POST-EFFECTIVE AMENDMENT No. 2 TO DEPOSIT AGREEMENT
POST-EFFECTIVE AMENDMENT No. 2 (the "Amendment") dated as of March 30, 2004 to
the Deposit Agreement dated as of February 27, 2002 as amended by a
Post-Effective Amendment No. 1 dated April 4, 2002 (the "Deposit Agreement") by
and among Aktieselskabet Dampskibsselskabet Torm (the "Company"), Deutsche Bank
Trust Company Americas (formerly Bankers Trust Company), an indirect wholly
owned subsidiary of Deutsche Bank AG, as depositary (the "Depositary") and all
Owners and Holders from time to time of American Depositary Receipts issued
thereunder.
WITNESSETH
WHEREAS, the Company and the Depositary entered onto the Depositary Agreement
for the purposes set forth therein;
WHEREAS, the Company desires to provide for the deposit of Shares of the Company
with the Depositary or the Custodian as agent for the Depositary and for the
execution and delivery of Receipts evidencing American Depositary Shares
representing the Shares so deposited;
WHEREAS, the Company and the Depositary desire to amend the terms of the Deposit
Agreement and form of Receipts in accordance with Section 6.01 of the Depositary
Agreement;
NOW, THEREFORE, the Company and the Depositary hereby amend the Receipts and the
Deposit Agreement, effective as provided in Section 5.01 hereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions Generally Unless otherwise defined in this Amendment,
capitalised terms which are used but not defined herein have the meanings set
forth in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
Section 2.1. All references in the Deposit Agreement to "Bankers Trust Company"
shall be references to "Deutsche Bank Trust Company Americas (formerly Bankers
Trust Company)".
Section 2.2. All references in the Deposit Agreement to "0 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, U.S.A." shall be references to "60 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, U.S.A.".
Section 2.3. The second paragraph of Section 4.9 of the Deposit Agreement is
hereby deleted in its entirety and replaced with the following new paragraph in
lieu thereof:
"Upon the written request of a Registered Holder of a Receipt on the ADS
Record Date, received on or before the ADS Record Date, and upon the
receipt of an opinion or opinions provided at the expense of the Company to
the effect that the voting arrangement is valid and binding on Holders
under Danish law and under the provisions of this Deposit Agreement, the
Company's Articles of Association and the provisions of or governing the
Deposited Securities, the Depositary shall endeavour, insofar as
practicable and permitted under applicable law and under the provisions of
this Deposit Agreement, the Company's Articles of Association and the
provisions of or governing the Deposited Securities, to vote or cause to be
voted the Shares and/or other Deposited Securities (in person or by proxy)
represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions."
Section 2.4. The words "and/or other Deposited Securities" shall be inserted
after "Shares" in the first line of the third paragraph of Section 4.9 of the
Deposit Agreement and the following shall be added at the end of such paragraph:
"and pending receipt of such an opinion, the first sentence of the final
paragraph of this Section 4.9 shall apply to such Shares and/or other
Deposited Securities."
Section 2.5. The final paragraph of Section 4.9 of the Deposit Agreement is
hereby deleted in its entirety and replaced with the following new paragraph in
lieu thereof:
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"If no instructions are received by the Depositary from any Holder with
respect to any of the Shares and/or other Deposited Securities represented
by the American Depository Shares evidenced by such Holder's Receipt on or
before the date established by the Depository for such purpose, such Shares
and/or other Deposited Securities shall not be voted. The Depositary shall
not be liable for any failure to carry out any instructions to vote any of
the Shares and/or other Deposited Securities. Holders will have the right
to attend shareholder meetings in accordance with the rules established by
the Company, but will only have those voting rights with respect to the
Shares and/or other Deposited Securities as are set out in this Section
4.9. For the avoidance of doubt, Holders will not be entitled to vote in
person at any such shareholder meeting."
ARTICLE III
AMENDMENTS TO FORM OF RECEIPT
Section 3.1. All references in the Form of Receipt to "Bankers Trust Company"
shall be references to "Deutsche Bank Trust Company Americas (formerly Bankers
Trust Company)".
Section 3.2. All references in the Form of Receipt to "0 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, U.S.A." shall be references to "60 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, U.S.A.".
Section 3.3. The second paragraph of paragraph (15) of the Form of Receipt is
hereby deleted in its entirety and replaced with the following new paragraph in
lieu thereof:
"Upon the written request of a Registered Holder of a Receipt on the ADS
Record Date, received on or before the ADS Record Date, and upon the
receipt of an opinion or opinions provided at the expense of the Company to
the effect that the voting arrangement is valid and binding on Holders
under Danish law and under the provisions of the Deposit Agreement, the
Company's Articles of Association and the provisions of or governing the
Deposited Securities, the Depositary shall endeavour, insofar as
practicable and permitted under applicable law and under the provisions of
the Deposit Agreement, the Company's Articles of Association and the
provisions of or governing the Deposited Securities, to vote or cause to be
voted the Shares and/or other Deposited
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Securities (in person or by proxy) represented by American Depositary
Shares evidenced by such Receipt in accordance with such voting
instructions."
Section 3.4. The words "and/or other Deposited Securities" shall be inserted
after "Shares" in the first line of the third paragraph of paragraph 15 of the
Form of Receipt and the following shall be added at the end of the such
paragraph:
"and pending receipt of such an opinion, the first sentence of the final
paragraph of Section 4.9 of the Deposit Agreement shall apply to such
Shares and/or other Deposited Securities."
Section 3.5. The final paragraph of paragraph (15) of the Form of Receipt is
hereby deleted in its entirety and replaced with the following new paragraph in
lieu thereof:
"If no instructions are received by the Depositary from any Holder with
respect to any of the Shares and/or other Deposited Securities represented
by the American Depository Shares evidenced by such Holder's Receipt on or
before the date established by the Depository for such purpose, such Shares
and/or other Deposited Securities shall not be voted. The Depositary shall
not be liable for any failure to carry out any instructions to vote any of
the Shares and/or other Deposited Securities. Holders will have the right
to attend shareholder meetings in accordance with the rules established by
the Company, but will only have those voting rights with respect to the
Shares and/or other Deposited Securities as are set out in Section 4.9 of
the Deposit Agreement. For the avoidance of doubt, Holders will not be
entitled to vote in person at any such shareholder meeting."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties The Company and the Depositary
mutually represented and warrant to each other and to the Holders, that:
(a) this Amendment, when executed and delivered by the Company and the
Depositary, and the Deposit Agreement and all other documentation executed
and delivered by the Company and the Depositary in connection therewith,
will be and have been,
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respectively, duly and validly authorised, executed and delivered by the
Company and the Depositary, and constitute the legal, valid and binding
obligations of the Company and the Depositary, enforceable against the
Company and the Depositary in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and general equity principles; and
(b) all of the information provided by the Company and the Depositary to each
other in connection with this Amendment is true, accurate and complete.
ARTICLE V
MISCELLANEOUS
Section 5.01. Effective Date This Amendment is dated as of the date set forth
above and shall be effective as of the time of the effectiveness of the
Post-Effective Amendment No. 2 to the Registration Statement on Form F-6 to be
filed by the Depositary in connection with this Post-Effective Amendment No. 2
to Deposit Agreement (the "Effective Date"). From and after the Effective Date,
all references in the Deposit Agreement and the Form of Receipt shall be deemed
to be references to the Deposit Agreement and Form of Receipt as modified
hereby.
Section 5.02. Outstanding Receipts Receipts issued prior or subsequent to the
date hereof, which do not reflect the changes to the Receipts effected hereby,
do not need to be called in for exchange and may remain outstanding until such
time as the Holders thereof choose to surrender them for any reason under the
Deposit Agreement. The Depositary is authorised and directed to take any and all
actions deemed necessary to effect the foregoing.
Section 5.03. Governing Law THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
Section 5.04. Counterparts This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to
be executed by representatives hereunto duly authorised as of the date set forth
above.
AKTIESELSKABET DAMPSKIBSSELSKABET TORM
By: /s/ Niels Xxxx Xxxxxxx
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Name: Niels Xxxx Xxxxxxx
Title: Chairman of the Board of Directors
By: /s/ Christian Frigast
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Name: Christian Frigast
Title: Deputy Chairman
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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