SUPPLEMENTAL AGREEMENT NO. 2 TO DEPOSIT AGREEMENT
SUPPLEMENTAL
AGREEMENT NO. 2 TO DEPOSIT AGREEMENT
SUPPLEMENTAL
AGREEMENT NO. 2 dated
as
of January , 2008 (the "Amendment") to the Deposit Agreement dated as of August
24, 2000, as amended by Supplemental Agreement No. 1 dated as of January 20,
2004 (as so amended, the "Deposit Agreement"), among Stora Enso Oyj, a company
incorporated in the Republic of Finland, and its successors (the “Company”),
Deutsche Bank Trust Company Americas, a New York banking corporation and an
indirect wholly owned subsidiary of Deutsche Bank AG, in its capacity as the
successor depositary (the “Depositary”),
and
all Holders and Beneficial Owners from time to time of American Depositary
Shares evidenced by American Depositary Receipts issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has or intends to file a Form 15F with the Securities and Exchange
Commission in order to deregister and terminate its reporting obligations with
respect to its ordinary shares and ADRs under the Securities Exchange Act of
1934, as amended.
WHEREAS,
pursuant to Section 6.1 of the Deposit Agreement, the Company and the Depositary
desire to amend the terms of the Deposit Agreement and ADRs to reflect the
Rule
12g3-2(b) exempt status of the Company.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the date hereof, refer to the Deposit Agreement, as amended by this
Amendment.
SECTION
2.02. Each
of
(i) Section 4.12 of the Deposit Agreement and (ii) the first
two
sentences of Article (13) of the form of Receipt are amended to read as
follows:
The
Company shall publish on its web site (xxx.xxxxxxxxx.xxx) on an ongoing basis
certain public reports and documents required by foreign law or otherwise under
Rule 12g3-2(b) under the Exchange Act.
SECTION
2.03. Subparagraph
(v) of the first paragraph of Article (10) of the
form
of
Receipt is amended to read as follows:
(v)
the
fees specified in (i) above shall be payable in respect of ADS distributions
pursuant to stock dividends (or other free distributions of stock) and the
fees
specified in (iii) above shall be payable in respect of distributions of
cash.
SECTION
2.04. The
"Rate" column of item (3) of Exhibit B to the Deposit
Agreement
is amended to read as follows:
The
fees
specified in (1) above shall be payable in respect of a distribution of ADSs
pursuant
to stock dividends (or other free distribution of stock) and the fees specified
in (4) below shall be payable in respect of distributions of cash.
2
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and
warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6Pos as executed and delivered by the Company in connection
herewith, 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 applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in Finland, neither of such
agreements need to be filed or recorded with any court or other authority in
Finland, nor does any stamp or similar tax need to be paid in Finland 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
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment shall be effective of the date first set forth above.
SECTION
4.02. Indemnification.
The
parties hereto shall remain subject to the indemnification provisions of Section
5.8 of the Deposit Agreement, as amended hereby in connection with any and
all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION
4.03. Governing
Law; Jurisdiction. The
Deposit Agreement, the Amendment and the ADRs as amended hereby shall be
governed by and construed in accordance with the laws of the State of New York.
Any dispute, legal suit, action or proceeding arising out of or based upon
the
Deposit Agreement (as amended by the Amendment) or the transactions contemplated
thereby shall be submitted to the exclusive jurisdiction of the Courts of New
York, New York.
3
SECTION
4.04. Outstanding
ADRs.
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 Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
4
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 and
all
Holders shall become parties hereto by holding ADSs as of the date
hereof.
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STORA
ENSO OYJ, as the Company
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Name:
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS, as the Depositary
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Name:
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Title:
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Name:
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Title:
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5
EXHIBIT
A
(FORM
OF
RECEIPT)
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Number
__________
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CUSIP
NUMBER ___________
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| American Depositary Shares (each American Depositary Share representing one Fully Paid Series R Share, without nominal value) |
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
SERIES R SHARES
of
STORA
ENSO Oyj
(Incorporated
under the laws of Finland)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, a New York banking corporation and an indirect
wholly owned subsidiary of Deutsche Bank AG, as depositary (the ”Depositary”),
hereby certifies that ____________________ is the owner of ____________________
American Depositary Shares (hereinafter “ADS”), representing deposited Series R
Shares, without nominal value, including evidence of rights to receive such
Series R Shares (the “Shares”), of Stora Enso Oyj, a corporation incorporated
under the laws of Finland (the “Company”). As of the date of the Deposit
Agreement (as hereinafter defined), each ADS represents one Share deposited
under the Deposit Agreement with the Custodian, which at the date of execution
of the Deposit Agreement is Nordea Bank Finland Plc. (the “Custodian”). The
ADS(s) to Share(s) ratio is subject to amendment as provided in Article IV
of
the Deposit Agreement. The Depositary's Principal Office is located at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
1
(1) The
Deposit Agreement.
This
American Depositary Receipt is one of an issue of American Depositary Receipts
(“Receipts”), all issued and to be issued upon the terms and conditions set
forth in the Deposit Agreement, dated as of August 24, 2000 (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 evidenced by Receipts issued thereunder. The Deposit Agreement sets
forth the rights and obligations of Holders and Beneficial Owners of Receipts
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to
time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called “Deposited Securities”). Copies of the
Deposit Agreement are on file at the 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 Receipt 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 of the Company, 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) Surrender
of Receipts and Withdrawal of Deposited Securities.
The
Holder of this Receipt (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 ADS(s) 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 Receipt) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, this Receipt 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 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 Receipt, of the Deposit Agreement, of the
Company's Articles of Association, of any applicable laws and the rules of
the
Finnish Central Securities Depository Ltd. (“FCSD”) and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
2
Upon
satisfaction of each of the conditions specified above, the Depositary (i)
shall
cancel the ADSs Delivered to it (and, if applicable, the Receipt 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 Receipt, of the Articles of Association of the Company, of any applicable
laws and of the rules of the FCSD, 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 of ADSs representing 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 ADS(s) 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 Receipt 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 Receipt, 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
(3) Transfer,
Combination and Split-Up of Receipts.
The
Registrar shall register the transfer of this Receipt (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall (x) cancel this Receipt and execute new Receipts evidencing the same
aggregate number of ADSs as those evidenced by this Receipt when canceled,
(y)
cause the Registrar to countersign such new Receipts, and (z) Deliver such
new
Receipts to or upon the order of the person entitled thereto, if each of the
following conditions has been satisfied: (i) this Receipt 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 Receipt has been properly endorsed or is accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard securities industry practice), (iii) this Receipt 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
Receipt, 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 Receipt (and of
the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this Receipt and execute new Receipts for the number
of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by this Receipt (when canceled), (y) cause the Registrar to
countersign such new Receipts, and (z) Deliver such new Receipts to or upon
the
order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this Receipt 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 Receipt, 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, registration of issuance
or
transfer, split-up, combination or surrender of any Receipt, 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 a Receipt of a sum sufficient to reimburse it for
any
tax or other governmental charge and any stock transfer or registration fee
with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges
of
the Depositary as provided in the Deposit Agreement and in this Receipt, (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 Receipts 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 Receipt and the Deposit
Agreement and applicable law.
4
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 Receipts in particular instances
may
be refused, or the registration of transfer of outstanding Receipts generally
may be suspended, during any period when the transfer books of the 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,
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 Receipt, 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 Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities 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
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section 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 Receipt,
each Holder and Beneficial Owner of the ADSs represented hereby agrees to comply
with requests from the Company pursuant to applicable Finnish law, the rules
and
requirements of, the Helsinki Exchanges 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 Receipt or of the Deposit Agreement,
the
Company may restrict transfers of the Shares where such transfer might result
in
ownership of Shares exceeding limits under applicable law, including the Act
on
Control of Foreigners' Acquisition of Finnish Companies of 1992, 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.
5
(7) Liability
of Holder for Taxes and Other Charges.
Any tax
or other governmental charge payable with respect to any Receipt 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 Article (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, employees
and
Affiliates for, and hold each of then 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, and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Except as contemplated by Section 2.12
of the Deposit Agreement, each such person shall also be deemed to represent
that Shares deposited by that person are not Restricted Securities, and that
the
deposit of Shares or sale of ADSs by that person is not restricted, under the
Securities Act. 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 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 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 Receipt or the distribution or sale of any dividend or other distribution
of rights or of the proceeds thereof or, to the extent not limited by Article
(24) hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certificates 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.
6
(10) Charges
of Depositary.
The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement:
| (i) |
to
any person to whom ADSs are issued upon the deposit of Shares, a
fee not
in excess of U.S. $ 5.00 per 100 ADSs (or portion thereof) so issued
under
the terms of the Deposit Agreement (excluding issuances pursuant
to
paragraph (iv) and (v) below);
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| (ii) |
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 portion
thereof) so surrendered,
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| (iii) |
to
any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per 100 ADSs
(or
portion thereof) held for the distribution of cash proceeds (i.e.,
upon
the sale of rights and other
entitlements),
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| (iv) |
to
any Holder of ADRs, a fee not in the excess of U.S. $ 5.00 per 100
ADSs
(or portion thereof) issued upon the exercise of rights,
and
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| (v) |
the
fees specified in (i) above shall be payable in respect of ADS
distributions pursuant to stock dividends (or other free distributions
of
stock) and the fees specified in (iii) above shall be payable in
respect
of distributions of cash.
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In
addition, Holders, Beneficial Owners, persons depositing Shares for deposit
and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
| (i) |
taxes
(including applicable interest and penalties) and other governmental
charges;
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| (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;
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| (iii) |
such
cable, telex and facsimile transmissions and delivery expenses 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;
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| (iv) |
the
expenses and charges incurred by the Depositary in the conversion
of
foreign currency;
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| (v) |
such
fees and expenses as are incurred by the Depositary in connection
with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs:
and
|
| (vi) |
the
fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
|
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, only in the manner contemplated by Article
(22)
of this Receipt. 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 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 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
the Receipt 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 Receipt (that is, the person
in
whose name this Receipt 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 this Receipt to any holder of this Receipt or any Beneficial Owner
unless such holder is the Holder of this Receipt 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.
8
(12) Validity
of Receipt.
This
Receipt (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 Receipt 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
Receipts. Receipts 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 Receipt by the
Depositary.
(13) Available
Information; Reports; Inspection of Transfer Books.
The
Company shall publish on its web site (xxx.xxxxxxxxx.xxx) on an ongoing basis
certain public reports and documents required by foreign law or otherwise under
Rule 12g3-2(b) under the Exchange Act. Unless the Company otherwise requests
(in
order to facilitate its compliance with the requirements of applicable law),
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 issuances and transfers
of
Receipts which at all reasonable times shall be open for inspection by the
Company and by the Holders of such Receipts, provided that such inspection
shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such Receipts 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 Receipts.
After
consultation with the Company (to the extent reasonably practicable), the
Registrar may close the transfer books with respect to the Receipts, 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 Article (24)
hereof.
9
Dated:
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS
Transfer
Agent and Registrar
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary
|
||
| By: | By: | ||
|
Authorized
Signatory
|
Authorized
Signatory
|
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
10
(FORM
OF
REVERSE OF RECEIPT)
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 ADS
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 to the relevant governmental authority.
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, 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
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and the 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.
11
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 expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms of the Deposit Agreement. No distribution to Holders
pursuant to this Article (14) shall be unreasonably delayed by any action of
the
Depositary. To the extent such securities or property or the net proceeds
thereof are not distributed to Holders as provided in this Article (14), the
same shall, to the maximum extent permitted by law, constitute Deposited
Securities and each ADS shall thereafter also represent its proportionate
interest in such securities, property or net proceeds. 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 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
dividend shall be distributed 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 distributed as in the case of a distribution in Shares.
If
such elective distribution is not lawful or not reasonably practicable, the
Depositary shall, to the extent permitted by law, distribute to Holders, on
the
basis of the same determination as is made in Finland 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.
12
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 requested that such rights be made available
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 of rights is lawful and 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 request the Depositary to make
the rights available to Holders or if the Company requests the Depositary not
to
make the rights available to Holders, (ii) the Depositary fails to receive
the
documentation required by the Deposit Agreement or determines it is not lawful
or 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 practical. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of (a) applicable 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 reasonably 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 ADR 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 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.
13
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 Depositary to establish procedures enabling Holders
to exercise rights to purchase Shares (rather than ADSs). 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, upon consultation with the
Company, 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, as promptly as practicable, 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 proper 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 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.
14
(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 lawful
and reasonably 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
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs 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 upon the redemption of the Deposited
Securities represented by American Depositary Shares (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 Units or
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, or any other matter, the Depositary shall fix a record date (“ADS Record
Date”) for the determination of the Holders of Receipts who shall be entitled to
receive such distribution, to give instructions for the exercise of voting
rights at any such meeting, or to give or withhold such consent, or 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 Receipt
and the Deposit Agreement, only the Holders of Receipts at the close of business
in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
15
(17) Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting at which the holders
of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the
ADS
Record Date in respect of such meeting or solicitation of such consent or
proxies. Each ten (10) Shares are entitled to one vote; provided, however,
that
each holder of Shares is entitled to a minimum of one vote. The Depositary
shall
(if requested in writing in a timely manner by the Company, at the Company's
expense and provided no U.S. legal prohibitions exist) distribute to Holders:
(a) such notice of meeting or solicitation of consent or proxies, (b) a
statement that the Holders as of the ADS Record Date will be entitled, subject
to any applicable law, the provisions of the Deposit Agreement, the Company's
Articles of Association and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part
by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs, and (c) a brief statement as to the manner in which such
instructions may be given. Upon the timely receipt of voting instructions from
a
Holder of ADSs on the ADS Record Date in the manner specified by the Depositary,
the Depositary shall endeavor, insofar as practicable and permitted under
applicable law, the provisions of the Deposit Agreement, the Articles of
Association of the Company and the provisions of the Deposited Securities,
to
vote, or cause the Custodian to vote, the Deposited Securities represented
by
ADSs held by such Holder in accordance with such instructions.
Inasmuch
as each holder of Shares is entitled to one vote for each ten (10) Shares held
and that each holder of Shares is entitled to a minimum of one vote, voting
instructions may be given by Holders of ADSs only (i) in respect of even
multiples of ten (10) ADSs or (ii) if the Holder holds less than ten (10) ADSs,
in respect of one ADS.
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 except pursuant
to and in accordance with voting instructions from Holders. If the Depositary
timely receives voting instructions from a Holder which fail 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 ADS for which no specific voting
instructions are received by the Depositary from the Holders shall not be
voted.
Under
Finnish law and the Company's Articles of Association, it is a precondition
for
exercising any voting rights that a Holder is registered in the Company's
register as a shareholder at least ten days prior to the date of the meeting
and
gives notice of his intention to attend the meeting, in person or by power
of
attorney, not later than a date specified in the notice convening the meeting.
Pursuant to these requirements, Holders will be entitled to instruct the
Depositary to request the Custodian to cause the equivalent underlying Shares
to
be registered in the Finnish Book-Entry Securities System in the name of the
Holder and to give notice to the Company of the Holder's intention to attend
the
meeting and to vote the Shares at such meeting in person or by proxy. Upon
receipt of timely instructions to that effect from, and satisfaction of all
conditions established by the Depositary for such purposes by, a Holder as
of
the ADS Record Date, the Depositary shall (i) instruct the Custodian to register
the Shares representing such Holder's ADSs in the name of such Holder for the
purpose of enabling the Holder to vote the Shares represented by the Holder's
ADSs, (ii) provide notice to the Company of such Holder's intent to attend
the
meeting in person or by power of attorney, (iii) vote, or cause the Custodian
to
vote, the Deposited Securities in accordance with the instructions of the
Holder, (iv) instruct the Custodian to re-register the Shares in the name of
the
Custodian, the Depositary or their respective nominees upon the conclusion
of
the meeting, and (v) to the extent the ADSs were immobilized with the
Depositary, return the ADSs to the Holder thereof upon receipt of notice of
re-registration from the Custodian.
16
Notwithstanding
anything else contained in the Deposit Agreement or this Receipt, the Depositary
shall not have any obligation to take any action with respect to any meeting,
or
solicitation or 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 return voting instructions
to
the Depositary in a timely manner.
(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 or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or 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 Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. 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, execute and deliver additional Receipts in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to
be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of Receipt contained
in this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. 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 Depositary's reasonable satisfaction 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
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.
17
(19) Exoneration.
Neither
the Depositary nor the Company nor any of their respective controlling persons,
directors, employees, agents or affiliates 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 subjected to any civil or criminal penalty or restraint
on
account of, or delayed in, doing or performing any act or thing required by
the
terms of the Deposit Agreement and this Receipt, by reason of any provision
of
any present or future law or regulation of the United States, Finland or any
other country, or of any other governmental authority or regulatory authority
or
stock exchange, 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, 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 any 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 this Deposit Agreement, made available to Holders of ADS
or
(v) for any consequential or punitive damages for any breach of the terms of
this Deposit Agreement. The Depositary, any Custodian and the Company, and
their
respective controlling persons, directors, employees, and 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 Receipt.
(20) Standard
of Care.
The
Company and its agents assume no obligation and shall not be subject to any
liability under the Deposit Agreement or this Receipt to any Holder(s) or
Beneficial Owner(s) or other persons, except that the Company and Depositary
agree to perform their respective obligations specifically set forth in the
Deposit Agreement and this Receipt without negligence or bad faith. 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 this 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.
18
(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 notice shall be effective on the earlier of (i) the 90th day
after
delivery thereof to the Depositary, or (ii) upon the appointment by the Company
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
be required 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. 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 Receipts and such other
information relating to Receipts 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 Article (22), the Deposit Agreement and
applicable law, this Receipt 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
otherwise
materially prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. 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 traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
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 as amended or supplemented thereby. In no event shall any amendment
or
supplement impair the right of the Holder to surrender such Receipt 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 or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and this Receipt 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.
19
(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 Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. If 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
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement,
the
Holder will, upon surrender of such Holders' Receipt(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 Article (2) hereof 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 Receipt. If any Receipts shall remain outstanding after
the
date of termination of the Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, 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 Receipts 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
a
Receipt, 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 Receipts 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 Receipts and the
Shares, the Deposited Securities and the ADSs, except (a) 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 a Receipt,
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) and (b) for its obligations to the Company under
Sections 5.8 and 7.6 of the Deposit Agreement. 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.
20
(24) Compliance
with U.S. Securities Laws.
Notwithstanding any provisions in this Receipt 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
Section I.A.(l) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of
1933.
(25) Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Article (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, except in the case of Restricted ADSs, (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) accompanied by or 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 marked-to-market daily with cash, U.S. government securities
or
such other comparable 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).
21
(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 Receipt and all rights thereunder, hereby
irrevocably constituting and appointing _______________________ attorney-in-fact
to transfer said Receipt 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 Receipt.
All
endorsements or assignments of Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
22
Legends
(The
Receipts issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the Receipt: “This Receipt
evidences American Depositary Shares representing “partial entitlement” Series R
Shares of Stora Enso Oyj and as such do not entitle the holders thereof to
the
same per-share entitlement as other Series R Shares (which are “full
entitlement” Series R Shares) issued and outstanding at such time. The American
Depositary Shares represented by this Receipt shall entitle Holders to
distributions and entitlements identical to other American Depositary Shares
when the Series R Shares represented by such American Depositary Shares become
“full entitlement” Series R Shares.”)
(This
certificate represents “Restricted ADSs” issued upon the terms of Section 2.12
of the Deposit Agreement (as hereinafter defined). This certificate and the
Restricted ADSs represented hereby may not be sold or otherwise transferred
without an effective registration statement for such securities under the
Securities Act of 1933, as amended, or unless an exemption from registration
under said act is available for such sale or transfer.)
23
