provisions of the representative ADR, if applicable, the Deposit Agreement
and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be
suspended, or the deposit of particular Shares may be refused, or the
registration of transfer of ADSs in particular instances may be refused,
or the registration of transfers of ADSs generally may be suspended,
during any period when the transfer books of the Company, the Depositary,
a Registrar or the Share Registrar are closed or if any such action is
deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law
or regulation, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of the Deposit Agreement or the representative ADR(s), if
applicable, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 7.8.
13
(c) Regulatory Restrictions. Notwithstanding any provision of the
Deposit Agreement or any ADR(s) to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities associated
herewith at any time 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,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the ADRs or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Instruction I.A.(l)
of the General Instructions to Form F-6 (as such General Instructions may
be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed,
lost, or stolen, the Depositary shall execute and deliver a new ADR of like
tenor at the expense of the Holder (a) in the case of a mutilated ADR, in
exchange of and substitution for such mutilated ADR upon cancellation thereof,
or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in
substitution for such destroyed, lost, or stolen ADR, after the Holder thereof
(i) has submitted to the Depositary a written request for such exchange and
substitution before the Depositary has notice that the ADR has been acquired by
a bona fide purchaser, (ii) has provided such security or indemnity (including
an indemnity bond) as may be required by the Depositary to save it and any of
its agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction, loss or theft of such ADR, the
authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records. All ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
Section 2.11 Escheatment. In the event any unclaimed property relating to
the ADSs, for any reason, is in the possession of Depositary and has not been
claimed by the Holder thereof or cannot be delivered to the Holder thereof
through usual channels, the Depositary shall, upon expiration of any applicable
statutory period relating to abandoned property laws, escheat such unclaimed
property to the relevant authorities in accordance with the laws of each of the
relevant States of the United States.
Section 2.12 Partial Entitlement ADSs. In the event any Shares are
deposited which (i) entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then on
deposit or (ii) are not fully fungible (including, without limitation, as to
settlement or trading) with the Shares then on deposit (the Shares then on
deposit collectively, "Full Entitlement Shares" and the Shares with different
14
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement,
issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) and, if applicable by
issuing ADRs evidencing such ADSs with applicable notations thereon ("Partial
Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs", respectively). If and
when Partial Entitlement Shares become Full Entitlement Shares, the Depositary
shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give
Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer
the Partial Entitlement Shares into the account of the Full Entitlement Shares,
and (c) take such actions as are necessary to remove the distinctions between
(i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs
and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.12. The Depositary is authorized to take any and
all other actions as may be necessary (including, without limitation, making the
necessary notations on ADRs) to give effect to the terms of this Section 2.12.
The Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.13 Certificated/Uncertificated ADSs. Notwithstanding any other
provision of the Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under the Deposit
Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (ii) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of
which the Depositary has notice at such time, shall at all times have the right
to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type
and class, subject in each case to applicable laws and any rules and regulations
the Depositary may have established in respect of the Uncertificated ADSs.
Holders of Certificated ADSs shall, if the Depositary maintains a direct
registration system for the ADSs, have the right to exchange the Certificated
ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated
ADS(s) to the Depositary for such purpose and (ii) the presentation of a written
request to that effect to the Depositary, subject in each case to (a) all liens
and restrictions noted on the ADR evidencing the Certificated ADS(s) and all
adverse claims of which the Depositary then has notice, (b) the terms of the
Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (c) applicable law, and (d) payment of
the Depositary fees and expenses applicable to such exchange of Certificated
ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all respects be
identical to Certificated ADS(s) of the same type and class, except that (i) no
ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement,
15
be transferable upon the same terms and conditions as uncertificated securities
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be
recorded on the books of the Depositary maintained for such purpose and evidence
of such ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement
existing rules and regulations, as may be deemed reasonably necessary to
maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such
rules and regulations do not conflict with the terms of the Deposit Agreement
and applicable law, and (b) the terms of such rules and regulations are readily
available to Holders upon request, (v) the Uncertificated ADS(s) shall not be
entitled to any benefits under the Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company unless such Uncertificated
ADS(s) is/are registered on the books of the Depositary maintained for such
purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii)
upon termination of the Deposit Agreement, the Depositary shall not require
Holders of Uncertificated ADSs to affirmatively instruct the Depositary before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3,
4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.13. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.13. Any references in the Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.13 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13,
the terms and conditions set forth in this Section 2.13 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
16
Section 2.14 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to insure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by the Deposit Agreement and
(ii) an opinion of counsel satisfactory to the Depositary setting forth, inter
alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.14 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of the Deposit Agreement. In the event
that, in determining the rights and obligations of parties hereto with respect
to any Restricted ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.14) and (b) the terms of (i) this Section
2.14 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.14 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
17
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to
be Restricted Securities, the Depositary, upon receipt of (x) an opinion of
counsel satisfactory to the Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations between
the applicable Restricted Shares held on deposit under this Section 2.14 and the
other Shares held on deposit under the terms of the Deposit Agreement that are
not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs on the
same terms as, and fully fungible with, the other ADRs and ADSs issued and
outstanding under the terms of the Deposit Agreement that are not Restricted
ADRs or Restricted ADSs, (iii) take all actions necessary to remove any
distinctions, limitations and restrictions previously existing under this
Section 2.14 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any ADR or ADS
or the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8, the
delivery of any Deposited Securities until such proof or other information is
filed or such certifications are executed, or such representations are made, or
such other documentation or information provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner, as
applicable, hereby consents to the Depositary providing the Company or any
Norwegian Public Authority (i.e., the Norwegian Securities Commission), in a
timely manner, with copies or originals if necessary and appropriate of (i) any
such proofs of citizenship or residence, taxpayer status, or exchange control
approval which it receives from Holders and Beneficial Owners, and (ii) any
other information (including the number of Shares beneficially owned) or
documents which the Company may reasonably, or any Norwegian Public Authority
may, request and which the Depositary shall request and receive from any Holder
or Beneficial Owner or any person presenting Shares for deposit or ADSs for
cancellation, transfer or withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner remaining liable for
any deficiency. The Custodian may refuse the deposit of Shares and the
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Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to Section 7.8)
the withdrawal of Deposited Securities until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and any of their
agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14), and (vi) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of the Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the Oslo Stock Exchange, and any
other stock exchange on which the Shares or ADSs are, or will be, registered,
traded or listed or the Articles of Association of the Company, which are made
to provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to use its
reasonable efforts to forward, upon the request of the Company and at the
Company's expense, any such request from the Company to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
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Section 3.5 Ownership Restrictions. Notwithstanding any other provision in
the Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Articles of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
the ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Association of the Company.
Section 3.6 Disclosure of Beneficial Ownership. The Company has informed
the Depositary that, as of the date of the Deposit Agreement, any person, entity
or group acting in concert that acquires or disposes of Shares or ADS resulting
in its beneficial ownership, directly or indirectly, in the aggregate, reaching,
exceeding or falling below the respective thresholds of 1/20, 1/10, 1/5, 1/3,
1/2, 2/3 or 9/10, or such other percentage as may be required to be disclosed
from time to time under any law, regulation, or practice of Norway, of the share
capital of the Company, shall promptly send a written notification to the
Company at the address set forth in Section 7.5, by registered or certified
mail, regarding such beneficial ownership.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
21
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9, distribute to the Holders as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in the aggregate the number of Shares received as such dividend, or free
distribution, subject to the other terms of the Deposit Agreement (including,
without limitation, (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs are not
so distributed, each ADS issued and outstanding after the ADS Record Date shall,
to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms described in Section 4.1. In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligation under Section 5.7, has furnished an opinion of U.S. counsel
determining that Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders (and no such registration statement
has been declared effective), the Depositary may dispose of all or a portion of
such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of (a) taxes and (b) fees and
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms described in Section 4.1. The Depositary shall hold
and/or distribute any unsold balance of such property in accordance with the
provisions of the Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give timely notice thereof to
the Depositary prior to the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon
timely receipt of notice indicating that the Company wishes such elective
distribution to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
22
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in Norway in respect of the Shares for which no
election is made, either (X) cash upon the terms described in Section 4.1 or (Y)
additional ADSs representing such additional Shares upon the terms described in
Section 4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed
distribution in cash or in additional ADSs. The Company shall provide reasonable
assistance to the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution (X) in cash,
the distribution shall be made upon the terms described in Section 4.1, or (Y)
in ADSs, the distribution shall be made upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe
for additional Shares, the Company shall give timely notice thereof to the
Depositary stating whether or not it wishes such rights to be made
available to Holders of ADSs. Upon timely receipt of a notice indicating
that the Company wishes such rights to be made available to Holders of
ADSs, the Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the
Holders. The Depositary shall make such rights available to Holders only
if (i) the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. In the event any of the conditions set forth above are not
satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) below. In the event all
conditions set forth above are satisfied, the Depositary shall establish
an ADS Record Date (upon the terms described in Section 4.9) and establish
procedures to (x) distribute rights to purchase additional ADSs (by means
of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), and (z) to deliver ADSs upon the valid exercise of such rights.
The Company shall provide reasonable assistance to the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall
obligate the Depositary to make available to the Holders a method to
exercise rights to subscribe for Shares (rather than ADSs).
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(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the
rights not be made available to Holders, (ii) the Depositary fails to
receive satisfactory documentation within the terms of Section 5.7 or
determines it is not reasonably practicable to make the rights available
to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public or
private sale) as it may deem practicable. The Company shall provide
reasonable assistance to the Depositary to the extent necessary to
determine such legality and practicability. The Depositary shall, upon
such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to
arrange for the sale of the rights upon the terms described in Section
4.4(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case satisfactory to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
24
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give timely notice thereof
to the Depositary and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders of
ADSs, the Depositary shall consult with the Company, and the Company shall
provide reasonable assistance to the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall
have requested the Depositary to make such distribution to Holders, (ii)
the Depositary shall have received satisfactory documentation within the
terms of Section 5.7, and (iii) the Depositary shall have determined that
such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of
the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall
distribute the property so received to the Holders of record, as of the
ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary,
and (ii) net of any taxes withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and
in such manner (including public or private sale) as the Depositary may
deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation
within the terms of Section 5.7, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable, the
Depositary shall sell or cause such property to be sold in a public or
private sale, at such place or places and upon such terms as it may deem
practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders as of
25
the ADS Record Date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property
for the account of the Holders in any way it deems reasonably practicable
under the circumstances.
Section 4.6 Demand Rights in respect of Shareholders' Meetings.
(a) Demand Rights by Shareholders in respect of Shareholders'
Meetings. The Company has informed the Depositary that under Norwegian
law, as in effect as of the date of the Deposit Agreement, holders of
Shares have the right to demand that the Company (i) call a general
extraordinary shareholders' meeting to discuss or resolve specific matters
("Meeting Call Right(s)"), provided that, the Meeting Call Right is
exercised (y) in writing, and (z) by holders of at least five percent (5%)
of the issued and outstanding Shares, as of the date of exercise of the
applicable Meeting Call Right, and (ii) place an item on the agenda
("Agenda Proposal Right(s)") of any validly called general ordinary or
extraordinary shareholders' meeting, including a general extraordinary
shareholders' meeting to be called as a result of the valid exercise of a
Meeting Call Right, provided that, the demand for exercise of the Agenda
Proposal Right is (x) presented in time for the Company to include the
matter in the agenda for the meeting, or if the notice for the meeting has
already been issued, at least two weeks before the date of the meeting,
(y) made in writing by a shareholder, and (z) specific in nature and
referring to issues for discussion in addition to the specific matters
initially included or requested to be included on the agenda of the
applicable general shareholders' meeting. Norwegian law and the Company's
Articles of Association may be amended from time to time, including by
means of amendments that impose additional requirements to exercise the
Meeting Call Rights and the Agenda Proposal Rights. Neither the Company
nor the Depositary have any obligation under the Deposit Agreement to
provide any notice of any such changes to the Holders or Beneficial
Owners.
(b) Demand Rights by Beneficial Owners of ADSs in respect of
Shareholders' Meetings. Beneficial Owners of Shares owned in the form of
ADSs will have Meeting Call Rights and Agenda Proposal Rights, provided
that, the Beneficial Owners of ADSs satisfy the conditions specified in
Section 4.6(a) above, except that (i) the Beneficial Owners of ADSs shall
deliver any documents contemplated in Section 4.6(a) above to the Company
via email at the email address specified in Section 7.5 and (ii) the
Beneficial Owner shall be required to deliver to the Company evidence
reasonably satisfactory to the Company of such Beneficial Owner's status
or beneficial ownership of the requisite number of Shares (including
Shares owned in the form of ADSs) in such email. There can be no assurance
that Beneficial Owners in general, or any Beneficial Owner in particular,
will receive notice of the exercise of Meeting Call Rights, as described
above, with sufficient time to enable the Beneficial Owner to take the
actions necessary to validly and timely exercise Agenda Proposal Rights
with respect to any general extraordinary shareholders' meeting.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary which notice shall set forth the
particulars of the proposed redemption. Upon timely receipt of (i) such notice
26
and (ii) satisfactory documentation given by the Company to the Depositary
within the terms of Section 5.7, and only if the Depositary shall have
determined that such proposed redemption is practicable, the Depositary shall
provide to each Holder a notice setting forth the intended exercise by the
Company of the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. The Depositary shall instruct the Custodian
to present to the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred
by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable,
upon delivery of such ADSs by Holders thereof and the terms set forth in
Sections 4.1 and 6.2. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as may be determined by the Depositary. The redemption price per ADS shall be
the dollar equivalent of the per share amount received by the Depositary
(adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the
Deposited Securities represented by ADSs (subject to the terms of Section 4.8
and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of the Deposit Agreement. If the Depositary
shall have distributed warrants or other instruments that entitle the holders
thereof to such Dollars, the Depositary shall distribute such Dollars to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practicable or lawful, or
27
if any approval or license of any governmental authority or agency thereof that
is required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of, consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of
ADS(s) who shall be entitled to receive such distribution, to give instructions
for the exercise of voting rights at any such meeting, to give or withhold such
consent, to receive such notice or solicitation or to otherwise take action, or
to exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in Norway. Subject to applicable law and the
provisions of Section 4.1 through 4.8 and to the other terms and conditions of
the Deposit Agreement, only the Holders of ADSs at the close of business in New
York on such ADS Record Date shall be entitled to receive such distribution, to
give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
Section 4.10 Voting of Deposited Securities.
(a) Mailing to Holders. The Company shall send written notice of any
meeting of shareholders to the Depositary prior to the relevant meeting in
accordance with its Articles of Association and Norwegian law. As soon as
practicable after receipt of such notice from the Company and provided the
Depositary has timely received such notice, the Depositary shall (i) fix
the ADS Record Date in respect of such meeting in accordance with Section
4.9, and (ii) distribute, at the Company's expense and provided no U.S.
legal prohibition exists, to Holders as of the ADS Record Date a notice
(the "Notice") containing (A) the information (or a summary thereof in a
form prepared by the Company) received by the Depositary in connection
with such meeting, including, if applicable, the agenda for the meeting,
and (B) a statement that Holders, in their capacity as Beneficial Owners
or acting on behalf of one or more named Beneficial Owners, as of the
close of business on the ADS Record Date, will be entitled, subject to
applicable provisions of Norwegian law and the Company's Articles of
Association and to the provisions of the Deposit Agreement and the
Deposited Securities, to instruct the Depositary as to the exercise of the
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voting rights of such Beneficial Owners, if any, pertaining to the
Deposited Securities represented by their respective ADSs by completing
and returning to the Depositary by the date specified in such Notice
either (i) a request for admission (an "Admission Request") enabling such
Beneficial Owner of ADSs to gain admission to such meeting in accordance
with paragraph (b) of this Section 4.10, or (ii) a proxy and voting
instruction card (a "Voting Instruction Card") pursuant to which a Holder
(acting, as the case may be, as a Beneficial Owner of ADSs or as proxy on
behalf of one or more Beneficial Owners of ADSs named in a certification
of beneficial ownership) may appoint the Depositary or some other person
as proxy with power of substitution to vote at such meeting in accordance
with the instructions set forth in such Voting Instruction Card and with
paragraph (c) of this Section 4.10. If requested by the Company, the
Depositary may request that any Holder surrendering ADSs for cancellation,
at any time immediately preceding the date of the meetings of
shareholders, confirm to the Depositary and the Company that such person
has not and will not instruct the Depositary to vote the Deposited
Securities evidenced by such Holder's ADSs.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law, regulations, applicable
stock exchange requirements, or the Company's Articles of Association, in lieu
of distribution of the materials provided to the Depositary in connection with
any meeting of, or solicitation of consents or proxies from, holders of
Deposited Securities, distribute to the Holders a notice that provides Holders
with a means to retrieve or receive such materials upon request (i.e., by
reference to a website containing the materials for retrieval or a toll-free
number for requesting copies of the materials).
(b) Attendance at Meeting in Person. Upon receipt by the Depositary
of (x) a duly completed Admission Request and (y) such evidence of
beneficial ownership as shall be reasonably satisfactory to the
Depositary, the Depositary shall, as promptly as practicable and in any
event not less than two (2) business days prior to the date of such
meeting, (i) notify the Company in writing of a Beneficial Owner's
intention to attend such shareholders' meeting (in person or by proxy
authorizing a person other than the Depositary, the Custodian or any of
their respective agents to exercise voting rights on behalf of such
Beneficial Owner) to vote, to ask questions and otherwise to participate
in such meeting and (ii) cause the confirmation of beneficial ownership
described in paragraph (d) of this Section 4.10 to be delivered to the
Company and to such Beneficial Owner at the address specified by such
Beneficial Owner in accordance with paragraph (d) of this Section 4.10.
(c) Exercise of Voting Rights Through the Depositary. Upon receipt
by the Depositary of a duly completed Voting Instruction Card by the date
set therefor in the Notice (which date shall, unless the Depositary elects
to grant additional time to return such Voting Instruction Card, be at
least ten (10) business days prior to the date of the relevant
shareholders' meeting) authorizing the Depositary, the Custodian or any of
their respective agents to exercise voting rights on behalf of Beneficial
Owners, the Depositary shall (i) as promptly as practicable but in any
event not less than two (2) business days prior to such shareholders'
meeting, cause a statement that such Beneficial Owners intend to vote at
such meeting, together with each Beneficial Owner's name and address and
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the confirmation of beneficial ownership described in paragraph (d) of
this Section 4.10, to be delivered to the Company; (ii) notify the Company
in writing of the Depositary's or the Custodian's or any of their
respective agents' intention to attend such shareholders' meeting on
behalf of such Beneficial Owners and shall cause confirmation of their
authority in that respect to be delivered to the Company; and (iii)
endeavor, insofar as practicable and permitted under any applicable
provisions of Norwegian law and the Company's Articles of Association,
vote or cause to be voted, either in person at the meeting or by duly
appointing a proxy to appear on its behalf at the meeting, the relevant
Deposited Securities in accordance with the specific instructions set
forth in such Voting Instruction Card. Voting instructions may be given
only in respect of a number of ADSs representing an integral number of
Deposited Securities.
Neither the Depositary nor the Custodian shall under any circumstances exercise
any discretion as to voting and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of for
purposes of establishing a quorum or otherwise, the Deposited Securities
represented by ADSs, except pursuant to and in accordance with the Voting
Instruction Card received from Holders or as otherwise contemplated herein. If
the Depositary timely receives the Voting Instruction Card from a Holder which
fails to specify the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary will deem such
Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to vote in favor of the items set forth in such Voting
Instruction Card. Deposited Securities represented by ADSs for which no timely
Voting Instruction Card or related confirmation of beneficial ownership received
by the Depositary from the Holder shall not be voted.
(d) Confirmation of Beneficial Ownership. With respect to each
Voting Instruction Card or Admission Request (each with evidence of
beneficial ownership) received by the Depositary from a Holder that is a
Beneficial Owner or acting on behalf of a Beneficial Owner wishing to
exercise voting rights pursuant to paragraphs (b) and (c) of this Section
4.10, together with such evidence of beneficial ownership as the
Depositary may reasonably require, the Depositary shall promptly deliver
to the Company a document in substantially the form of Exhibit C attached
to the Deposit Agreement confirming that it has received evidence (which
may be delivered to the Depositary via facsimile) that such person is the
Beneficial Owner of such number of Shares held by the Depositary as
correspond to the number of ADSs owned by such person. A statement that
such Beneficial Owner intends to vote at a shareholders' meeting (as
described in paragraphs (b) and (c) of this Section 4.10), together with
such Beneficial Owner's name and address and the confirmation of
beneficial ownership, must be received by the Company prior to the
expiration of the time limit therefor as set forth in the Company's notice
of such shareholders' meeting and the Company's Articles of Association
(currently not less than two (2) business days prior to the date of such
meeting). In addition, Beneficial Owners who wish to attend the
shareholders' meeting in person must present the confirmation of
beneficial ownership at the meeting.
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(e) Exercise of Voting Rights as Shareholder. Holders and Beneficial
Owners of ADSs who wish to exercise their voting rights directly as
shareholders (rather than as ADS Holders through the services of the
Depositary) will be entitled to do so, subject to the requirements of
Norwegian law and the Company's Articles of Association, upon timely
surrender to the Depositary of ADSs for cancellation (in accordance with
the terms of Section 2.7 hereof) and re-registration of the Deposited
Securities in the name of the Holder or Beneficial Owner so surrendering
the ADSs.
(f) Obligation of Depositary. The Company and the Depositary agree
that in the event the Depositary does not receive any of (i) the Notice,
(ii) the Admission Request or (iii) the Voting Instruction Card on or
prior to the date specified therefore in this Section 4.10, the Depositary
shall have no obligation to distribute or forward, as the case may be,
such notice or instruction card or prepare the applicable confirmation of
beneficial ownership.
(g) Charges. The Depositary will not charge the Holders for the
voting services described in this Section 4.10.
(h) Amendment of Voting Procedures. There can be no assurance that
any amendments, modifications or additional voting procedures upon which
the Depositary and the Company may agree pursuant to Section 6.1 of the
Deposit Agreement will not limit the practical ability of Beneficial
Owners of ADSs to exercise voting rights in respect of the foregoing. The
Depositary and the Company agree to use reasonable efforts to make and
maintain arrangements (in addition to or in substitution of the
arrangements described in this Section 4.10) to enable Beneficial Owners
to vote the Deposited Securities underlying their ADSs, except as such
efforts may be limited by the right of the Company's shareholders to amend
its Articles of Association and applicable law.
(i) General. Notwithstanding anything else contained in the Deposit
Agreement or any ADR, the Depositary shall not have any obligation to take
any action with respect to any meeting, or solicitation of consents or
proxies, of holders of Deposited Securities if the taking of such action
would violate U.S. laws. There can be no assurance that Holders generally
or any Holder in particular will receive the Notice described above with
sufficient time to enable the Holder to deliver the Admission Request, the
Voting Instruction Card and related confirmation of beneficial ownership
to the Depositary in a timely manner. According to Norwegian law as in
effect as of the date of the Deposit Agreement, only owners of Shares that
are registered in VPS have an unconditional right to vote, provided that
the procedure for voting set out in the Articles of Association of the
Company is followed. As a result, there can be no assurance that a
Beneficial Owner attending a general meeting of the Company in person or
by proxy through the Depositary will not be prohibited from exercising
voting rights.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
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reorganization, merger, 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 the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change, split-up,
cancellation, consolidation or other reclassification of Deposited Securities,
recapitalization, organization, merger, consolidation or sale of assets, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such actions are
not in violation of any applicable laws or regulations, (i) issue and deliver
additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the
Deposit Agreement and the applicable ADRs, (iii) amend the applicable
Registration Statement(s) on Form F-6 as filed with the Commission in respect of
the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for
new ADRs, and (v) take such other actions as are appropriate to reflect the
transaction with respect to the ADSs. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of ADRs. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
Section 4.12 Available Information. The Company furnishes the Commission
with certain public reports and documents required by foreign law or otherwise
under Rule 12g3-2(b) under the Exchange Act. These reports and documents can be
inspected and copied at public reference facilities maintained by the Commission
located (as of the date of the Deposit Agreement) at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
Section 4.13 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6.
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Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable. Neither the Depositary nor the Custodian shall be
liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such Holder's or Beneficial
Owner's income tax liability.
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The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Passive Foreign Investment
Company" (as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of the Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the issuance and delivery of ADSs, the acceptance for
surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar or
appoint a Registrar or one or more co-registrars for registration of issuances,
cancellations, transfers, combinations and split-ups of ADSs and, if applicable,
to countersign ADRs evidencing the ADSs so issued, transferred, combined or
split-up, in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Norway or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
34
or civil penalties or restraint, or by reason of any provision, present or
future, of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under the Deposit Agreement
or any ADRs to any Holder(s) or Beneficial Owner(s), except that the Company and
the Depositary agree to perform their respective obligations specifically set
forth in the Deposit Agreement or the applicable ADRs without negligence or bad
faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the ADSs,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of the
Deposit Agreement. The Depositary shall not incur any liability for any failure
35
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2), or (ii) the appointment by the Company of
a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed Den
Norske Bank and Nordea Bank Norge ASA as Custodian for the purpose of the
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
36
subject at all times and in all respects to the direction of the Depositary for
the Shares for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and no other Custodian has
previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian that is organized under the laws of Norway. The Depositary
shall require such resigning or discharged Custodian to deliver the Deposited
Securities held by it, together with all such records maintained by it as
Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may appoint
an additional custodian with respect to any Deposited Securities, or discharge
the Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. Upon request, the Company shall also
furnish to the Custodian and the Depositary a summary, in English, of any
applicable provisions or proposed provisions of the Articles of Association of
the Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
The Company will also transmit to the Depositary English-language versions
of notices, reports and communications which are made generally available by the
Company to holders of its Shares or other Deposited Securities. The Depositary
shall arrange, at the request of the Company and at the Company's expense, to
provide copies thereof to all Holders or make such notices, reports and other
communications available to all Holders on a basis similar to that for holders
of Shares or other Deposited Securities or on such other basis as the Company
may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Articles of Association
along with the provisions of or governing the Shares and any other Deposited
Securities issued by the Company in connection with such Shares, and promptly
37
upon any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of the Deposit
Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the proposed transaction does not violate the
registration provisions of the Securities Act, or any other applicable laws
(including, without limitation, the Investment Company Act of 1940, as amended,
the Exchange Act and the securities laws of the states of the U.S.). In support
of the foregoing, the Company will furnish to the Depositary (a) a written
opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating
whether such transaction (1) requires a registration statement under the
Securities Act to be in effect or (2) is exempt from the registration
requirements of the Securities Act and (b) an opinion of Norwegian counsel
stating that (1) making the transaction available to Holders and Beneficial
Owners does not violate the laws or regulations of Norway and (2) all requisite
regulatory consents and approvals have been obtained in Norway. If the filing of
a registration statement is required, the Depositary shall not have any
obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in the Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The Company
agrees with the Depositary that neither the Company nor any of its Affiliates
will at any time (i) deposit any Shares or other Deposited Securities, either
upon original issuance or upon a sale of Shares or other Deposited Securities
previously issued and reacquired by the Company or by any such Affiliate, or
(ii) issue additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for such
securities, unless such transaction and the securities issuable in such
transaction do not violate the registration provisions of the Securities Act, or
any other applicable laws (including, without limitation, the Investment Company
Act of 1940, as amended, the Exchange Act and the securities laws of the states
of the U.S.).
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Notwithstanding anything else contained in the Deposit Agreement, nothing
in the Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary or any Custodian under the terms hereof due to (i) the
negligence or bad faith of the Depositary or any Custodian, (ii) the breach of
the terms of the Deposit Agreement by the Depositary or any Custodian and (iii)
the negligence or bad faith of the Depositary in the appointment of any agent
hereunder.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof, (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, as the case may be, by the Depositary, the Custodian or
any of their respective directors, officers, employees, agents and Affiliates,
or (d) out of a breach by the Company or any of its directors, officers,
employees and Affiliates of the terms of the Deposit Agreement, except, in any
such case of (a) through (d) above, to the extent such loss, liability, tax,
charge or expense is due to (i) the negligence or bad faith of the Depositary,
the Custodian or any of their respective directors, officers, employees, agents
and Affiliates, (ii) a breach of the terms of the Deposit Agreement by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, or (iii) any delivery by the Depositary or any
of its directors, officers, employees, agents and Affiliates of any information
relating to the Depositary, furnished in writing to the Company by the
Depositary expressly for use in any offering document related to the Shares
represented by ADSs, or omissions of such information.
The obligations set forth in this Section shall survive the termination of
the Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") in writing of the commencement of any indemnifiable
action or claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such indemnified person's rights to seek indemnification except to the
extent the indemnifying person is materially prejudiced by such failure) and
39
shall consult in good faith with the indemnifying person as to the conduct of
the defense of such action or claim that may give rise to an indemnity
hereunder, which defense shall be reasonable in the circumstances. No
indemnified person shall compromise or settle any action or claim that may give
rise to an indemnity hereunder without the consent of the indemnifying person,
which consent shall not be unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, however, shall not become
effective as to outstanding ADSs until three months after notice thereof is
given to Holders of ADSs. The Depositary shall provide, without charge, a copy
of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
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Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a
case-by-case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder (except under the circumstances contemplated in Section 2.14)
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities hereunder
(except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the ADRs outstanding at any time, the
provisions of the Deposit Agreement and the form of ADR attached hereto and to
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be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that in each case, the notice given to the Holders identifies
a means for Holders and Beneficial Owners to retrieve or receive the text of
such amendment (i.e., upon retrieval from the Commission's, the Depositary's and
the Company's website or upon request from the Depositary). The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the ADSs to be
registered on Form F-6 under the Securities Act or (b) the ADSs to be settled
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADSs, to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement and the ADR, if applicable, as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADS and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and any ADRs at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and any ADRs in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all ADSs then outstanding at least thirty (30)
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder of ADS(s) will, upon surrender
42
of such ADS(s) at the Principal Office of the Depositary, upon the payment of
the charges of the Depositary for the surrender of ADSs referred to in Section
2.7 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such ADS. If any ADSs shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADSs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.7, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for ADSs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADSs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADSs and the
Deposited Securities, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of ADSs, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary under Sections 5.8, 5.9 and 7.6.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. The Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of the Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in the Deposit
43
Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in the Deposit Agreement or in the ADRs should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs issued hereunder shall
be parties to the Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of any ADR evidencing their ADSs by acceptance thereof or
any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Xxxxxxxxx 00,
0000 Xxxxxxxxx, Xxxxxx, Attention: Company Secretary, or to any other address
which the Company may specify in writing to the Depositary. Notices to the
Company from Beneficial Owners of ADSs regarding the exercise of demand rights
referred to in Section 4.6 shall be delivered to the following email address:
xxxx.xxxxx@xxxxxxxxx.xxx.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts Department, or
to any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of the Deposit Agreement, by
44
means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of the Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement and the
ADRs shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in the Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, the
rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and
other Deposited Securities, as such, shall be governed by the laws of Norway
(or, if applicable, such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with the Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Corporation Service Company (the
"Agent") now at 1133 Avenue of the Americas, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx,
00000-0000 as its authorized agent to receive and accept for and on its behalf,
and on behalf of its properties, assets and revenues, service by mail of any and
all legal process, summons, notices and documents that may be served in any
suit, action or proceeding brought against the Company in any federal or state
court as described in the preceding sentence or in the next paragraph of this
Section 7.6. If for any reason the Agent shall cease to be available to act as
such, the Company agrees to designate a new agent in New York on the terms and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of any
45
and all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under the Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of the Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4, the
Deposit Agreement may not be assigned by either the Company or the Depositary.
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Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 Norwegian Law References. Any summary of Norwegian laws and
regulations and of the terms of the Company's Articles of Association set forth
in the Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of the
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of the Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of the Deposit Agreement to
update any such summaries.
Section 7.10 Titles and References.
(a) Deposit Agreement. All references in the Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to
the exhibits, articles, sections, subsections and other subdivisions of
the Deposit Agreement unless expressly provided otherwise. The words "the
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words
of similar import refer to the Deposit Agreement as a whole as in effect
at the relevant time between the Company, the Depositary and the Holders
and Beneficial Owners of ADSs and not to any particular subdivision unless
expressly so limited. Pronouns in masculine, feminine and neuter gender
shall be construed to include any other gender, and words in the singular
form shall be construed to include the plural and vice versa unless the
context otherwise requires. Titles to sections of the Deposit Agreement
are included for convenience only and shall be disregarded in construing
the language contained in the Deposit Agreement. References to "applicable
laws and regulations" shall refer to laws and regulations applicable to
ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
(b) ADRs. All references in any ADR(s) to paragraphs, exhibits,
articles, sections, subsections, and other subdivisions refer to the
paragraphs, exhibits, articles, sections, subsections and other
subdivisions of the ADR(s) in question unless expressly provided
otherwise. The words "the Receipt", "the ADR", "herein", "hereof",
"hereby", "hereunder", and words of similar import used in any ADR refer
to the ADR as a whole and as in effect at the relevant time, and not to
any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any ADR shall be construed to
include any other gender, and words in the singular form shall be
construed to include the plural and vice versa unless the context
otherwise requires. Titles to paragraphs of any ADR are included for
convenience only and shall be disregarded in construing the language
contained in the ADR. References to "applicable laws and regulations"
47
shall refer to laws and regulations applicable to ADRs, ADSs or Deposited
Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
48
IN WITNESS WHEREOF, Petrojarl ASA and CITIBANK, N.A. have duly executed
the Deposit Agreement as of the day and year first above set forth and all
Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
PETROJARL ASA
By:_______________________________
Name:
Title:
CITIBANK, N.A.
By:_______________________________
Name:
Title:
49
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares
(each American Depositary
Share representing one (1)
Fully Paid ordinary share
each par value NOK 2.00)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
PETROJARL ASA
(Incorporated under the laws of the Kingdom of Norway)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, each of Par Value of par value of NOK 2.00, including evidence of rights
to receive such ordinary shares (the "Shares"), of Petrojarl ASA, a corporation
incorporated under the laws of the Kingdom of Norway (the "Company"). As of the
date of the Deposit Agreement (as hereinafter defined), each ADS represents one
(1) Share deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the Deposit Agreement is Den Norske Bank or Nordea Bank
Norge ASA (the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to
amendment as provided in Articles IV and VI of the Deposit Agreement. The
Depositary's Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X.
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(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of [date],
2006 (as amended and supplemented from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of ADSs issued thereunder. The Deposit Agreement sets forth
the rights and obligations of Holders and Beneficial Owners of ADSs 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 Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR has been properly endorsed in blank or is accompanied by proper instruments
of transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
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Delivered to or upon the written order of the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement, of the Company's Articles of Association and of any
applicable laws and the rules of VPS, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Articles of Association
of the Company, of any applicable laws and of the rules of the VPS, and to the
terms and conditions of or governing the Deposited Securities, in each case as
in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs. Notwithstanding
anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
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new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when cancelled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
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instances may be refused, or the registration of transfer of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law or
regulation, any government or governmental body or commission or any securities
exchange upon which the Shares or ADSs are listed, or under any provision of the
Deposit Agreement or this ADR, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject in all cases to paragraph (24). Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated therewith at any time 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, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the ADRs
or ADSs to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable Norwegian law, the rules and requirements of the Oslo
Stock Exchange, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company.
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(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to paragraph (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, officers, employees and Affiliates for, and
hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, (v) the Shares presented for deposit are not, and the ADSs issuable upon
such deposit will not be, Restricted Securities (except as contemplated in
Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or this ADR and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration of Shares on the books of
the Shares Registrar) as the Depositary or the Custodian may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations under the Deposit Agreement. The
Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of any ADR or ADS or the distribution or
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sale of any dividend or other distribution of rights or of the proceeds thereof
or, to the extent not limited by paragraph (24), the delivery of any Deposited
Securities until such proof or other information is filed or such certifications
are executed, or such representations are made or such information and
documentation are provided, in each case to the Depositary's, the Registrar's
and the Company's satisfaction. Any person presenting Shares for deposit, any
Holder and any Beneficial Owner, as applicable, hereby consents to the
Depositary providing the Company or any Norwegian Public Authority (i.e., the
Norwegian Securities Commission), in a timely manner, with copies or originals
if necessary and appropriate of (i) any such proofs of citizenship or residence,
taxpayer status, or exchange control approval which it receives from Holders and
Beneficial Owners, and (ii) any other information (including the number of
Shares beneficially owned) or documents which the Company may reasonably, or any
Norwegian Public Authority may, request and which the Depositary shall request
and receive from any Holder or Beneficial Owner or any person presenting Shares
for deposit or ADSs for cancellation, transfer or withdrawal.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $2.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements);
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $2.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $2.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs; and
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(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $2.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary.
In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(c) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs; and
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, however, shall not become
effective as to outstanding ADSs until three months after notice thereof is
given to such Holders of ADSs. The Depositary will provide, without charge, a
copy of its latest fee schedule to anyone upon request. The charges and expenses
of the Custodian are for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that, in the case of Certificated ADSs, such ADR has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this ADR (that is, the person in whose name this
ADR is registered on the books of the Depositary) as the absolute owner thereof
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for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless such holder is the
Holder of this ADR registered on the books of the Depositary or, in the case of
a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. An ADR bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Exchange
Act. These reports and documents can be inspected and copied at public reference
facilities maintained by the Commission located (as of the date of the Deposit
Agreement) at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and at the Principal
Office of the Depositary. These reports and documents can be retrieved from the
Commission's website (xxx.xxx.xxx) and can be inspected and copied at the public
reference facilities maintained by the Commission located (as of the date of the
Deposit Agreement) at 000 X Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24).
A-9
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: ________________________________ By: ________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-10
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute
promptly the amount thus received (net of (a) applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADSs
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of the deposit from the Custodian, the Depositary shall, subject to
and in accordance with the Deposit Agreement, establish the ADS Record Date and
either (i) the Depositary shall distribute to the Holders as of the ADS Record
Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
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distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares or ADSs, as the case may be, represented by the aggregate of
such fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) taxes and
(b) fees and charges of, and the expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS Record Date according to paragraph (16) and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the case
of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall, to the extent permitted by law, distribute to Holders, on
the basis of the same determination as is made in Norway in respect of the
Shares for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
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documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not timely
request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by the Deposit Agreement or
determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described above,
the Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale or exercise, or (iii) the content of any materials forwarded to
the ADS Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
A-13
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
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(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon
delivery of such ADSs by Holders thereof upon the terms of the Deposit
Agreement. If less than all outstanding Deposited Securities are redeemed, the
ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of the Deposit Agreement
and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADSs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distributions, to give such
voting instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities.
(i) Mailing to Holders. The Company shall send written notice of
any meeting of shareholders to the Depositary prior to the
relevant meeting in accordance with its Articles of
Association and Norwegian law. As soon as practicable after
receipt of such notice from the Company and provided the
Depositary has timely received such notice, the Depositary
shall (i) fix the ADS Record Date in respect of such meeting
in accordance with Paragraph 16, and (ii) distribute, at the
Company's expense and provided no U.S. legal prohibition
exists, to Holders as of the ADS Record Date a notice (the
"Notice") containing (A) the information (or a summary thereof
in a form prepared by the Company) received by the Depositary
in connection with such meeting, including, if applicable, the
agenda for the meeting, and (B) a statement that Holders, in
their capacity as Beneficial Owners or acting on behalf of one
or more named Beneficial Owners, as of the close of business
on the ADS Record Date, will be entitled, subject to
applicable provisions of Norwegian law and the Company's
Articles of Association and to the provisions of the Deposit
Agreement and the Deposited Securities, to instruct the
A-15
Depositary as to the exercise of the voting rights of such
Beneficial Owners, if any, pertaining to the Deposited
Securities represented by their respective ADSs by completing
and returning to the Depositary by the date specified in such
Notice either (i) a request for admission (an "Admission
Request") enabling such Beneficial Owner of ADSs to gain
admission to such meeting in accordance with paragraph (ii) of
this Paragraph 17, or (ii) a proxy and voting instruction card
(a "Voting Instruction Card") pursuant to which a Holder
(acting, as the case may be, as a Beneficial Owner of ADSs or
as proxy on behalf of one or more Beneficial Owners of ADSs
named in a certification of beneficial ownership) may appoint
the Depositary or some other person as proxy with power of
substitution to vote at such meeting in accordance with the
instructions set forth in such Voting Instruction Card and
with paragraph (iii) of this Paragraph 17. If requested by the
Company, the Depositary may request that any Holder
surrendering ADSs for cancellation, at any time immediately
preceding the date of the meetings of shareholders, confirm to
the Depositary and the Company that such person has not and
will not instruct the Depositary to vote the Deposited
Securities evidenced by such Holder's ADSs. Notwithstanding
anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law,
regulations, applicable stock exchange requirements, or the
Company's Articles of Association, in lieu of distribution of
the materials provided to the Depositary in connection with
any meeting of, or solicitation of consents or proxies from,
holders of Deposited Securities, distribute to the Holders a
notice that provides Holders with a means to retrieve or
receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a toll-free
number for requesting copies of the materials).
(ii) Attendance at Meeting in Person. Upon receipt by the
Depositary of (x) a duly completed Admission Request and (y)
such evidence of beneficial ownership as shall be reasonably
satisfactory to the Depositary, the Depositary shall, as
promptly as practicable and in any event not less than two (2)
business days prior to the date of such meeting, (i) notify
the Company in writing of a Beneficial Owner's intention to
attend such shareholders' meeting (in person or by proxy
authorizing a person other than the Depositary, the Custodian
or any of their respective agents to exercise voting rights on
behalf of such Beneficial Owner) to vote, to ask questions and
otherwise to participate in such meeting and (ii) cause the
confirmation of beneficial ownership described in paragraph
(iv) of this Paragraph 17 to be delivered to the Company and
to such Beneficial Owner at the address specified by such
Beneficial Owner in accordance with paragraph (iv) of this
Paragraph 17.
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(iii) Exercise of Voting Rights Through the Depositary. Upon receipt
by the Depositary of a duly completed Voting Instruction Card
by the date set therefor in the Notice (which date shall,
unless the Depositary elects to grant additional time to
return such Voting Instruction Card, be at least ten (10)
business days prior to the date of the relevant shareholders'
meeting) authorizing the Depositary, the Custodian or any of
their respective agents to exercise voting rights on behalf of
Beneficial Owners, the Depositary shall (i) as promptly as
practicable but in any event not less than two (2) business
days prior to such shareholders' meeting, cause a statement
that such Beneficial Owners intend to vote at such meeting,
together with each Beneficial Owner's name and address and the
confirmation of beneficial ownership described in paragraph
(iv) of this Paragraph 17, to be delivered to the Company;
(ii) notify the Company in writing of the Depositary's or the
Custodian's or any of their respective agents' intention to
attend such shareholders' meeting on behalf of such Beneficial
Owners and shall cause confirmation of their authority in that
respect to be delivered to the Company; and (iii) endeavor,
insofar as practicable and permitted under any applicable
provisions of Norwegian law and the Company's Articles of
Association, vote or cause to be voted, either in person at
the meeting or by duly appointing a proxy to appear on its
behalf at the meeting, the relevant Deposited Securities in
accordance with the specific instructions set forth in such
Voting Instruction Card. Voting instructions may be given only
in respect of a number of ADSs representing an integral number
of Deposited Securities. Neither the Depositary nor the
Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote,
or in any way make use of for purposes of establishing a
quorum or otherwise, the Deposited Securities represented by
ADSs, except pursuant to and in accordance with the Voting
Instruction Card received from Holders or as otherwise
contemplated herein. If the Depositary timely receives the
Voting Instruction Card from a Holder which fails to specify
the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary
will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such
Voting Instruction Card. Deposited Securities represented by
ADSs for which no timely Voting Instruction Card or related
confirmation of beneficial ownership received by the
Depositary from the Holder shall not be voted.
(iv) Confirmation of Beneficial Ownership. With respect to each
Voting Instruction Card or Admission Request (each with
evidence of beneficial ownership) received by the Depositary
from a Holder that is a Beneficial Owner or acting on behalf
of a Beneficial Owner wishing to exercise voting rights
pursuant to paragraphs (ii) and (iii) of this Xxxxxxxxx 00,
X-00
together with such evidence of beneficial ownership as the
Depositary may reasonably require, the Depositary shall
promptly deliver to the Company a document in substantially
the form of Exhibit C attached to the Deposit Agreement
confirming that it has received evidence (which may be
delivered to the Depositary via facsimile) that such person is
the Beneficial Owner of such number of Shares held by the
Depositary as correspond to the number of ADSs owned by such
person. A statement that such Beneficial Owner intends to vote
at a shareholders' meeting (as described in paragraphs (ii)
and (iii) of this Paragraph 17), together with such Beneficial
Owner's name and address and the confirmation of beneficial
ownership, must be received by the Company prior to the
expiration of the time limit therefor as set forth in the
Company's notice of such shareholders' meeting and the
Company's Articles of Association (currently not less than two
(2) business days prior to the date of such meeting). In
addition, Beneficial Owners who wish to attend the
shareholders' meeting in person must present the confirmation
of beneficial ownership at the meeting.
(v) Exercise of Voting Rights as Shareholder. Holders and
Beneficial Owners of ADSs who wish to exercise their voting
rights directly as shareholders (rather than as ADS Holders
through the services of the Depositary) will be entitled to do
so, subject to the requirements of Norwegian law and the
Company's Articles of Association, upon timely surrender to
the Depositary of ADSs for cancellation (in accordance with
the terms of Section 2.7 of the Deposit Agreement) and
re-registration of the Deposited Securities in the name of the
Holder or Beneficial Owner so surrendering the ADSs.
(vi) Obligation of Depositary. The Company and the Depositary agree
that in the event the Depositary does not receive any of (i)
the Notice, (ii) the Admission Request or (iii) the Voting
Instruction Card on or prior to the date specified therefore
in this Paragraph 17, the Depositary shall have no obligation
to distribute or forward, as the case may be, such notice or
instruction card or prepare the applicable confirmation of
beneficial ownership.
(vii) Charges. The Depositary will not charge the Holders for the
voting services described in this Paragraph 17.
(viii) Amendment of Voting Procedures. There can be no assurance
that any amendments, modifications or additional voting
procedures upon which the Depositary and the Company may agree
pursuant to Section 6.1 of the Deposit Agreement will not
limit the practical ability of Beneficial Owners of ADSs to
A-18
exercise voting rights in respect of the foregoing. The
Depositary and the Company agree to use reasonable efforts to
make and maintain arrangements (in addition to or in
substitution of the arrangements described in this Paragraph
17) to enable Beneficial Owners to vote the Deposited
Securities underlying their ADSs, except as such efforts may
be limited by the right of the Company's shareholders to amend
its Articles of Association and applicable law.
(ix) General. Notwithstanding anything else contained in the
Deposit Agreement or any ADR, the Depositary shall not have
any obligation to take any action with respect to any meeting,
or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would
violate U.S. laws. There can be no assurance that Holders
generally or any Holder in particular will receive the Notice
described above with sufficient time to enable the Holder to
deliver the Admission Request, the Voting Instruction Card and
related confirmation of beneficial ownership to the Depositary
in a timely manner. According to Norwegian law as in effect as
of the date of the Deposit Agreement, only owners of Shares
that are registered in VPS have an unconditional right to
vote, provided that the procedure for voting set out in the
Articles of Association of the Company is followed. As a
result, there can be no assurance that a Beneficial Owner
attending a general meeting of the Company in person or by
proxy through the Depositary will not be prohibited from
exercising voting rights.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger,
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 the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. In giving
effect to such change, split-up, cancellation, consolidation or other
reclassification of Deposited Securities, recapitalization, reorganization,
merger, consolidation or sale of assets, the Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of satisfactory documentation contemplated by
the Deposit Agreement, (i) issue and deliver additional ADSs as in the case of a
stock dividend on the Shares, (ii) amend the Deposit Agreement and the
applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form
F-6 as filed with the Commission in respect of the ADSs, (iv) call for the
surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such
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other actions as are appropriate to reflect the transaction with respect to the
ADSs. Notwithstanding the foregoing, in the event that any security so received
may not be lawfully distributed to some or all Holders, the Depositary may, with
the Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Holders in general or
any Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, Norway or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of possible criminal or
civil penalties or restraint, or by reason of any provision, present or future,
of the Articles of Association of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
A-20
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of the Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice of its
appointment to such Holders. Any corporation into or with which the Depositary
may be merged or consolidated shall be the successor of the Depositary without
the execution or filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
A-21
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADRs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that in each case, the notice given to the Holders identifies
a means for Holders and Beneficial Owners to retrieve or receive the text of
such amendment (i.e., upon retrieval from the Commission's, the Depositary's or
the Company's website or upon request from the Depositary). The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the ADSs to be
registered on Form F-6 under the Securities Act or (b) the ADSs to be settled
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS(s), to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement and this ADR as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such ADS and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require an amendment of, or supplement to, the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and this ADR at any time in accordance with
such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Holders or within any other period of
time as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder of ADS(s) will, upon
surrender of such ADS(s) at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of ADSs referred to
in paragraph (2) and in the Deposit Agreement and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such ADS. If any ADSs shall remain
A-22
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADSs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for ADSs surrendered to the Depositary
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the ADSs and the Deposited Securities, except to account for
such net proceeds and other cash (after deducting, or charging, as the case may
be, in each case, the charges of the Depositary for the surrender of ADSs, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
A-23
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
(26) Demand Rights in respect of Shareholders' Meetings.
(i) Demand Rights by Shareholders in respect of Shareholders'
Meetings. The Company has informed the Depositary that under Norwegian law, as
in effect as of the date of the Deposit Agreement, holders of Shares have the
right to demand that the Company (i) call a general extraordinary shareholders'
meeting to discuss or resolve specific matters ("Meeting Call Right(s)"),
provided that, the Meeting Call Right is exercised (y) in writing, and (z) by
holders of at least five percent (5%) of the issued and outstanding Shares, as
of the date of exercise of the applicable Meeting Call Right, and (ii) place an
item on the agenda ("Agenda Proposal Right(s)") of any validly called general
ordinary or extraordinary shareholders' meeting, including a general
extraordinary shareholders' meeting to be called as a result of the valid
exercise of a Meeting Call Right, provided that, the demand for exercise of the
Agenda Proposal Right is (x) presented in time for the Company to include the
matter in the agenda for the meeting, or if the notice for the meeting has
already been issued, at least two weeks before the date of the meeting, (y) made
in writing by a shareholder, and (z) specific in nature and referring to issues
for discussion in addition to the specific matters initially included or
requested to be included on the agenda of the applicable general shareholders'
meeting. Norwegian law and the Company's Articles of Association may be amended
A-24
from time to time, including by means of amendments that impose additional
requirements to exercise the Meeting Call Rights and the Agenda Proposal Rights.
Neither the Company nor the Depositary have any obligation under the Deposit
Agreement to provide any notice of any such changes to the Holders or Beneficial
Owners.
(ii) Demand Rights by Beneficial Owners of ADSs in respect of
Shareholders' Meetings. Beneficial Owners of Shares owned in the form of ADSs
will have Meeting Call Rights and Agenda Proposal Rights, provided that, the
Beneficial Owners of ADSs satisfy the conditions specified in Paragraph 26(i)
above, except that (i) the Beneficial Owners of ADSs shall deliver any documents
contemplated in Paragraph 26(i) above to the Company via email at the email
address specified in Section 7.5 of the Deposit Agreement and (ii) the
Beneficial Owner shall be required to deliver to the Company evidence reasonably
satisfactory to the Company of such Beneficial Owner's status or beneficial
ownership of the requisite number of Shares (including Shares owned in the form
of ADSs) in such email. There can be no assurance that Beneficial Owners in
general, or any Beneficial Owner in particular, will receive notice of the
exercise of Meeting Call Rights, as described above, with sufficient time to
enable the Beneficial Owner to take the actions necessary to validly and timely
exercise Agenda Proposal Rights with respect to any general extraordinary
shareholders' meeting.
(27) Disclosure of Beneficial Ownership. The Company has informed the
Depositary that, as of the date of the Deposit Agreement, any person, entity or
group acting in concert that acquires or disposes of Shares or ADS resulting in
its beneficial ownership, directly or indirectly, in the aggregate, reaching,
exceeding or falling below the respective thresholds of 1/20, 1/10, 1/5, 1/3,
1/2, 2/3 or 9/10, or such other percentage as may be required to be disclosed
from time to time under any law, regulation, or practice of Norway, of the share
capital of the Company, shall promptly send a written notification to the
Company at the address set forth in Section 7.5 of the Deposit Agreement, by
registered or certified mail, regarding such beneficial ownership.
A-25
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:________________________________
By:
Title:
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without alteration
or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity
and proper evidence of authority to
act in such capacity, if not on file
with the Depositary, must be
forwarded with this ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of
ADRs must be guaranteed by a member
of a Medallion Signature Program
approved by the Securities Transfer
Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' ordinary of Petrojarl ASA and as such do not
entitle the holders thereof to the same per-share entitlement as other [type of
shares] Shares (which are 'full entitlement' ordinary Shares) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the ordinary
Shares represented by such ADSs become 'full entitlement' ordinary Shares."]
A-26
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
--------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
--------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
--------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
--------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held.
other free stock
distributions, or
(ii) exercise of rights to
purchase additional ADSs.
--------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
--------------------------------------------------------------------------------------------------------------
B-1
--------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $2.00 per 100 ADSs (or Person holding ADSs on applicable
fraction thereof) held. record date(s) established by the
Depositary.
--------------------------------------------------------------------------------------------------------------
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs; and
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency.
B-2
EXHIBIT C
FORM OF CONFIRMATION OF BENEFICIAL OWNERSHIP
(To Be Used for Voting the Underlying Shares)
In accordance with Section 4.10 of the Deposit Agreement, dated as of
________, 2006, by and among Petrojarl ASA (the "Company"), the undersigned, as
depositary, and the Holders and Beneficial Owners of American Depositary Shares
issued thereunder, in order to enable the persons named below to vote the Shares
of the Company deposited with the undersigned in its capacity as the depositary
of such Shares, the undersigned hereby confirms that, as of the date hereof, (A)
it has received evidence by the respective American Depositary Share Holder of
record, in form and substance reasonably satisfactory to it, to the effect that
each of the persons identified below is the beneficial owner of the number of
American Depositary Shares representing the Shares of the Company, nominal value
NOK 2.00 each, set out opposite their respective name and address and (B) that
the underlying Shares of the Company are registered with the Norwegian VPS
system in the undersigned's VPS account as an approved custodian under Norwegian
Law.
The undersigned assumes no obligation to update or supplement this
confirmation to reflect any subsequent changes in the information contained
herein until specifically requested in writing to do so by a Beneficial Owner or
by the Company.
CITIBANK, N.A., as ADR Depositary
Dated:________________ By:____________________________
Name:
Title:
C-1
LIST OF BENEFICIAL OWNERS
Name Address Number of Shares
---- ------- ----------------
C-2
