Exhibit (a)(i)
EXECUTION VERSION
TELEFONAKTIEBOLAGET LM ERICSSON
AND
CITIBANK, N.A.,
AS DEPOSITARY,
AND
ALL HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
ISSUED AND OUTSTANDING UNDER THE TERMS OF
THE AMENDED AND RESTATED DEPOSIT AGREEMENT,
DATED AS OF SEPTEMBER 26, 1995, AS AMENDED BY
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT,
DATED AS OF FEBRUARY 10, 1997, AND AS FURTHER AMENDED BY
AMENDMENT NO. 2 TO AMENDED AND RESTATED DEPOSIT AGREEMENT,
DATED AS OF OCTOBER 23, 2002
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Amendment No. 3
to
Amended and Restated Deposit Agreement
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Dated as of [Date], 2009
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AMENDMENT NO. 3 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 3 TO AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of
[Date], 2009 (the "Amendment"), by and among (i) TELEFONAKTIEBOLAGET LM ERICSSON
, a company organized and existing under the laws of Sweden (the "Company"),
(ii) Citibank, N.A., a national banking association organized under the laws of
the United States of America (the "Depositary"), and (iii) all Holders from time
to time of American Depositary Receipts issued and outstanding under the Amended
and Restated Deposit Agreement, dated as of September 26, 1995, as amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as of February
10, 1997, and as further amended by Amendment No. 2 to Amended and Restated
Deposit Agreement, dated as of October 23, 2002.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Amended
and Restated Deposit Agreement dated as of September 26, 1995, as amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as of February
10, 1997, and as further amended by Amendment No. 2 to Amended and Restated
Deposit Agreement, dated as of October 23, 2002 (as amended, the "Amended and
Restated Deposit Agreement"), for the creation of American Depositary Shares
("ADSs") representing the Shares (as defined in the Amended and Restated Deposit
Agreement) so deposited and for the execution and delivery of American
Depositary Receipts ("ADRs") in respect of the ADSs; and
WHEREAS, the Company and the Depositary desire to (i) amend the Amended
and Restated Deposit Agreement, the ADRs currently issued and outstanding and
the form of ADR annexed to the Amended and Restated Deposit Agreement as Exhibit
A thereto to reflect the Direct Registration System (the "DRS") eligibility of
the ADSs, (ii) amend the Amended and Restated Deposit Agreement, the ADRs
currently issued and outstanding and the form of ADR annexed to the Amended and
Restated Deposit Agreement as Exhibit A thereto so that Holders of ADSs may
instruct the Depositary to block the ADSs in the name of the Holder and vote the
Shares underlying the such ADSs (thereby eliminating the need to deliver ADRs to
the Depositary to effectuate blocking of the applicable ADSs), (iii) amend the
Amended and Restated Deposit Agreement, the ADRs currently issued and
outstanding and the form of ADR annexed to the Amended and Restated Deposit
Agreement as Exhibit A thereto to shorten the required advance notice period
applicable to Holders of ADRs for amendments to the Amended and Restated Deposit
Agreement from three (3) months to one (1) month, and (iv) amend the Amended and
Restated Deposit Agreement, the ADRs currently issued and outstanding and the
form of ADR annexed to the Amended and Restated Deposit Agreement as Exhibit A
thereto to allow the Depositary to sell Deposited Securities held under the
Amended and Restated Deposit Agreement after the expiration of six (6) months
(rather than one (1) year) from the date of termination of the Amended and
Restated Deposit Agreement, and give notice thereof to all Holders of ADSs; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Amended and Restated Deposit Agreement, the ADRs
currently outstanding, and the form of ADR annexed as Exhibit A to the Amended
and Restated Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Amended and Restated Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
later to occur of (i) the expiration of 90 days after notice of this Amendment
has been given to Holders of outstanding ADRs or (ii) the date upon which the
Commission declares effective the applicable Post-Effective Amendment No. 2 to
F-6 Registration Statement pursuant to which a form of this Amendment has been
filed with the Commission ("F-6 Effective Date"). After the F-6 Effective Date,
the Amended and Restated Deposit Agreement shall be referred to as the Amended
and Restated Deposit Agreement by and among the Company, the Depositary and all
Holders and Beneficial Owners of American Depositary Shares issued thereunder
(without reference to the need for ADSs to be evidenced by ADRs).
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ARTICLE II
AMENDMENTS TO AMENDED AND RESTATED DEPOSIT AGREEMENT
SECTION 2.01. Amended and Restated Deposit Agreement. All references in
the Amended and Restated Deposit Agreement to the terms "Deposit Agreement"
shall, as of the Effective Date, refer to the Amended and Restated Deposit
Agreement, as amended by this Amendment and as further amended and supplemented
from time to time after the F-6 Effective Date in accordance with the terms of
the Amended and Restated Deposit Agreement.
SECTION 2.02. Amendments Binding on all Holders and Beneficial Owners.
(a) From and after the F-6 Effective Date, the amendments to the Amended
and Restated Deposit Agreement effected hereby which relate to the Direct
Registration System and blocking of ADSs shall be binding on all Holders
of ADSs issued and outstanding as of the F-6 Effective Date and on all
Holders and Beneficial Owners of ADSs issued after the F-6 Effective Date.
From and after the Effective Date, the amendments to the Amended and
Restated Deposit Agreement effected hereby which relate to the shortening
of the required advance notice period for amendments to the Amended and
Restated Deposit Agreement and the sale by the Depositary of Deposited
Securities in connection with the termination of the Amended and Restated
Deposit Agreement shall be binding on all Holders of ADSs issued and
outstanding as of the Effective Date. Notwithstanding anything contained
herein, in the Amended and Restated Deposit Agreement or in any ADR, from
and after the F-6 Effective Date, any reference in the Amended and
Restated Deposit Agreement, any ADR or the form of ADR attached to the
Amended and Restated Deposit Agreement to Holders of ADRs, Receipts or
American Depositary Receipts shall include, unless a reasonable
interpretation of the context otherwise mandates, Holders of ADSs.
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(b) From and after the F-6 Effective Date, the Amended and Restated
Deposit Agreement is amended by adding the following as a new Section
1.16:
"Section 1.16 "Beneficial Owner(s)" shall mean, as to any ADS, any
person or entity have a beneficial interest deriving form the
ownership of such ADSs. 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 Holders of 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 2.03. Change in par/nominal value of the Shares. From and after
the F-6 Effective Date, the Amended and Restated Deposit Agreement is amended by
deleting Section 1.05 in its entirety and inserting the following in its stead:
"Section 1.05. The terms "Shares" shall mean B Shares in registered
form of the Company, without nominal value, heretofore validly
issued and outstanding and fully paid, non-assessable and free of
any pre-emption rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid,
non-assessable and free of any pre-emption rights of the holders of
outstanding Shares or interim certificates representing such B
Shares."
SECTION 2.04. Direct Registration System. In order to reflect the DRS
eligibility of the ADSs, the Amended and Restated Deposit Agreement is hereby
amended as of the F-6 Effective Date by:
(a) deleting Section 1.08 in its entirety and inserting the following in
its stead:
"Section 1.08 "American Depositary Share(s)" and "ADS(s)" shall mean
the rights and interests in the Deposited Securities (as defined
above) granted to the Holders pursuant to the terms and conditions
of the Deposit Agreement and, if issued as Certificated ADS(s) (as
hereinafter defined), the American Depositary Receipt(s) issued
hereunder to evidence such ADSs. ADS(s) may be issued under the
terms of the Deposit Agreement in the form of (a) Certificated
ADS(s), in which case the ADS(s) are to be evidenced by ADR(s), or
(b) Uncertificated ADS(s) (as hereinafter defined), in which case
the ADS(s) are not to be evidenced by ADR(s) but are reflected on
the direct registration system maintained by the Depositary for such
purposes under the terms of Section 2.10. 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 4.03 or a change in Deposited
Securities referred to in Section 4.08 with respect to which
additional ADSs are not issued, and thereafter each ADS shall
represent the Shares or Deposited Securities determined in
accordance with the terms of such Sections."
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(b) adding the following as a new Section 1.17:
"Section 1.17 "Certificated ADS(s)" shall have the meaning set forth
in Section 2.10."
(c) adding the following to the end of Section 1.09 thereof:
"Any reference to Holders of ADR(s), Receipts or ADS(s) in this
Deposit Agreement shall, in the context of the Uncertificated ADSs,
refer to the person(s) in whose name the Uncertificated ADSs are
registered on the books of the Depositary maintained for such
purpose."
(d) deleting Section 1.07 in its entirety and inserting the following in
its stead:
"Section 1.07 "Receipt(s)", "American Depositary Receipt(s)" and
"ADR(s)" shall mean any series of the certificate(s) issued by the
Depositary to evidence the American Depositary Shares issued under
the terms of this Deposit Agreement in the form of Certificated
ADS(s), as such Receipts may be amended from time to time in
accordance with the provisions of this Deposit Agreement. A Receipt
may evidence any number of ADSs and may, in the case of ADSs held
through a central depository such as DTC, be in the form of a
"Balance Certificate.""
(e) adding the following as a new Section 1.18:
"Section 1.18 "Uncertificated ADS(s)" shall have the meaning set
forth in Section 2.10."
(f) deleting the first sentence of the first paragraph of Section 2.01
thereof in its entirety and inserting the following in its stead:
"Certificated ADSs shall be evidenced by definitive Receipts which
shall be engraved, printed, lithographed or produced in such other
manner as may be agreed upon by the Company and the Depositary and
in any event shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions,
modification and omissions, as hereinafter provided."
(g) deleting the second and third sentence of the first paragraph of
Section 2.01 in its entirety and inserting the following in its stead:
"Receipts 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 Receipt 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 Receipt shall have been so
dated, signed and countersigned and registered."
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(h) deleting the third paragraph Section 2.01 in its entirety and
inserting the following in its stead:
"Subject to the limitations contained herein and in the Receipt,
title to a Receipt (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 Receipt has been properly endorsed or is
accompanied by properly executed 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 or be subject
to any liability under the Deposit Agreement to any holder of a
Receipt or any beneficial owners unless such holder is registered as
the Holder of such Receipt on the books of the Depositary or in the
case of a Beneficial Owner, such Beneficial Owner or Beneficial
Owner's representative is registered as the Holder on the books of
the Depositary."
(i) adding the following as a new Section 2.10:
"Section 2.10 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 (a) 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 (b) 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 written 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
(w) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary
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then has written notice, (x) the terms of the Deposit Agreement and
the rules and regulations that the Depositary may establish for such
purposes hereunder, (y) applicable law, and (z) payment of the
Depositary fees and expenses applicable to such exchange of
Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs
shall in all material respects be identical to Certificated ADS(s)
of the same type and class, except that (1) no ADR(s) shall be, or
shall need to be, issued to evidence Uncertificated ADS(s), (2)
Uncertificated ADS(s) shall, subject to the terms of the Deposit
Agreement, be transferable upon the same terms and conditions as
uncertificated securities under New York law, (3) 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, (4) 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 such rules and
regulations do not conflict with the terms of the Deposit Agreement
and applicable law, (5) 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, (6) 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 (7) 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 6.02 of the Deposit
Agreement. When issuing ADSs under the terms of this Deposit
Agreement, including, without limitation, issuances pursuant to
Sections 2.02, 4.02, 4.03, and 4.04, 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 this Deposit Agreement shall apply to Uncertificated
ADSs to the same extent as to Certificated ADSs, except as
contemplated by this Section 2.10. 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 2.10. Any references in the Deposit Agreement, the
form of ADR attached as an Exhibit to 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 2.10 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding
under the terms of this Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with
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respect to any Uncertificated ADSs, any conflict arises between (I)
the terms of this Deposit Agreement (other than this Section 2.10)
and (II) the terms of this Section 2.10, the terms and conditions
set forth in this Section 2.10 shall be controlling and shall govern
the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs."
SECTION 2.05. Voting of Deposited Securities. The Amended and Restated
Deposit Agreement is hereby amended as of the F-6 Effective Date by deleting
Section 4.07 in its entirety and inserting the following in its stead:
"Section 4.07. Voting of Deposited Securities. Upon receipt of
notice from the Company of any meeting, or solicitation of consent
or proxy, of holders of Shares or other Deposited Securities, the
Depositary shall, as soon as practicable thereafter, establish a
record date applicable to Holders of American Depositary Shares
entitled to instruct the Depositary to vote the Shares or other
Deposited Securities represented by such Holder's ADSs and
distribute to the Holders of American Depositary Shares a notice
which shall contain (a) such information as is contained in such
notice of meeting, solicitation of consent or proxy, and (b) a
statement that the Holders of American Depositary Shares at the
close of business in New York on the specified record date will be
entitled, subject to any applicable provisions of Swedish law, the
Articles of Association of the Company and the Deposit Agreement, to
instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary
Shares. Upon the instruction of a Holder of American Depositary
Shares as of such record date, received on or before the date
established by the Depositary for such purpose, to block the
Holder's American Depositary Shares in the name of the Holder (for
the period specified for such purpose by the Depositary in the
applicable notice to Holders) and to vote the Shares or other
Deposited Securities represented thereby, the Depositary shall
endeavor in so far as practicable and as permitted under Swedish
law, the Company's Articles of Association, and the terms of the
Deposit Agreement, to vote or cause to be voted the amount of Shares
or other Deposited Securities represented by such Holder's American
Depositary Shares in accordance with the instructions from the
applicable Holder. The Depositary agrees not to exercise any voting
rights or powers under any Shares or other Deposited Securities
represented by the American Depositary Shares unless it has received
such blocking and voting instructions from the Holder of the
American Depositary Shares, and then only in accordance with such
instructions.
Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law or
regulations, or by the requirements of the stock exchange on which
the ADSs are listed, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or
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solicitation of consents or proxies from, holders of Deposited
Securities, distribute to the Holders a notice that provides Holders
with, or otherwise publicize to Holders, instructions on how to
retrieve such materials or receive such materials upon request
(i.e., by reference to a website containing the materials for
retrieval or a contact for requesting copies of the materials).
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
blocking and voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives
blocking and voting instructions from a Holder that 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 instructions. Deposited
Securities represented by ADSs for which no timely blocking and
voting instructions are received by the Depositary from the Holder
shall not be voted.
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. The Company agrees to take any and
all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S.
counsel addressing any actions requested to be taken if so requested
by the Depositary.
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 return blocking and voting instructions
to the Depositary in a timely manner."
SECTION 2.06. Notice of Amendment. The Amended and Restated Deposit
Agreement is hereby amended as of the F-6 Effective Date by deleting the second
sentence of Section 6.01 in its entirety and inserting the following in its
stead:
"Any amendment which shall impose or increase any fees or charges
(other than the fees of the Depositary for the issuance and delivery
of ADSs and taxes and other governmental charges), or which shall
otherwise prejudice any substantial existing right of Holders of
ADSs, shall, however, not become effective as to outstanding ADSs
until the expiration of one (1) month after notice of such amendment
shall have been given to the Holders of outstanding ADRs."
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SECTION 2.07. Sale of Deposited Securities in Termination. The Amended and
Restated Deposit Agreement is hereby amended as of the F-6 Effective Date by
deleting the fourth sentence of Section 6.02 in its entirety and inserting the
following in its stead:
"At any time after the expiration of six (6) months from the date of
termination, the Depositary may sell the Deposited Securities then
held hereunder and may thereafter hold the net proceeds of any such
sale, together with any other cash then held by it hereunder,
without liability for interest, for the pro rata benefit of the
holders of ADSs which have not theretofore been surrendered."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. ADR Amendment. The form of ADR attached as Exhibit A to the
Amended and Restated Deposit Agreement and each of the ADRs issued and
outstanding under the terms of the Amended and Restated Deposit Agreement is
hereby amended as of the F-6 Effective Date by:
(a) deleting the introductory article thereof in its entirety and
inserting the following in its stead:
"CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as
Depositary (herein called the Depositary), hereby certifies that
________ is the owner of ________ American Depositary Shares,
representing deposited B shares(such B shares are hereinafter
referred to as Shares), of TELEFONAKTIEBOLAGET LM ERICSSON, a public
company incorporated under the laws of Sweden (herein called the
Company). At the date hereof, each American Depositary Share
represents one (1) Share (or evidence of rights to receive one
Share) deposited under the Deposit Agreement at the principal
Stockholm office either of Skandinaviska Enskilda Banken or of
Svenska Handelsbanken (herein called the Custodian or, together, the
Custodians). The address of the Depositary's principal executive
office is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000."
(b) deleting the first sentence of paragraph (1) thereof in its entirety
and inserting the following in its stead:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("Receipts" or "ADRs"), all issued and to be
issued upon the terms and conditions set forth in the Amended and
Restated Deposit Agreement dated as of September 26, 1995, as
amended by Amendment No. 1 to Amended and Restated Deposit
Agreement, dated as of February 10, 1997, as amended by Amendment
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No. 2 to Amended and Restated Deposit Agreement, dated as of October
23, 2002, and as further amended by Amendment No. 3 to Amended and
Restated Deposit Agreement, dated as of [Date], 2009 (as so 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, each of whom by
accepting an ADS becomes bound by all the terms and provisions
thereof."
(c) deleting paragraph (7) thereof in its entirety and inserting the
following in its stead:
"(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same
consents and agrees, that title to this Receipt (and to each
Certificated ADSs 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, the
Receipt has been properly endorsed or is accompanied by properly
executed 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 or be subject to any liability under the
Deposit Agreement to any holder of a Receipt or any beneficial
owners unless such holder is registered as the Holder of such
Receipt on the books of the Depositary or in the case of a
Beneficial Owner, such Beneficial Owner or Beneficial Owner's
representative is registered as the Holder on the books of the
Depositary."
(d) deleting paragraph (15) in its entirety and inserting the following in
its stead:
"(15) Voting of Deposited Securities. Upon receipt of notice from
the Company of any meeting, or solicitation of consent or proxy, of
holders of Shares or other Deposited Securities, the Depositary
shall, as soon as practicable thereafter, establish a record date
applicable to Holders of American Depositary Shares entitled to
instruct the Depositary to vote the Shares or other Deposited
Securities represented by such Holder's ADSs and distribute to the
Holders of American Depositary Shares a notice which shall contain
(a) such information as is contained in such notice of meeting,
solicitation of consent or proxy, and (b) a statement that the
Holders of American Depositary Shares at the close of business in
New York on the specified record date will be entitled, subject to
any applicable provisions of Swedish law, the Articles of
Association of the Company and the Deposit Agreement, to instruct
the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares. Upon the
instruction of a Holder of American Depositary Shares as of such
record date, received on or before the date established by the
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Depositary for such purpose, to block the Holder's American
Depositary Shares in the name of the Holder (for the period
specified for such purpose by the Depositary in the applicable
notice to Holders) and to vote the Shares or other Deposited
Securities represented thereby, the Depositary shall endeavor in so
far as practicable and as permitted under Swedish law, the Company's
Articles of Association and the terms of the Deposit Agreement, to
vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such Holder's American Depositary Shares
in accordance with the instructions from the applicable Holder. The
Depositary agrees not to exercise any voting rights or powers under
any Shares or other Deposited Securities represented by the American
Depositary Shares unless it has received such blocking and voting
instructions from the Holder of the American Depositary Shares, and
then only in accordance with such instructions.
Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law or
regulations, or by the requirements of the stock exchange on which
the ADSs are listed, 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, or otherwise publicize to Holders, instructions on how to
retrieve such materials or receive such materials upon request
(i.e., by reference to a website containing the materials for
retrieval or a contact for requesting copies of the materials).
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
blocking and voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives
blocking and voting instructions from a Holder that 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 instructions. Deposited
Securities represented by ADSs for which no timely blocking and
voting instructions are received by the Depositary from the Holder
shall not be voted.
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. The Company agrees to take any and
all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S.
counsel addressing any actions requested to be taken if so requested
by the Depositary.
12
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 return blocking and voting instructions
to the Depositary in a timely manner."
(e) deleting the second sentence of paragraph (20) in its entirety and
inserting the following in its stead:
"Any amendment which shall impose or increase any fees or charges
(other than the fees of the Depositary for the issuance and delivery
of ADSs and taxes and other governmental charges), or which shall
otherwise prejudice any substantial existing right of Holders of
ADSs, shall, however, not become effective as to outstanding ADSs
until the expiration of one (1) month after notice of such amendment
shall have been given to the Holders of outstanding ADRs."
(f) deleting the fourth sentence of paragraph (21) in its entirety and
inserting the following in its stead:
"At any time after the expiration of six (6) months from the date of
termination, the Depositary may sell the Deposited Securities then
held under the Deposit Agreement and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by
it under the Deposit Agreement, without liability for interest, for
the pro rata benefit of the Holders of ADSs not theretofore
surrendered".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and the
Amended and Restated Deposit Agreement and all other documentation
executed and delivered by the Company in connection therewith, will be and
have been, respectively, duly and validly authorized, executed and
delivered by the Company, and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
13
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Amended and Restated
Deposit Agreement as amended hereby, and other document furnished
hereunder or thereunder in Sweden, neither of such agreements need to be
filed or recorded with any court or other authority in Sweden, nor does
any stamp or similar tax need be paid in Sweden on or in respect of such
agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. New ADRs. From and after the F-6 Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued after the
F-6 Effective Date, once such new ADRs are available, whether upon the deposit
of Shares or other Deposited Securities or upon the transfer, combination or
split up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. However, ADRs issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of ADR 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 Amended and Restated Deposit Agreement. The Depositary is authorized
and directed to take any and all actions deemed necessary to effect the
foregoing.
SECTION 5.02. Notice of Amendment to Holders of ADRs. The Depositary is
hereby authorized and directed to send notices informing the Holders of ADRs (i)
of the terms of this Amendment, (ii) of the F-6 Effective Date and the Effective
Date of this Amendment, and (iii) that the Holder of ADRs shall be given the
opportunity, but that it is unnecessary, to substitute their ADRs with new ADRs
reflecting the changes effected by this Amendment, as provided in Section 5.01
hereof and (iv) that copies of the form of this Amendment may be retrieved from
the Commission's website at xxx.xxx.xxx and may be obtained from the Depositary
and the Company upon request.
14
SECTION 5.03. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.04. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Amended and Restated Deposit Agreement as
originally executed shall remain in full force and effect.
SECTION 5.05. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in that state.
SECTION 5.06. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
15
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
TELEFONAKTIEBOLAGET LM ERICSSON
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
----------------------------
Name:
Title:
16
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED B SHARES OF
TELEFONAKTIEBOLAGET LM ERICSSON
(A Public Company Incorporated Under The Laws Of Sweden)
No.
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as Depositary (herein
called the Depositary), hereby certifies that ________is the owner of________
American Depositary Shares, representing deposited B shares (such B shares are
hereinafter referred to as Shares), without nominal value, of
TELEFONAKTIEBOLAGET LM ERICSSON, a public company incorporated under the laws of
Sweden (herein called the Company). At the date hereof, each American Depositary
Share represents one (1) Share (or evidence of rights to receive one Share)
deposited under the Deposit Agreement at the principal Stockholm office either
of Skandinaviska Enskilda Banken or of Svenska Handelsbanken (herein called the
Custodian or, together, the Custodians). The address of the Depositary's
principal executive office is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue of American Depositary Receipts ("Receipts" or "ADRs"), all issued
and to be issued upon the terms and conditions set forth in the Amended and
Restated Deposit Agreement dated as of September 26, 1995, as amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as of February
10, 1997, as amended by Amendment No. 2 to Amended and Restated Deposit
Agreement, dated as of October 23, 2002, and as further amended by Amendment No.
3 to Amended and Restated Deposit Agreement, dated as of [March 5], 2009 (as so
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders from time to time of ADSs
issued thereunder, each of whom by accepting an ADS becomes bound by all the
terms and provisions thereof. The Deposit Agreement sets forth the rights of
Holders of the Receipts and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are hereinafter referred
to as Deposited Securities). Copies of the Deposit Agreement are on file at the
principal offices of the Depositary and the Custodians. The statements made on
the face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are qualified by and subject to the detailed
provisions of the' Deposit Agreement, to which reference is hereby made. The
terms "deposit", "surrender", "deliver", "transfer" or "withdraw" when used with
respect to Shares, shall refer, where the context requires, to an entry or
entries or an electronic transfer or transfers in an account or accounts
maintained by institutions authorized under applicable law to effect transfers
of securities (which may but need not be the VPC (as defined in paragraph (3)
below)), and not to the physical transfer of certificates representing the
Shares.
(2) Surrender of Receipts and Withdrawal of Shares. Upon surrender
at the Principal Office of the Depositary of this Receipt, and upon payment of
the fee of the Depositary provided in paragraph (6) of this Receipt, and subject
to the terms and conditions of the Deposit Agreement, the Holder hereof is
entitled to delivery, to him or upon his order, of the Deposited Securities at
the time represented by the American Depositary Shares for which this Receipt is
issued. Delivery of such Deposited Securities may be made by the delivery of
certificates in the name of the Holder hereof or as ordered by him or by the
delivery of certificates endorsed or accompanied by proper instruments of
transfer. Such delivery will be made without unreasonable delay and, at the
option of the Holder hereof, either at the office of any Custodian or at the
Principal Office of the Depositary, provided that the forwarding of certificates
for Shares or other Deposited Securities for such delivery at the Principal
office of the Depositary in the Borough of Manhattan, The City of New York shall
be at the risk and expense of the Holder hereof.
(3) Transfers, Split-ups and Combinations. This Receipt is
transferable on the books of the Depositary by the Holder hereof in person or by
duly authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by law; provided, however, that the Depositary may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement. This
Receipt may be split into other Receipts or may be combined with other Receipts
into one Receipt, representing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto and payment of any applicable fees as
provided in paragraph (6) of this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement.
The Depositary may refuse to execute and deliver Receipts, register
the transfer of any Receipt, make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval or other information as it may deem necessary or proper. The
delivery of Receipts against deposits of Shares generally may be suspended, or
the delivery of Receipts against the deposit of particular Shares may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfers or surrenders of Outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary or the Company (or the appointed agent of the Company for
transfer and registration of Shares, which may but need not be the
Vardepapperscentralen VPC AB (the "VPC") or its successor as agent of the
Company for the transfer and registration for Shares) are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time due to compliance with any requirement of applicable
law or governmental regulation relating to Receipts or to the withdrawal of any
Deposited Securities. Without limitation of the foregoing, the Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares which,
if sold by the holder thereof in the United States or its territories, would be
subject to the registration provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
(4) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable with respects to any Deposited Securities
represented hereby, such tax or other governmental charge shall be payable by
the Holder hereof to the Depositary. The Depositary may refuse to effect any
registration of transfer of this Receipt or any withdrawal of Deposited
Securities represented hereby until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder
hereof any part or all of the Deposited Securities represented hereby, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder hereof remaining
liable for any deficiency.
(5) Warranties by Depositor. Every person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefore are valid and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
(6) Charges of Depositary. The Depositary will charge the party to
whom Receipts are delivered against deposits, and the party surrendering
Receipts for delivery of Deposited Securities, $5.00 for each 100 American
Depositary Shares (or portion thereof) represented by the Receipts issued or
surrendered. Any and all expenses of the Depositary, including, without
limitation, the charges and expenses of the Custodians under or in connection
with the Deposit Agreement, other than those fees expressed to be paid by the
Holders in the preceding sentence, or as may be agreed from time to time between
the Company and the Depositary, will be borne by the Depositary, except (i)
taxes and other governmental charges, (ii) share transfer registration fees on
deposits of Shares, (iii) such cable, telex and facsimile transmission and
delivery charges as are expressly provided in the Deposit Agreement to be at the
expense of persons depositing Shares or Holders of Receipts, and (iv) such
expenses as are incurred by the Depositary in the conversion of foreign currency
into dollars.
(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each Certificated ADSs 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, the Receipt has been properly endorsed or is accompanied by
properly executed 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 or be subject to any
liability under the Deposit Agreement to any holder of a Receipt or any
beneficial owners unless such holder is registered as the Holder of such Receipt
on the books of the Depositary or in the case of a Beneficial Owner, such
Beneficial Owner or Beneficial Owner's representative is registered as the
Holder on the books of the Depositary.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, by the manual signature of a duly authorized officer of
such Registrar.
(9) Pre-release. Pursuant to the Deposit Agreement, the Depositary
may issue Receipts for evidence of rights to receive Shares from the Company, or
any Custodian, Registrar, transfer agent, clearing agency or other entity
involved in ownership records or transaction records in respect of the Shares.
Such evidence of rights is required to consist of written blanket or specific
guarantees of ownership of Shares furnished on behalf of the holder thereof. The
Depositary is not permitted to lend Shares or Receipts; except that the
Depositary may (i) issue Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received, The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. The Depositary is required to cause each such transaction to be (a)
accompanied by (x) a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, or (y) such other evidence of
ownership of shares or Receipts, as the case may be, as the Depositary deems
appropriate, (b) at all times fully collateralized (marked to market daily) with
cash, United States Government securities or other collateral of comparable
safety and liquidity, (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. Pursuant to the Deposit
Agreement, the Depositary has agreed to limit the number of Receipts and Shares
involved in such transactions at any one time to thirty percent (30%) of the
face amount of Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), or principal amount of Shares actually deposited
under the Deposit Agreement, respectively. Pursuant to the Deposit Agreement,
the - Depositary is required to set limits with respect to the number of
Receipts and Shares involved in such transactions with any one person on a
case-by-case basis as it deems appropriate. Pursuant to the Deposit Agreement
collateral (but not any earnings thereon) is required to be held for the benefit
of the Holder only. The Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
(10) Power of Attorney. The Holder hereby agrees that, upon
acceptance of this Receipt issued in accordance with the terms of the Deposit
Agreement, the Holder appoints the Depositary its attorney-in-fact, with full
power to delegate, to act on its behalf and to take any and all steps or action
provided for or contemplated herein and in the Deposit Agreement with respect to
the Deposited Securities, including but not limited to those set forth in
Article IV of the Deposit Agreement, and to take such further steps or action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes hereof and of the Deposit Agreement.
(11) Disclosure of Interest. The Holder of this Receipt agrees to
comply with the Company's Articles of Association, as they may be amended from
time to time, and the laws of Sweden, with respect to disclosure requirements,
if any, regarding ownership of Deposited Securities and shares in and other
securities and debt obligations of the Company, all as if this Receipt was to
the extent practicable the Shares represented hereby.
The Depositary shall, at the Company's request, send to any Holder
specified by the Company a notice requiring such Holder to notify the Depositary
as to whether any of such Holder's American Depositary Shares represented by any
of the Receipts held by or registered in the name of such Holder are being held,
directly or indirectly, for some person other than such Holder and, if so, the
name, address and citizenship of such other person or persons. Each Holder will
provide to the Depositary at the Depositary's principal office the information
requested in the Depositary's notice within five (5) business days after the
date of the notice and the. Depositary shall forthwith furnish the Company with
the information provided. Should any Holder fail to provide the information
sought within such five (5) business days, the Depositary shall notify the
Company accordingly and, upon receipt of written instructions from the Company
to that effect, the Depositary shall (i) discontinue the registration of
transfers of all Receipts registered in the name of such Holder; (ii) suspend
the distribution of payments of dividends to such Holder; and (iii) not give any
further notices to such Holder; until such information is provided pursuant to
Section 3.04 of the Deposit Agreement.
(12) Compliance with U.S. Securities Laws. Pursuant to the Deposit
Agreement, the Company and the Depositary are required to exercise any rights
they have under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would not violate the United States
securities laws, including, without being limited to, General Instruction LA(l)
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
Dated:
Countersigned CITIBANK, N.A.,
as Depositary
By _______________________________ By _______________________________
Authorized Officer Vice President
The address of the principal office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions; Rights. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Deposited
Securities, the Depositary will, if at the time of receipt thereof any amounts
received in a foreign currency can in the judgment of the Depositary be
Converted on a reasonable basis into United States dollars transferable to the
United States and, subject to the provisions of the Deposit Agreement, convert
such dividend or distribution into United States dollars and will distribute the
amount thus received to the Holders of Receipts entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively; provided, however, that the amount
distributed will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes. If in the judgment of the
Depositary amounts received in foreign currency may not be converted on a
reasonable basis into United States dollars transferable to the United States,
or may not be so convertible for all of the Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion, if any, and
distribution in United States dollars to the extent permissible to the Holders
of Receipts entitled thereto and may distribute the balance of the foreign
currency received and not so convertible by the Depositary to, or hold such
balance for the account of, the Holders of Receipts entitled thereto. If in the
opinion of the Depositary any distribution other than cash or Shares upon any
Deposited Securities cannot be made proportionately among the Holders of
Receipts entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received, or
any part thereof, and the net proceeds of any such sale will be distributed by
the Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Depositary may
with the Company's approval, and shall if the Company shall so request,
distribute to the Holders of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, converted into United States dollars if not in such
dollars (if such conversion may in the judgment of the Depositary be achieved on
a reasonable basis), to the Holders of Receipts entitled thereto. If additional
Receipts are not so distributed (except as pursuant to the preceding sentence),
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited securities represented thereby. In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any nature, the Depositary shall have discretion as to whether such rights
are to be made available to the Holders of Receipts; provided, however, that the
Depositary will, if requested by the Company, either (a) make such rights
available to Holders of Receipts by means of warrants or otherwise, if lawful
and feasible, or (b) if making such rights available is not lawful or not
feasible, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, sell such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as the Depositary may deem proper, and allocate the proceeds of such sales
for account of the Holders of Receipts otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions, or the date of delivery of any
Receipt or Receipts, or otherwise.
(14) Record Dates. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, the Depositary will fix a
record date for the determination of the Holders of Receipts who shall be
entitled to receive such dividend, distribution or rights, or the net proceeds
of the sale thereof, or to give instructions for the exercise of voting rights
at any such meeting, subject to the provisions of the Deposit Agreement.
(15) Voting of Deposited Securities. Upon receipt of notice from the
Company of any meeting, or solicitation of consent or proxy, of holders of
Shares or other Deposited Securities, the Depositary shall, as soon as
practicable thereafter, establish a record date applicable to Holders of
American Depositary Shares entitled to instruct the Depositary to vote the
Shares or other Deposited Securities represented by such Holder's ADSs and
distribute to the Holders of American Depositary Shares a notice which shall
contain (a) such information as is contained in such notice of meeting,
solicitation of consent or proxy, and (b) a statement that the Holders of
American Depositary Shares at the close of business in New York on the specified
record date will be entitled, subject to any applicable provisions of Swedish
law, the Articles of Association of the Company and the Deposit Agreement, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares. Upon the instruction of a Holder of
American Depositary Shares as of such record date, received on or before the
date established by the Depositary for such purpose, to block the Holder's
American Depositary Shares in the name of the Holder (for the period specified
for such purpose by the Depositary in the applicable notice to Holders) and to
vote the Shares or other Deposited Securities represented thereby, the
Depositary shall endeavor in so far as practicable and as permitted under
Swedish law, the Company's Articles of Association, and the terms of the Deposit
Agreement, to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such Holder's American Depositary Shares in accordance
with the instructions from the applicable Holder. The Depositary agrees not to
exercise any voting rights or powers under any Shares or other Deposited
Securities represented by the American Depositary Shares unless it has received
such blocking and voting instructions from the Holder of the American Depositary
Shares, and then only in accordance with such instructions.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law or regulations, or by the
requirements of the stock exchange on which the ADSs are listed, 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, or
otherwise publicize to Holders, instructions on how to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials).
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 blocking and
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives blocking and voting instructions from
a Holder that 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 instructions. Deposited Securities represented by ADSs for which no
timely blocking and voting instructions are received by the Depositary from the
Holder shall not be voted.
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. The Company
agrees to take any and all actions reasonably necessary to enable Holders and
Beneficial Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
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 return blocking and voting instructions to the Depositary in a timely
manner.
(16) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares shall thenceforth represent the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may with the Company's
approval, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts.
(17) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders of Receipts at its Principal office any
reports and communications received from the Company, including any proxy
soliciting material, which are both (a) received by the Depositary as the holder
of the Deposited Securities, and (b) made generally available to the holders of
such Deposited Securities by the Company. The Depositary will also send to
Holders of Receipts copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep books for the
registration of Receipts and their transfer which at all reasonable times will
be open for inspection by the Holders of Receipts, provided that such inspection
shall not be for the purpose of communicating with Holders of Receipts in the
interest of a business or object other than the business of the Company or a
matter related to the Deposit Agreement or the Receipts.
(18) Liability of the Company and the Depositary. Neither the
Depositary nor the Company shall incur any liability to any Holder of this
Receipt, if by reason of any provision of any present or future law of any
country or of any governmental authority, or by reason of any provision, present
or future, of the Articles of Association of the Company, or by reason of any
act of God or war or other circumstance beyond its control, the Depositary or
the Company shall be prevented or forbidden from doing or performing any act or
thing which by the terms of the Deposit Agreement it is provided shall be done
or performed. Neither the Company nor the Depositary assumes any obligation or
shall be subject to any liability under the Deposit Agreement to Holders of
Receipts, except that they agree to use their best judgment and good faith in
the performance of such duties as are specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense and liability, unless indemnity satisfactory
to it against all expense 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 Custodians being solely to the
Depositary. Neither the Depositary nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
of a Receipt, or any other person believed by it in good faith to be competent
to give such advice or information. The Depositary will not be responsible for
any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or effect of any
such vote, provided that any such action or non-action is in good faith. The
Depositary may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Company agrees to indemnify the Depositary and
each Custodian against, and hold each of them harmless from, any inability or
expense which may arise out of acts performed in accordance with the provisions
of the Deposit Agreement and of the Receipts, as the same may be amended,
modified or supplemented from time to time, (i) by either the Depositary or any
Custodian, except for any liability arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
(19) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time appoint a substitute or additional custodian and the
term "Custodian" shall also refer to such substitute or additional custodian.
(20) Amendment of Deposit Agreement and Receipts. The Receipts and
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any amendment which shall
impose or increase any fees or charges (other than the fees of the Depositary
for the issuance and delivery of ADSs and taxes and other governmental charges),
or which shall otherwise prejudice any substantial existing right of Holders of
ADSs, shall, however, not become effective as to outstanding ADSs until the
expiration of one (1) month after notice of such amendment shall have been given
to the Holders of outstanding ADSs. Every Holder of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby.
(21) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination, The
Depositary may likewise terminate the Deposit Agreement at any time 60 days
after the Depositary shall have resigned, if a successor depositary shall not
have been appointed and accepted its appointment. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices or perform any further acts under the Deposit Agreement, except the
collection of dividends and other distributions pertaining to Deposited
Securities, the sale of rights and the delivery of Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary. At any time after the expiration of
six (6) months from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold the net proceeds of any such sale, together with any other cash then held
by it under the Deposit Agreement, without liability for interest, for the pro
rata benefit of the Holders of ADSs not theretofore surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement, except for its obligations under Section 5.08 thereof and
except to account for the claims of Holders, as creditors of the Depositary, for
such net proceeds and other cash, after deducting, or charging, as the case may
be, the fees of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of this
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 the
Company's obligations under Section 5.08 thereof.
(22) Available Information. The Company currently is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the Securities and Exchange Commission
(hereinafter the Commission). Such reports and other information may be
inspected and copied at public reference facilities maintained by the Commission
in Washington, D.C.
