AMENDED AND RESTATED DEPOSIT AGREEMENT by and among TNT N.V. AND JPMORGAN CHASE BANK, N.A., as Depositary, AND THE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER Dated as of...
AMENDED
AND RESTATED DEPOSIT AGREEMENT
by and
among
TNT N.V.
AND
JPMORGAN
CHASE BANK, N.A.,
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as
of February 27, 2009
ARTICLE
I DEFINITIONS
|
5
|
|||
SECTION
1.1.
|
"Affiliate"
|
5
|
||
SECTION
1.2.
|
"American
Depositary Share(s)" and "ADS(s)"
|
6
|
||
SECTION
1.3.
|
"ADS
Record Date"
|
6
|
||
SECTION
1.4
|
"Beneficial
Owner"
|
6
|
||
SECTION
1.5
|
"Business
Xxx"
|
0
|
||
SECTION
1.6
|
"Commission"
|
6
|
||
SECTION
1.7
|
"Company"
|
6
|
||
SECTION
1.8
|
"Custodian"
|
6
|
||
SECTION
1.9
|
"Deliver"
and "Delivery"
|
6
|
||
SECTION
1.10
|
7
|
|||
SECTION
1.11
|
"Depositary
|
7
|
||
SECTION
1.12
|
"Deposited
Securities"
|
7
|
||
SECTION
1.13
|
"Dollars"
and "$"
|
7
|
||
SECTION
1.14
|
"DTC"
|
7
|
||
SECTION
1.15
|
"DTC
Participant"
|
7
|
||
SECTION
1.16
|
"Exchange
Act"
|
7
|
||
SECTION
1.17
|
"Foreign
Currency"
|
7
|
||
SECTION
1.18
|
"Holder"
|
7
|
||
SECTION
1.19
|
"NECIGEF"
|
8
|
||
SECTION
1.20
|
"Netherlands"
or "The Netherlands"
|
8
|
||
SECTION
1.21
|
"Pre-Release"
|
8
|
||
SECTION
1.22
|
"Principal
Office"
|
8
|
||
SECTION
1.23
|
"Receipt(s)";
"American Depositary Receipt(s)" and "ADR(s)"
|
8
|
||
SECTION
1.24
|
"Registrar"
|
8
|
||
SECTION
1.25
|
"Restricted
Securities"
|
8
|
||
SECTION
1.26
|
"Securities
Act"
|
9
|
||
SECTION
1.27
|
"Shares"
|
9
|
||
SECTION
1.28
|
"United
States"
|
9
|
||
ARTICLE
II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
|
9
|
|||
SECTION
2.1
|
Appointment
of Depositary
|
9
|
2
SECTION
2.2
|
Form
and Transferability of Receipts
|
10
|
||
SECTION
2.3
|
Deposit
with Custodian
|
11
|
||
SECTION
2.4
|
Registration
of Shares
|
12
|
||
SECTION
2.5
|
Execution
and Delivery of Receipts
|
13
|
||
SECTION
2.6
|
Transfer of
Receipts, Combination and Split-up of Receipts
|
13
|
||
SECTION
2.7
|
Surrender
of Receipts and Withdrawal of Deposited Securities
|
14
|
||
SECTION
2.8
|
Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension of
Delivery, Transfer, etc.
|
15
|
||
SECTION
2.9
|
Lost
Receipts, etc.
|
16
|
||
SECTION
2.10
|
Cancellation
and Destruction of Surrendered Receipts; Maintenance of
Records
|
16
|
||
SECTION
2.11
|
Partial
Entitlement ADSs
|
17
|
||
ARTICLE
III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL
OWNERS OF RECEIPTS
|
17
|
|||
SECTION
3.1
|
Proofs,
Certificates and Other Information
|
17
|
||
SECTION
3.2
|
Liability
for Taxes and Other Charges
|
18
|
||
SECTION
3.3
|
Representations
and Warranties on Deposit of Shares
|
18
|
||
SECTION
3.4
|
Compliance
with Information Requests
|
19
|
||
SECTION
3.5
|
Ownership
Restrictions
|
19
|
||
ARTICLE
IV THE DEPOSITED SECURITIES
|
20
|
|||
SECTION
4.1
|
Cash
Distributions
|
20
|
||
SECTION
4.2
|
Distribution
in Shares
|
20
|
||
SECTION
4.3
|
Elective
Distributions in Cash or Shares
|
21
|
||
SECTION
4.4
|
Distribution
of Rights.
|
21
|
||
SECTION
4.5
|
Distributions
Other Than Cash, Shares or Rights.
|
23
|
||
SECTION
4.6
|
Distributions
with Respect to Deposited Securities in Bearer Form
|
24
|
||
SECTION
4.7
|
Redemption
|
24
|
||
SECTION
4.8
|
Conversion
of Foreign Currency
|
25
|
||
SECTION
4.9
|
Fixing
of Record Date
|
26
|
||
SECTION
4.10
|
Voting
of Deposited Securities.
|
26
|
||
SECTION
4.11
|
Changes
Affecting Deposited Securities
|
28
|
||
SECTION
4.12
|
Available
Information
|
29
|
3
SECTION
4.13
|
Reports
|
29
|
||
SECTION
4.14
|
List
of Holders
|
29
|
||
SECTION
4.15
|
Taxation
|
29
|
||
ARTICLE
V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
|
30
|
|||
SECTION
5.1
|
Maintenance
of Office and Transfer Books by the Xxxxxxxxx
|
00
|
||
SECTION
5.2
|
Exoneration
|
31
|
||
SECTION
5.3
|
Standard
of Care
|
31
|
||
SECTION
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
|
32
|
||
SECTION
5.5
|
The
Custodian
|
33
|
||
SECTION
5.6
|
Notices
and Reports
|
34
|
||
SECTION
5.7
|
Issuance
of Additional Shares, ADSs, etc
|
35
|
||
SECTION
5.8
|
Indemnification
|
35
|
||
SECTION
5.9
|
Fees
and Charges of Depositary
|
37
|
||
SECTION
5.10
|
Pre-Release
|
38
|
||
ARTICLE
VI AMENDMENT AND TERMINATION
|
38
|
|||
SECTION
6.1
|
Amendment/Supplement
|
38
|
||
SECTION
6.2
|
Termination
|
39
|
||
ARTICLE VII MISCELLANEOUS |
40
|
|||
SECTION
7.1
|
Counterparts
|
40
|
||
SECTION
7.2
|
No
Third-Party Beneficiaries
|
40
|
||
SECTION
7.3
|
Severability
|
40
|
||
SECTION
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect
|
40
|
||
SECTION
7.5
|
Notices
|
41
|
||
SECTION
7.6
|
Governing
Law and Jurisdiction
|
42
|
||
SECTION
7.7
|
Assignment
|
43
|
||
SECTION
7.8
|
Compliance
with U.S. Securities Laws
|
43
|
||
SECTION
7.9
|
Titles
|
43
|
EXHIBIT
A
|
Form of Receipt
|
EXHIBIT B
|
Fee Schedule
|
4
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT, dated as of February 27, 2009, by and among (i)
TNT N.V., a company incorporated under the laws of The Netherlands,
and its successors (the "Company"), (ii) JPMORGAN CHASE BANK, N.A., a national
banking association organized under the laws of the United States of America
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares evidenced by American Depositary Receipts issued hereunder
(all such capitalized terms as hereinafter defined).
WITNESSETH
THAT:
WHEREAS, the Company,
Citibank, N.A., as depositary, and all Holders and Beneficial Owners from time
to time entered into a deposit agreement dated as of June 15, 1998, as amended
(the “Original Deposit Agreement”); and
WHEREAS, pursuant to Section
5.4 of the Original Deposit Agreement, the Company removed Citibank, N.A., as
depositary, and appointed JPMorgan Chase Bank, N.A. as successor depositary
(hereinafter called the “Depositary”); and
WHEREAS, the Company desires
to provide, as hereinafter set forth in this Amended and Restated Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Company
from time to time with the Depositary or with the Custodian (as hereinafter
defined) as agent of the Depositary for the purposes set forth in this Amended
and Restated Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares;
and
WHEREAS, the American
Depositary Receipts are to be substantially in the form of Exhibit A annexed
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.1. "Affiliate"
shall have the meaning assigned to such term by the Commission (as hereinafter
defined) under Regulation C promulgated under the Securities Act (as hereinafter
defined).
5
SECTION
1.2. "American
Depositary Share(s)" and "ADS(s)" American Depositary Shares(s) shall
mean with respect to any American Depositary Receipt, the rights and interests
in the Deposited Securities granted to the Holders and Beneficial Owners
pursuant to the terms and conditions of this Deposit Agreement and the American
Depositary Receipts issued hereunder. Each American Depositary Share shall
represent one Share, until there shall occur a distribution upon Deposited
Securities referred to in Section 4.2 or a change in Deposited Securities
referred to in Section 4.11 with respect to which additional American Depositary
Receipts are not executed and delivered, and thereafter each American Depositary
Share shall represent the Shares or Deposited Securities specified in such
Sections.
SECTION
1.3. "ADS
Record Date" shall have the meaning given to such term in Section
4.9.
SECTION
1.4 "Beneficial
Owner" shall mean as to any ADS, any person or entity having a beneficial
interest deriving from the ownership of such ADS. A Beneficial Owner may or may
not be the Holder of the ADR evidencing such ADSs. A Beneficial Owner shall be
able to exercise any right or receive any benefit hereunder solely through the
person who is the Holder of the ADR(s) evidencing the ADSs owned by such
Beneficial Owner.
SECTION
1.5 "Business
Day" shall mean any day on which both the banks in Amsterdam, The
Netherlands and the banks in New York are open for business.
SECTION
1.6 "Commission"
shall mean the Securities and Exchange Commission of the United States or any
successor governmental agency in the United States.
SECTION
1.7 "Company"
shall mean TNT N.V., a company incorporated and existing under the laws of The
Netherlands, and its successors.
SECTION
1.8 "Custodian"
shall mean, as of the date hereof, either of ING Bank N.V., having its statutory
seat at Xxxxxxxxxxxxxx 0000, 0000 xx Xxxxxxxxx, Xxx Xxxxxxxxxxx and having its
principal office at Xxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, as the
custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may be appointed by the Depositary pursuant to the terms of
Section 5.5 as a successor or an additional custodian or custodians hereunder,
as the context shall require. The term "Custodians" shall mean all custodians,
collectively.
SECTION
1.9 "Deliver", "Deposit", "Surrender",
"Transfer" or "Withdraw" or "Entry" when
used (i) with respect to Shares: (a) in the case of book-entry Shares, shall
refer to an entry or entries in an account or accounts maintained by
institutions authorized under Dutch law to effect transfers of securities, or
(b) in the case of certificated Shares, to the physical delivery, deposit,
withdrawal or transfer of certificates representing the Shares if and to the
extent permitted by applicable law and regulation and (ii) with respect to
American Depositary Shares evidenced by Receipts, (a) in the case of American
Depositary Shares available in book-entry form or otherwise through the direct
registration system established by DTC, shall refer to appropriate adjustments
in the records maintained by (1) the Depositary, (2) DTC or its nominee, or (3)
institutions that have accounts with DTC, as applicable, or (b) otherwise, shall
refer to the physical delivery, deposit, surrender, transfer or withdrawal of
such American Depositary Shares evidenced by Receipts.
6
SECTION
1.10 "Deposit
Agreement" shall mean this Amended and Restated Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION
1.11 "Depositary"
shall mean JPMorgan Chase Bank, , N.A., a national banking association organized
under the laws of the United States of America, in its capacity as depositary
under the terms of this Deposit Agreement, and any successor depositary
hereunder.
SECTION
1.12 "Deposited
Securities" shall mean Shares at any time deposited under this Deposit
Agreement and any and all other securities, property and cash held by the
Depositary or the Custodian in respect thereof, subject, in the case of cash, to
the provisions of Section 4.8. The collateral delivered in connection with
Pre-Release Transactions described in Section 5.10 hereof shall not constitute
Deposited Securities.
SECTION
1.13 "Dollars"
and "$" shall refer to the lawful currency of the United
States.
SECTION
1.14 "DTC"
shall mean The Depository Trust Company, a national clearinghouse and the
central book-entry settlement system for securities traded in the United States
and, as such, the custodian for the securities of DTC Participants (as
hereinafter defined) maintained in DTC, and any successor thereto.
SECTION
1.15 "DTC
Participant" shall mean any financial institution (or any nominee of such
institution) having one or more participant accounts with DTC for receiving,
holding and delivering the securities and cash held in DTC.
SECTION
1.16 "Exchange
Act" shall mean the United States Securities Exchange Act of 1934, as
from time to time amended.
SECTION
1.17 "Foreign
Currency" shall mean currency other than Dollars.
SECTION
1.18 "Holder"
shall mean the person in whose name a Receipt is registered on the books of the
Depositary (or the Registrar, if any) maintained for such purpose. A Holder may
or may not be a Beneficial Owner. If a Holder is not the Beneficial Owner of the
ADSs evidenced by the Receipt registered in its name, such person shall be
deemed to have all requisite authority to act on behalf of the Beneficial Owners
of such ADSs.
7
SECTION
1.19 "NECIGEF"
shall mean The Netherlands Central Institute for Giro Securities (Nederlands
Centraal Instituut voor Giraal Effectenverkeer B.V.), which provides the
book-entry settlement system in The Netherlands, or any successor entity
thereto.
SECTION
1.20 "Netherlands" or
"The Netherlands" means the State of The
Netherlands.
SECTION
1.21 "Pre-Release"
shall have the meaning set forth in Section 5.10 hereof.
SECTION
1.22 "Principal
Office" when used with respect to the Depositary, shall mean the
principal office of the Depositary at which at any particular time its
depositary receipts business shall be administered, which, at the date of this
Deposit Agreement, is located at 4 New York Plaza, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
SECTION
1.23 "Receipt(s)";
"American Depositary Receipt(s)" and "ADR(s)" shall mean the
certificate(s) issued by the Depositary evidencing the American Depositary
Shares issued under the terms of this Deposit Agreement, 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 American Depositary Shares and
may, in the case of American Depositary Shares held through a central depository
such as DTC, be in the form of a "Balance Certificate." Receipts may be either
in physical certificated form or in book-entry form which ownership shall be
evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto.
SECTION
1.24 "Registrar"
shall mean the Depositary or, after consultation with the Company, any
bank or trust company having an office in the Borough of Manhattan, The City of
New York, which shall be appointed by the Depositary to register ownership of
Receipts and transfers of Receipts as herein provided, and shall include any
co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary.
Each Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
SECTION
1.25 "Restricted
Securities" shall mean Shares, or American Depositary Shares representing
such Shares, which are either (i) acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) subject to other restrictions on sale or deposit under the
laws of the United States, The Netherlands, or under a shareholder agreement or
the Articles of Association of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares are being sold
to persons other than an Affiliate of the Company in a transaction (i) covered
by an effective resale registration statement or (ii) exempt from the
registration requirements of the Securities Act (as hereinafter defined), and
the Shares are not, when held by such persons, Restricted
Securities.
8
SECTION
1.26 "Securities
Act" shall mean the United States Securities Act of 1933, as from time to
time amended.
SECTION
1.27 "Shares"
shall mean the Company's ordinary shares, validly issued and
outstanding and fully paid and may, if the Depositary so agrees after
consultation with the Company, include evidence of the right to receive Shares;
provided that in no event shall Shares include evidence of the right to receive
Shares with respect to which the full purchase price has not been paid or Shares
as to which preemptive rights have theretofore not been validly waived or
exercised; provided further, however, that, if there shall occur any change in
nominal value, split-up, consolidation, reclassification, conversion or any
other event described in Section 4.8, in respect of the Shares of the Company,
the term "Shares" shall thereafter, to the extent permitted by law, represent
the successor securities resulting from such change in nominal value, split-up,
consolidation, exchange, conversion, reclassification or event.
SECTION
1.28 "United
States" shall have the meaning assigned to it under Regulation S under
the Securities Act.
ARTICLE
II
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION AND DELIVERY,
TRANSFER
AND SURRENDER OF RECEIPTS
SECTION
2.1
Appointment
of Depositary. The Company hereby appoints the Depositary as depositary
for the Deposited Securities and hereby authorizes and directs the Depositary to
act in accordance with the terms set forth in this Deposit Agreement. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms of this Deposit Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of this
Deposit Agreement 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 this Deposit Agreement, 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 this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof).
9
SECTION
2.2 Form and
Transferability of Receipts.
(a) Form.
American Depositary Shares shall either be (i) held on the books of the
Depositary in book entry form eligible for the direct registration system
established by DTC and utilized by the Depositary pursuant to which the
Depositary may record the ownership of Receipts without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the Holders entitled thereto or (ii) evidenced by definitive
Receipts which shall be printed or lithographed or shall be in such other form
as may be agreed upon by the Company and the Depositary, and in any event shall
be substantially in the form or, in the case of book entry American Depositary
Shares contain the terms, set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts in certificated form shall be
executed and dated by the Depositary by the manual or facsimile signature of a
duly authorized officer of the Depositary. No certificated Receipt and no
American Depositary Share evidenced thereby shall be entitled to any benefits
under this Deposit Agreement or be valid or enforceable for any purpose, unless
such Receipt shall have been executed by the manual or facsimile
signature of a duly authorized officer of the Depositary or the Registrar, and
such execution of any Receipt by manual or facsimile signature shall be
conclusive evidence, and the only evidence, that such Receipt has been duly
executed and delivered hereunder. The Registrar shall maintain separate books in
which is registered each Receipt evidencing American Depositary Shares so
executed and delivered and the transfer of each American Depositary Receipt.
Receipts bearing the facsimile signature of a duly-authorized officer of the
Depositary, who was at the time of signature a proper officer of the Depositary,
shall bind the Depositary, notwithstanding the fact that such officer has ceased
to hold such office prior to the execution of such Receipt or the delivery of
such Receipt. The Receipts shall bear a CUSIP number that is different from any
CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company which are not Receipts
issued hereunder.
(b) Legends.
The Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as (i) may be necessary to enable the Depositary to perform
its obligations hereunder, (ii) may be required to comply with any applicable
law or regulations, or with the rules and regulations of any securities exchange
or market upon which American Depositary Shares may be traded, listed or quoted
or to conform with any usage with respect thereto, (iii) as may be necessary to
indicate any special limitations or restrictions to which any particular
Receipts or American Depositary Shares are subject by reason of the date of
issuance of the Deposited Securities, or (iv) may be required by any book-entry
system in which the ADRs are held.
(c) Title.
Subject to the limitations contained herein and in the Receipt, title to a
Receipt (and to each American Depositary Share evidenced thereby), when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable
by delivery with the same effect as in the case of a negotiable instrument under
the laws of the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may deem and treat the Holder of a
Receipt (that is, the person in whose name a Receipt is registered on the books
of the Depositary) as the absolute owner thereof for all purposes, and the
Depositary shall have no obligation or be subject to any liability under this
Deposit Agreement to any holder of a Receipt or any Beneficial Owner or other
person or entity unless such holder is the registered Holder of such Receipt 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.
10
(d) Book-Entry
Systems. The Depositary shall make arrangements for the acceptance of the
American Depositary Shares into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co."). As such, the
nominee for DTC will be the only "Holder" of the ADR evidencing all ADSs held
through DTC. Each Beneficial Owner of ADSs held through DTC must rely upon the
procedures of DTC and the DTC Participants to exercise or be entitled to any
rights attributable to such ADSs. The DTC Participants shall for all purposes be
deemed to have all requisite power and authority to act on behalf of the
Beneficial Owners of the ADSs held in the DTC Participants' respective accounts
in DTC and the Depositary shall for all purposes be authorized to rely upon any
instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC (or
its nominee), or (ii) DTC Participants (or their nominees).
SECTION
2.3 Deposit
with Custodian. Subject to the terms and conditions of this Deposit
Agreement and applicable law, Shares or evidence of rights to receive Shares
(other than Restricted Securities) may be deposited by any person (including the
Depositary in its individual capacity but subject, however, in the case of the
Company or any Affiliate of the Company, to Section 5.7 hereof) at any time,
whether or not the transfer books of the Depositary or the Company are closed,
by Delivery of the Shares in bearer form with the related dividend sheets to the
Custodian in the securities account maintained by the Custodian for such purpose
at NECIGEF. (A) such certifications and payments (including, without limitation,
the Depositary's fees and related charges) and evidence of such payments
(including, without limitation, stamping or otherwise marking such Shares by way
of receipt) as may be required by the Depositary or the Custodian in accordance
with the provisions of this Deposit Agreement, (B) if the Depositary so
requires, a written order directing the Depositary to execute and deliver to, or
upon the written order of, the person or persons stated in such order a Receipt
or Receipts for the number of American Depositary Shares representing the Shares
so deposited, (C) evidence satisfactory to the Depositary (which may be an
opinion of counsel) that all necessary approvals have been granted by, or there
has been compliance with the rules and regulations of, any applicable
governmental agency in The Netherlands, and (D) if the Depositary so requires,
an agreement, assignment or instrument satisfactory to the Depositary or the
Custodian which provides for the prompt transfer by any person in whose name the
Shares are or have been recorded to the Custodian of any distribution, or right
to subscribe for additional Shares or to receive other property in respect of
any such deposited Shares or, in lieu thereof, such indemnity or other agreement
as shall be satisfactory to the Depositary or the Custodian. Any person
depositing Shares hereunder shall be deemed to represent that the Shares
deposited are not Restricted Securities. Without limiting any other provision of
this Deposit Agreement, the Depositary shall instruct the Custodian not to, and
the Depositary shall not knowingly, accept for deposit (a) any Restricted
Securities nor (b) any fractional Shares or fractional Deposited Securities nor
(c) a number of Shares or Deposited Securities which upon application of the ADS
to Shares ratio would give rise to fractional ADSs. No Share shall be accepted
for deposit unless accompanied by evidence, if any is required by the
Depositary, that is reasonably satisfactory to the Depositary or the Custodian
that all conditions to such deposit have been satisfied by the person depositing
such Shares under the laws and regulations of The Netherlands and any necessary
approval has been granted by any governmental body in The Netherlands, if any,
which is then performing the function of the regulator of currency exchange. The
Depositary may issue Receipts against evidence of rights to receive Shares from
the Company, any agent of the Company or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof.
11
At the
request, risk and expense of any holder of Shares, and for the account of such
holder, the Depositary may receive Shares to be deposited, evidence that Shares
have been electronically transferred or that irrevocable instructions have been
given to cause the transfer of such Shares to the account of the Custodian,
together with the other orders, instruments and evidence herein specified, for
the purpose of forwarding such Shares to the Custodian for deposit
hereunder.
SECTION
2.4 Registration
of Shares. The Depositary shall instruct the Custodian upon each delivery
of Shares being deposited hereunder with the Custodian (or other Deposited
Securities pursuant to Article IV hereof), together with the other documents
above specified, to promptly notify the Depositary of such deposit and the
person or persons to whom or upon whose written order an ADR or ADRs are
deliverable with respect to such deposit. Deposited Securities shall be held by
the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee in each case on behalf of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares or other Deposited
Securities, or any Shares or Deposited Securities the deposit of which would
violate any provisions of the Articles of Association of the
Company.
12
SECTION
2.5 Execution
and Delivery of Receipts. The Depositary has made arrangements with the
Custodian to confirm to the Depositary (i) that a deposit of Shares has been
made pursuant to Section 2.3 hereof, (ii) that transfer of such Shares has been
made to the securities account of the Custodian maintained at NECIGEF, (iii)
that all required documents have been received, and (iv) the person or persons
to whom or upon whose written order American Depositary Shares are deliverable
in respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification may be made by letter, cable, telex, SWIFT message
or, at the risk and expense of the person making the deposit, if such person
should so request by facsimile or other means of electronic transmission. Upon
receiving such notice from such Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall issue the American Depositary
Shares representing the Shares so deposited to or upon the order of the
person(s) named in the notice delivered to the Depositary and shall execute and
deliver a Receipt or Receipts, registered in the name or names requested by such
person(s) and evidencing the aggregate number of American Depositary Shares to
which such person(s) are entitled, but only upon payment to the Depositary of
the charges of the Depositary for making a deposit and the issuance of American
Depositary Shares and execution and delivery of such Receipt or Receipts (as set
forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the Receipt or Receipts. The Depositary shall only
issue American Depositary Shares in whole numbers and deliver American
Depositary Receipts evidencing whole numbers of American Depositary Shares.
Nothing herein shall prohibit any Pre-Release Transaction upon the terms set
forth in this Deposit Agreement.
SECTION
2.6 Transfer of
Receipts, Combination and Split-up of Receipts.
(a) Transfer.
The Registrar, subject to the terms and conditions of this Deposit Agreement,
shall register transfers of Receipts on its books, upon surrender at the
Principal Office of the Depositary of a Receipt by the Holder thereof in person
or by duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice) and duly stamped as may be required by the laws of
the State of New York and of the United States of America. Subject to the terms
and conditions of this Deposit Agreement, including payment of the applicable
fees and charges of the Depositary set forth in Section 5.9 and Exhibit B
hereto, the Depositary shall execute (and, if the Depositary's signature is by
facsimile, the Registrar shall manually countersign) a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the Receipts surrendered.
(b) Combination
& Split Up. The Depositary, subject to the terms and conditions of this
Deposit Agreement shall, upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts and upon
payment to the Depositary of the applicable fees and charges set forth in
Section 5.9 and Exhibit B hereto, execute and, if the Depositary's signature is
by facsimile, the Registrar shall manually countersign and deliver, a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
13
(c) Co-Transfer
Agents. The Depositary may, after consultation with the Company, appoint one or
more co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary. Each
co-transfer agent appointed under this Section 2.6 (other than the Depositary)
shall give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit
Agreement.
SECTION
2.7 Surrender
of Receipts and Withdrawal of Deposited Securities. Upon surrender, at
the Principal Office of the Depositary, of American Depositary Shares for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals of Deposited Securities and cancellation of Receipts (as set forth
in Section 5.9 and Exhibit B hereof) and (ii) all applicable taxes and
governmental charges payable in connection with such surrender and withdrawal,
and subject to the terms and conditions of this Deposit Agreement, the Company's
Articles of Association, Section 7.8 hereof and any other provisions of or
governing the Deposited Securities and other applicable laws, the Holder of such
American Depositary Shares shall be entitled to Delivery, to him or upon his
order to a specified account in NECIGEF or, if for any reason delivery by such
means is not available by physical delivery at the designated office of the
Custodian of the Deposited Securities at the time represented by the American
Depositary Shares so surrendered. American Depositary Shares may be surrendered
for the purpose of withdrawing Deposited Securities by delivery of a Receipt
evidencing such American Depositary Shares (if held in registered form) or by
book-entry delivery to a specified account in DTC of such American Depositary
Shares to the Depositary.
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) to a
specified account in NECIGEF or, if, for any reason delivery by such means is
not available, by physical delivery at the designated office of the Custodian,
subject to Sections 2.8, 3.1, 3.2, 5.9, and to the other terms and conditions of
this Deposit Agreement, to the Articles of Association of the Company, and the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, evidence
of the electronic transfer (if available) of the Deposited Securities
represented by such American Depositary Shares. If electronic transfer is
unavailable for the Shares or any other securities, property or cash to which
the Holder is entitled, physical delivery may be made by the delivery of the
securities, property or cash for which electronic delivery is unavailable,
together with any certificate or other proper documents of or relating to title
of such securities, property, or cash. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends or
cash distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
14
The
Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. The Depositary may, in its
discretion, refuse to accept for surrender a number of American Depositary
Shares representing a number other than a whole number of Shares. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
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) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt 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 Receipt.
At the
request, risk and expense of any Holder so surrendering a 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 in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
SECTION
2.8 Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension of Delivery,
Transfer, etc.
(a)
Additional Requirements. As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, combination or surrender of
any Receipt, the delivery of any distribution thereon or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (i) payment
from the depositor of Shares or presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Section 5.9 and
Exhibit B hereof, (ii) the production of proof reasonably satisfactory to it as
to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this Deposit Agreement and applicable
law.
15
(b)
Additional Limitations. The issuance of ADSs against deposits of Shares
generally or against deposits of particular Shares maybe suspended, or the
issuance of ADSs 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 of Receipts generally may be suspended, during
any period when the transfer books of the Company, the Depositary or a 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 on which the Receipts or Shares are
listed, or under any provision of this Deposit Agreement or provisions of, or
governing, the Deposited Securities, or any meeting of shareholders of the
Company or for any other reason, subject, in all cases, to Section 7.8
hereof.
(c)
Regulatory Restrictions. Notwithstanding any provision of this Deposit Agreement
or the Receipts to the contrary, the surrender of outstanding American
Depositary Shares and withdrawal of Deposited Securities may not be suspended or
refused, except as permitted in General Instruction I.A.(1) to Form F-6 (as such
instructions may be amended from time to time) in connection with (i) temporary
delays caused by closing transfer books of the Depositary or the Company or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited
Securities.
SECTION
2.9
Lost
Receipts, etc. In case any Receipt shall be mutilated, destroyed, lost,
or stolen, the Depositary shall execute and deliver a new Receipt of like tenor
at the expense of the Holder (a) in the case of a mutilated Receipt, in exchange
of and substitution for such mutilated Receipt upon cancellation thereof, or (b)
in lieu of and in substitution for such destroyed, lost, or stolen Receipt,
after the Holder thereof (i) has submitted to the Depositary a written request
for such exchange and substitution before the Depositary has notice that the
Receipt has been acquired by a bona fide purchaser, (ii) has provided such
security or indemnity (including an indemnity bond) as may be required by the
Depositary to save it and any of its agents harmless, and (iii) has satisfied
any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION
2.10 Cancellation
and Destruction of Surrendered Receipts; Maintenance of Records. All
Receipts surrendered to the Depositary shall be canceled by the Depositary. The
Depositary is authorized to destroy Receipts so canceled, provided the
Depositary maintains a record of all destroyed Receipts.
16
SECTION
2.11 Partial
Entitlement ADSs. In the event any Shares are deposited which entitle the
holders thereof to receive a per-share distribution or other entitlement in an
amount different from the Shares then on deposit (the Shares then on deposit
collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of this Agreement, issue ADSs
and deliver ADRs representing Partial Entitlement Shares which are separate and
distinct from the ADSs and ADRs representing Full Entitlement Shares, by means
of separate CUSIP numbering and legending (if necessary) ("Partial Entitlement
ADSs/ADRs" and "Full Entitlement ADSs/ADRs," respectively). When Partial
Entitlement Shares become Full Entitlement Shares, the Depositary shall (a)
cause the Custodian to transfer the Partial Entitlement Shares into the account
of the Full Entitlement Shares, (b) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other and (c) give
notice thereof to Holders of Partial Entitlement ADSs and give Holders of
Partial Entitlement ADRs the opportunity to exchange such Partial Entitlement
ADRs for Full Entitlement ADRs. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlement of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of this Agreement shall apply to Partial Entitlement ADRs and
ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.11. The Depositary is authorized to take any and
all other actions as may be necessary (including, without limitation, making the
necessary notations on Receipts) to give effect to the terms of this Section
2.11. The Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued are Partial Entitlement Shares and shall assist
the Depositary with the establishment of procedures enabling the identification
of Partial Entitlement Shares upon Delivery to the Custodian.
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS AND
BENEFICIAL
OWNERS OF RECEIPTS
SECTION
3.1
Proofs,
Certificates and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder
and Beneficial Owner agrees, from time to time to provide to the Depositary and
the Custodian such proof of citizenship or residence, taxpayer status, payment
of all applicable taxes or other governmental charges, exchange control
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws and the terms of this Deposit Agreement and the
provisions of, or governing, the Deposited Securities or other information; to
execute such certifications and to make such representations and warranties, and
to provide such other information and documentation (or, in the case of Shares
in registered form presented for deposit, such information relating to the
registration on the books of the Company or of the appointed agent of the
Company for the registration and transfer of Shares) as the Depositary or the
Custodian may reasonably deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations hereunder. 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 distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8
hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation and withdrawal. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
17
SECTION
3.2
Liability
for Taxes and Other Charges. If any tax or other governmental charge
shall become payable with respect to any ADR or any Deposited Securities or
American Depositary Shares, such tax or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary. The Company, the
Custodian and/or the Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of a Holder
and/or Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 2.8 (c))
the withdrawal of Deposited Securities until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and any of their
agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
SECTION
3.3
Representations
and Warranties on Deposit of Shares. Each person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim,
and are not, and the American Depositary Shares issuable upon such deposit will
not be, Restricted Securities and the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
18
SECTION
3.4 Compliance
with Information Requests. Notwithstanding any other provision of this
Deposit Agreement, each Holder and Beneficial Owner agrees to comply with
requests from the Company pursuant to Dutch law, the rules and requirements of
the Amsterdam Stock Exchange, and any other stock exchange on which the Shares
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 American Depositary
Shares (and Shares as the case may be) and regarding the identity of any other
person interested in such American Depositary Shares and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to use its
reasonable efforts to forward upon the request of the Company, at the Company's
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the
Depositary.
SECTION
3.5 Ownership
Restrictions. Notwithstanding any other provision in this Deposit
Agreement the Company may restrict transfers of the Shares where such transfer
might result in ownership of Shares exceeding limits imposed by applicable law
or the Articles of Association of the Company. The Company may also restrict, in
such manner as it deems appropriate, transfers of the American Depositary Shares
where such transfer may result in the total number of Shares represented by the
American Depositary Shares owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company reserves the right to instruct Holders to
deliver their ADSs for cancellation and withdrawal of the Deposited Securities
so as to permit the Company to deal directly with the Holder thereof as a holder
of Shares and Holders agree to comply with such
instructions. The Depositary agrees to cooperate with the
Company in its efforts to inform Holders of the Company's exercise of its rights
under this paragraph and agrees to consult with, and provide reasonable
assistance without risk, liability or expense on the part of the Depositary, to
the Company on the manner or manners in which it may enforce such rights with
respect to any Holder.
. Holders
and Beneficial Owners acknowledge that, under the Dutch Act on the Disclosure of
Holdings in Listed Companies, shareholders must promptly notify the Company and
The Netherlands Securities Investment Board if their holding reaches, exceeds or
falls below 5%, 10%, 25%, 50% or 66-2/3% of the capital interest and/or voting
rights in the Company and agree to comply with such notification
requirements.
19
ARTICLE
IV
THE
DEPOSITED SECURITIES
SECTION
4.1
Cash
Distributions. 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 Shares, rights,
securities or other entitlements under the terms hereof, the Depositary will, if
at the time of receipt thereof any amounts received in a foreign currency can in
the reasonable judgment of the Depositary (pursuant to Section 4.8 hereof) be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (on the terms described in Section 4.8) and will
distribute promptly the amount thus received (net of any (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld, in
each case, to the extent permitted by the provisions of this Agreement) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of American Depositary Shares 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. Fractional cents
will be withheld without liability and dealt with by the Depositary in
accordance with its then current practices. 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 American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
SECTION
4.2 Distribution
in Shares. If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Company shall cause such
Shares to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or any of their nominees. Upon receipt
of confirmation of such deposit from the Custodian, the Depositary shall
establish the ADS Record Date upon the terms described in Section 4.9 and shall,
subject to Section 5.9 hereof, either (i) distribute to the Holders as of the
ADS Record Date in proportion to the number of American Depositary Shares held
as of the ADS Record Date, additional American Depositary Shares, which
represent in the aggregate the number of Shares received as such dividend, or
free distribution, subject to the other terms of this Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes, in each case, to the extent
permitted by the provisions of this Agreement) or (ii) if additional American
Depositary Shares are not so distributed, each American Depositary Share issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes, in each case, to the extent permitted by the provisions of this
Agreement). In lieu of delivering fractional American Depositary Shares, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the net proceeds upon the terms described in Section
4.1. In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligation under Section 5.7 hereof, 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 such (a)
taxes and (b) fees and charges of, and expenses incurred by, the Depositary, in
each case, to the extent permitted by the provisions of this Agreement) to
Holders entitled thereto upon the terms described in Section 4.1. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of this Deposit Agreement.
20
SECTION
4.3 Elective
Distributions in Cash or Shares. Whenever the Company intends to
distribute a dividend payable at the election of the holders of Shares in cash
or in additional Shares, the Company shall give notice thereof to the Depositary
at least 60 days prior to the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon
receipt of notice indicating that the Company wishes such elective distribution
to be made available to Holders of ADSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such
elective distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the Depositary
shall have determined that such distribution is reasonably practicable and (ii)
the Depositary shall have received documentation within the terms of Section 5.7
reasonably satisfactory to it. If the above conditions are not satisfied, the
Depositary shall, to the extent permitted by law, distribute to the Holders, on
the basis of the same determination as is made in the local market in respect of
the Shares for which no election is made, either (X) cash upon the terms
described in Section 4.1 or (Y) additional ADSs representing such additional
Shares upon the terms described in Section 4.2. If the above conditions are
satisfied, the Depositary shall establish an ADS Record Date (on the terms
described in Section 4.9) and establish procedures to enable Holders to elect
the receipt of the proposed dividend in cash or in additional ADSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed dividend (X) in cash, the
dividend shall be distributed upon the terms described in Section 4.1, or (Y) in
ADSs, the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
SECTION
4.4 Distribution of
Rights.
(a) Distribution
to ADS Holders. Whenever the Company intends to distribute to the holders of the
Deposited Securities rights to subscribe for additional Shares (or any rights of
any other nature), the Company shall give notice thereof to the Depositary at
least 60 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the Holders.
The Depositary shall make such rights available to Holders only if (i) the
Company shall have requested that such rights be made available to Holders, (ii)
the Depositary shall have received documentation within the terms of Section 5.7
reasonably satisfactory to it, and (iii) the Depositary shall have determined
that such distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied, the Depositary shall proceed
with the sale of the rights as contemplated in Section 4.4(b) below. In the
event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9) and
establish procedures to distribute such rights (by means of warrants or
otherwise) and to enable the Holders to exercise the rights (upon payment of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes). The Company shall assist the Depositary to the extent necessary in
establishing such procedures. Nothing herein shall obligate the Depositary to
make available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
21
(b) Sale
of Rights. If (i) the Company does not request the Depositary to make the rights
available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive documentation within the terms of
Section 5.7 reasonably satisfactory to it or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity, at such place and upon such terms
(including public and private sale) as it may deem proper. The Company shall
assist the Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes, in each case, to the extent permitted
by the provisions of this Agreement) upon the terms set forth in Section
4.1.
(c) Lapse
of Rights. If the Depositary is unable to make any rights available to Holders
upon the terms described in Section 4.4(a) or to arrange for the sale of the
rights upon the terms described in Section 4.4(b), the Depositary shall allow
such rights to lapse.
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution if the Company has provided or approved such materials; provided,
however, if such materials are received by the Depositary from a person other
than the Company or its agent and such materials are required by law to be
forwarded to Holders, the Depositary shall promptly provide the Company with a
copy of such materials for the Company's review and, unless otherwise required
by law, the Company's approval, prior to distribution by the Depositary to the
Holders.
22
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or the securities to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not distribute such rights to the Holders
unless and until a registration statement under the Securities Act covering such
offering is in effect. 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 Receipts
evidencing American Depositary Shares 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
reasonably deems necessary and practicable to pay any such taxes or
charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein shall obligate the
Company to file any registration statement in respect of any rights or Shares or
other securities to: be acquired upon the exercise of such rights.
SECTION
4.5 Distributions Other
Than Cash, Shares or Rights.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of ADSs. Upon
receipt of a notice indicating that the Company wishes such distribution be made
to Holders of ADSs, the Depositary shall consult with the Company, and the
Company shall assist the Depositary, to determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable.
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld, in each case,
to the extent permitted by the provisions of this Agreement. 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 reasonably deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
23
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, 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 reasonably 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, in each case, to the extent permitted by the provisions of this
Agreement) to the Holders as of the ADS Record Date upon the terms of Section
4.1. If the Depositary is unable to sell such property, the Depositary may
dispose of such property in any way it deems reasonably practicable under the
circumstances. Any benefit received upon such disposition shall be for the
benefit of the Holders.
SECTION
4.6 Distributions
with Respect to Deposited Securities in Bearer Form. Subject to the terms
of this Article IV, distributions in respect of Deposited Securities that are
held by the Depositary in bearer form shall be made to the Depositary for the
account of the respective Holders of Receipts with respect to which any such
distribution is made upon due presentation by the Depositary or the Custodian to
the Company of any dividend sheets. The Company shall promptly notify the
Depositary of such distributions. The Depositary or the Custodian shall promptly
present such dividend sheets in connection with any such
distribution.
SECTION
4.7 Redemption.
If the Company intends to exercise any right of redemption in respect of any of
the Deposited Securities, the Company shall give notice thereof to the
Depositary at least 60 days prior to the intended date of redemption which
notice shall set forth the particulars of the proposed redemption. Upon receipt
of such notice and a satisfactory opinion of counsel, the Depositary shall mail
to each Holder a notice setting forth the intended exercise by the Company of
the redemption rights and any other particulars set forth in the Company's
notice to the Depositary. The Depositary shall instruct the Custodian to present
to the Company the Deposited Securities in respect of which redemption rights
are being exercised against payment of the applicable redemption price. Upon
receipt of confirmation from the Custodian that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, and distribute the proceeds (net of
applicable (a) fees and charges of, and the expenses incurred by, the
Depositary, and (b) taxes, in each case, to the extent permitted by the
provisions of this Agreement), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2 hereof.
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 per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of Section 4.8
hereof and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes, in each case, to the extent permitted by the provisions
of this Agreement) multiplied by the number of Deposited Securities represented
by each ADS redeemed.
24
SECTION
4.8 Conversion
of Foreign Currency. Whenever the Depositary or the Custodian shall
receive Foreign Currency, by way of dividends or other distributions or the net
proceeds from the sale of securities, property or rights, which in the
reasonable judgment of the Depositary can at such time be converted on a
practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such
conversion or distribution generally or with regard to a particular Holder can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event, however,
shall the Depositary be obligated to make such a filing.
If at any
time the Depositary shall determine that in its reasonable judgment that the
conversion of any Foreign Currency and the transfer and the distribution of
proceeds of such conversion received by the Depositary is not practical or
lawful, or if any approval or license of any governmental authority or agency
thereof that is required for such conversion transfer and distribution is denied
or, in the reasonable opinion of the Depositary, not obtainable at a reasonable
cost or within a reasonable period, the Depositary may, in its discretion, (i)
make such conversion and distribution in Dollars to the Holders for whom such
conversion, transfer and distribution is lawful and practicable, (ii) distribute
the Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) to Holders for whom this is lawful and practicable or
(iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders
entitled to receive the same.
25
SECTION
4.9 Fixing
of 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
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of or solicitation of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter (including setting the record date for Holders responsible for any
fees and/or charges assessed by the Depositary pursuant to this Deposit
Agreement), the Depositary shall, after consultation with the Company, fix a
record date (the "ADS Record Date") for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution, 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 American Depositary Share or for
determining those Holders responsible for any fees and/or charges assessed by
the Depositary pursuant to this Deposit Agreement. The Depositary shall make
reasonable efforts to establish the ADS Record Date as closely as possible to
the applicable record date for the Deposited Securities (if any). Subject to
applicable law and the provisions of Section 4.1 through 4.8 and to the other
terms and conditions of this Deposit Agreement, only the Holders of Receipts at
the close of business on such ADS Record Date shall be entitled to receive such
distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
SECTION
4.10 Voting of Deposited
Securities.
(a) ADS
Voting Instructions. As soon as practicable after receipt of notice pursuant to
Section 5.6 of any meeting of holders of Shares or other Deposited Securities.
The Depositary shall fix a record date for determining the Holders entitled to
give instructions for the exercise of voting rights as provided in Section 4.9.
The Depositary shall, if requested in writing by the Company in a timely manner
(which request must be received by the Depositary at least 30 days prior to such
meeting) and provided no U.S. legal prohibitions exists, mail to the Holders of
record a notice which shall contain: (a) such information as is contained in
such notice of meeting, (b) a statement in English, in a form provided by the
Company, that the Holders of record at the close of business on a specified
record date will be entitled, subject to the terms of this Section, any
applicable provisions of Dutch law, the corporate charter and by-laws of the
Company and the provisions of or governing Deposited Securities (which
provisions, if any, shall have been summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights
pertaining to the number of Deposited Securities represented by their respective
Receipts and (c) a statement addressing the manner in which such instructions
may be .given, including an indication that instructions may be given (or may be
deemed to have been given in accordance with the last sentence of the next
paragraph if no instructions are received prior to the deadline set for such
purposes) to the Depositary to give a discretionary proxy to a person designated
by the Company. In the event the notice of meeting and request of the Company is
not received by the Depositary at least 30 days prior to the meeting, the
Depositary shall not have any obligation to notify the Holders and shall not
vote or cause to be voted the Deposited Securities. Upon the written request of
a Holder on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as is
practicable and permitted under applicable law and the provisions of the
corporate charter and by-laws of the Company and the provisions of or governing
the Deposited Securities, to vote or cause to be voted the number of Deposited
Securities represented by the American Depositary Shares evidenced by the
Holder's Receipt in accordance with the instructions set forth in such
request.
26
(b) Discretionary
Proxy to Management. The Depositary agrees not to, and shall take reasonable
steps to ensure that the Custodian and each of its nominees, if any, do not,
vote the Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by a Receipt other than in accordance with such
instructions from the Holder or as provided below. The Depositary may not itself
exercise any voting discretion over any Shares. If the Depositary does not
receive instructions from a Holder on or before the date established by the
Depositary for such purpose, such Holder shall be deemed, and the Depositary
shall deem such Holder, to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company to vote the Deposited
Securities; provided that (y) no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary that (i)
the Company does not wish such proxy to be given, (ii) substantial opposition
exists or (iii) the rights of holders of Shares will be adversely affected and
(x) the Depositary shall not have any obligation to give such discretionary
proxy to a person designated by the Company if (i) the Company shall not have
delivered to the Depositary the local counsel opinion and the representation and
indemnity letter described in the next paragraph and (ii) the person designated
to receive the discretionary proxy shall not have delivered to the Depositary an
undertaking stating that such person shall not exercise the rights granted to
such person pursuant to the terms of such proxy in contravention of the
provisions of sub paragraph (x) above.
Prior to
requesting the delivery of a discretionary proxy upon the terms set forth
herein, the Company shall deliver to the Depositary (a) an opinion of the
Company's local counsel (of recognized standing in such country and reasonably
satisfactory to the Depositary) at the expense of the Company stating that (i)
such action does not violate any local laws and (ii) nothing in the proxy
materials indicates any matter which under local law would be deemed to
adversely affect the rights of the holders of Shares and (b) a representation
and indemnity letter from the Company (executed by a senior officer of the
Company) (i) designating the person to whom any discretionary proxy should be
given, (ii) confirming that the Company wishes such discretionary proxy to be
given, (iii) certifying that the Company has not and shall not request the
discretionary proxy to be given as to any matter as to which substantial
opposition exists or which may adversely affect the rights of holders of Shares
or other Deposited Securities and (iv) agreeing to indemnify the Depositary and
the Custodian and their respective officers, directors and employees against,
and hold each of them harmless from, any liability or expense (including fees
and disbursements of counsel) which may arise out of or in connection with any
action of the Depositary or the Custodian in granting such discretionary
proxy.
If, at
the time of a vote, for any reason the standing instructions deemed given herein
would not be valid and binding on the Holders, or the Depositary is unable to
obtain the legal opinion or the representation and indemnity letter above, the
Depositary shall not vote the Shares or other Deposited Securities as to which
specific instructions have not been received.
27
(c) Legal
Prohibitions. Notwithstanding anything else contained in this Agreement, the
Depositary shall not have any obligation to take any action with respect to any
meeting of holders of Shares or other Deposited Securities if the taking of such
action violates U.S. laws. The Issuer agrees to take any and all actions
reasonably necessary to enable Holders and Beneficial Owners to exercise the
voting rights accruing to the Shares or other Deposited Securities and to
deliver to the Depositary an opinion of Issuer's U.S. counsel addressing any
actions requested to be taken if requested by the Depositary.
SECTION
4.11 Changes
Affecting Deposited Securities. Upon any change in nominal or par value,
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. The Depositary may, subject to the terms of the Deposit Agreement
and receipt of an opinion of counsel to the Company reasonably satisfactory to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as 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 Exhibit A hereto, specifically describing such new Deposited
Securities or corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes, in each
case, to the extent permitted by the provisions of this Agreement) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
28
SECTION
4.12 Available
Information. The Company publishes information in English required to
maintain the exemption from registration under Rule 12g3-2(b) under the
Securities Exchange Act of 1934 on its Internet Web site (xxxxx.xxx.xxx) or
through an electronic information delivery system generally available to the
public in its primary trading market. The Depositary does not assume any duty to
determine if the Company is complying with the current requirements
of Rule 12g3-2(b) under the Securities Exchange Act of 1934 or to take any
action if the Company is not complying with those requirements.
SECTION
4.13 Reports.
The Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall also mail to Holders copies of
such reports when furnished by the Company pursuant to Section 5.6.
SECTION
4.14 List
of Holders. Promptly upon written request by the Company, the Depositary
shall furnish to it a list, as of a recent date, of the names, addresses and
holdings of American Depositary Shares of all Holders.
SECTION
4.15 Taxation.
The Depositary will, and will instruct the Custodian to, forward to the Company
or its agents such information from its records as the Company may reasonably
request to enable the Company or its agents to file the necessary tax reports
with governmental authorities or agencies. The Depositary, the Custodian or the
Company and its agents may file such reports as are necessary to reduce or
eliminate applicable taxes on dividends and on other distributions in respect of
Deposited Securities under applicable tax treaties or laws for the Holders and
Beneficial Owners. In accordance with instructions from the Company and to the
extent practicable, the Depositary or the Custodian will take reasonable
administrative actions to obtain tax refunds, reduced withholding of tax at
source on dividends and other benefits under applicable tax treaties or laws
with respect to dividends and other distributions on the Deposited Securities.
Holders and Beneficial Owners of American Depositary Shares may be required from
time to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may reasonably deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
29
If the
Company (or any of its agents) withholds from any distribution any amount on
account of taxes or governmental charges, or pays any other tax in respect of
such distribution (i.e., stamp duty tax, capital gains or other similar tax),
the Company shall (and shall cause such agent to) remit promptly to the
Depositary information about such taxes or governmental charges withheld or
paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non U.S. tax
paid against such Holder's or Beneficial Owner's income tax
liability.
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The Depositary shall
not incur any liability for any tax consequences that may be incurred by Holders
and Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the
Company (or any of its subsidiaries) being treated as a "Foreign Personal
Holding Company," or as a "Passive Foreign Investment Company" (in each case as
defined in the U.S. Internal Revenue Code and the regulations issued thereunder)
or otherwise.
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Registrar. Until termination of this
Deposit Agreement in accordance with its terms, the Registrar shall maintain in
the Borough of Manhattan, the City of New York, an office and facilities for the
execution and delivery, registration, registration of transfers, combination and
split-up of Receipts, the surrender of Receipts and the delivery and withdrawal
of Deposited Securities in accordance with the provisions of this Deposit
Agreement.
The Registrar shall keep books for the,
registration of Receipts 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 this Deposit Agreement or the Receipts. 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 Section 7.8 hereof.
30
If any Receipts or the American
Depositary Shares evidenced thereby are listed on one or more stock exchanges or
automated quotation systems in the United States, the Depositary shall act as
Registrar or, after consultation with the Company, appoint a Registrar or one or
more co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed and
a substitute or substitutes appointed by the Depositary.
SECTION
5.2 Exoneration.
Neither the Depositary nor the Company shall be obligated to do or perform any
act which is inconsistent with the provisions of this Deposit Agreement or incur
any liability (i) if the Depositary or the Company shall be prevented or
forbidden from, or delayed in, doing or performing any act or thing required by
the terms of this Deposit Agreement, by reason of any provision of any present
or future law, rule, regulation, fiat, order or decree of the United States, The
Netherlands or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war,
terrorism 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 this Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or Beneficial Owners for any indirect, special, punitive or
consequential damages.
No
disclaimer of liability under the Securities Act is intended by any provision of
this Deposit Agreement.
SECTION
5.3 Standard
of Care. The Company and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Company and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without gross negligence or willful misconduct.
31
The
Depositary and its agents assume no obligation and shall not be subject to any
liability under this Deposit Agreement or the Receipts to Holders or Beneficial
Owners or other persons, except that the Depositary and its agents agree to
perform their obligations specifically set forth in this Deposit Agreement
without gross negligence or willful misconduct.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote. 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 this Deposit Agreement
or for the failure or timeliness of any notice from the Company.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any Receipt, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder(s) or Beneficial Owner(s), any Receipt or Receipts or
otherwise related hereto to the extent such information is requested or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities or
other regulators.
SECTION
5.4 Resignation
and Removal of the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder by written notice of
resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 60th day after delivery thereof to the Company (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.
32
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the earlier of (i) the 60th day
after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall be required by the
Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due to it and on the written request of the Company shall, (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in Sections 5.08 and
5.09), (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 mail notice of its
appointment to such Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION
5.5 The
Custodian. The Depositary, after consultation with the Company, may from
time to time appoint one or more custodians hereunder. The Depositary has
initially appointed ING Bank as Custodian for the purpose of this
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and no other Custodian has
previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian. The Depositary shall require such resigning or discharged
Custodian to deliver the Deposited Securities held by it, together with all such
records maintained by it as Custodian with respect to such Deposited Securities
as the Depositary may request, to the Custodian designated by the Depositary.
Whenever the Depositary determines, in its discretion, that it is appropriate to
do so, it may appoint an additional custodian with respect to any Deposited
Securities, or discharge the Custodian with respect to any Deposited Securities
and appoint a substitute custodian, which shall thereafter be Custodian
hereunder with respect to such Deposited Securities. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all Holders of
Receipts, each other Custodian and the Company.
33
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing, and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on
the direction of such successor depositary.
SECTION
5.6 Notices
and Reports. On or before the first date on which the Company gives
notice, by publication or otherwise, of any meeting of holders of Shares or
other Deposited Securities, or of any adjourned meeting of such holders, or of
the taking of any action by such holders other than at a meeting, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The
Company will also transmit to the Depositary an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities The Depositary shall arrange, at the request of the Company and at
the Company's expense, for the mailing of copies thereof to all Holders or make
such notices, reports and other communications available to all Holders on a
basis similar to that for holders of Shares or other Deposited Securities or on
such other basis as the Company may advise the Depositary or as may be required
by any applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the Company's Articles
of Association along with the provisions of or governing the Shares and any
other Deposited Securities issued by the Company or any Affiliate of the Company
in connection with such Shares, and promptly upon any amendment thereto or
change therein, the Company shall deliver to the Depositary and the Custodian a
copy of such amendment thereto or change therein. The Depositary may rely upon
such copy for all purposes of this Deposit Agreement.
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications and other documentation referred to in
the previous paragraph issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares at the Depositary's Principal Office, at the
office of the Custodian and at any other designated transfer
office.
34
SECTION
5.7 Issuance
of Additional Shares, ADSs, etc. The Company agrees that in the event it
or any of its Affiliates proposes (i) an issuance, sale or distribution of
additional Shares, (ii) an offering of rights to subscribe for Shares or other
Deposited Securities, (iii) an issuance of securities convertible into or
exchangeable for Shares, (iv) an issuance of rights to subscribe for securities
convertible into or exchangeable for Shares, (v) an elective dividend of cash
or. Shares, (vi) a redemption of Deposited' Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to Holders
and Beneficial Owners does not violate the registration provisions of the
Securities Act, or any other applicable laws (including, without limitation, the
Investment Company Act of 1940, as amended, the Exchange Act or the securities
laws of the states of the United States). In support of the foregoing, the
Company will furnish to the Depositary (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether or not application
of such transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of Dutch
counsel (which may be in-house counsel to the Company) stating that (1) making
the transaction available to Holders and Beneficial Owners does not violate the
law of The Netherlands and (2) all requisite regulatory consents and approvals
have been obtained in The Netherlands. If the filing of a registration statement
is required, the Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably satisfactory to it
that such registration statement has been declared effective. If, being advised
by counsel, the Company determines that a transaction is required to be
registered under the Securities Act, the Company will either (i) register such
transaction to the extent necessary, (ii) alter the terms of the transaction to
avoid the registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The
Company agrees with the Depositary that the Company will not at any time (i)
deposit any Shares or other Deposited Securities, either upon original issuance
or upon a sale of Shares or other Deposited Securities previously issued and
reacquired by the Company, or (ii) issue additional Shares, rights to subscribe
for such Shares, securities convertible into or exchangeable for Shares or
rights to subscribe for such securities, unless such transaction and the
securities issuable in such transaction are exempt from registration under the
Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
SECTION
5.8 Indemnification.
The Depositary agrees to indemnify the Company against, and hold it harmless
from, any direct loss, liability, tax, charge or expense of any kind whatsoever
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary under the
terms hereof due to the negligence or bad faith of the Depositary.
35
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of acts performed or
omitted in connection with any offer, issuance, sale, resale, transfer, deposit
or withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be or any offering documents in respect
thereof or (b) out of acts performed or omitted, including, but not limited to,
any delivery by the Depositary on behalf of the Company of information regarding
the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, in either
such case (i) by the Depositary, the Custodian or any of their respective
directors, officers, employees, agents and Affiliates, except to the extent such
loss, liability, tax, charge or expense is due to the negligence or bad faith of
any of them, or (ii) by the Company or any of its directors, officers,
employees, agents and Affiliates, except to the extent that such liability or
expense arises out of information (or omissions from information) relating to
the Depositary or to any Custodian or any of their agents, as the case may be,
furnished in a signed writing to the Company by the Depositary expressly for use
in any registration statement, proxy statement, prospectus (or placement
memorandum), or preliminary prospectus (or preliminary placement memorandum) or
any other document relating to the ADRs evidencing the ADSs.
Notwithstanding
any other provision of this Deposit Agreement or the Receipts to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other for any indirect, special, punitive or consequential damages
(collectively "Special Damages") except (i) to the extent such Special Damages
arise from the gross negligence or willful misconduct of the party from whom
indemnification is sought or (ii) to the extent Special Damages arise from or
out of a claim brought by a third party (including, without limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of the gross negligence or willful misconduct of the party seeking
indemnification hereunder
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
Any
person seeking indemnification hereunder (an "indemnified person") shall notify
the person from whom it is seeking indemnification (the "indemnifying person")
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person's rights to
seek indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or settle any
action or claim that may give rise to an indemnity hereunder without the consent
of the indemnifying person, which consent shall not be unreasonably
withheld.
36
SECTION
5.9 Fees
and Charges of Depositary. The Holders and the Beneficial Owners agree to
pay to the Depositary the Depositary's fees identified as payable by them
respectively on the Fee Schedule attached hereto as Exhibit B. In addition,
Holders and Beneficial Owners and persons depositing Shares (other than the
Company) shall be required to pay (to the extent applicable) the following
charges: (i) taxes (including applicable interest and penalties) and other
governmental charges, (ii) such registration fees as may from time to time be in
effect for the registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited Securities to
or from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals of Deposited Securities, (iii) such cable,
telex and facsimile transmission and delivery expenses as are expressly provided
in the Deposit Agreement to be at the expense of the person depositing Shares or
Holders and Beneficial Owners of ADSs, (iv) the expenses and charges incurred by
the Depositary in the conversion of foreign currency, (v) such fees and expenses
as are incurred by the Depositary in connection with compliance with exchange
control regulations, and (vi) the fees and expenses incurred by the Depositary
in connection with the delivery of Deposited Securities.
The
Company agrees to promptly pay to the Depositary such other fees and charges and
to reimburse the Depositary for such out-of-pocket expenses as the Depositary
and the Company may agree to in writing from time to time. Responsibility for
payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described in
Section 5.4 hereof, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
37
SECTION
5.10 Pre-Release.
Subject to the further terms and provisions of this Section 5.10, the
Depositary, its Affiliates and their agents, on their own behalf, may own and
deal in any class of securities of the Company and its Affiliates and in ADSs.
In its capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may (i) issue Receipts prior to the
receipt of Shares pursuant to Section 2.2 and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.5, including Receipts
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 Receipts in lieu of Shares under (i) above and receive Shares in lieu of
Receipts under (ii) above. Each such Pre-Release Transaction will be (a) subject
to a written agreement whereby the person or entity (the "Applicant") to whom
Receipts 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
Receipts 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
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts, and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
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
Receipts and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1 Amendment/Supplement.
The Receipts outstanding at any time, the provisions of this Deposit Agreement
and the form of Receipt attached thereto and to be issued under the terms
thereof may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding 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 American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or
Shares 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
American Depositary Share or Shares, to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended and 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 amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the 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, rules
or regulations.
38
SECTION
6.2 Termination.
The Depositary shall, at any time at the written direction of the Company,
terminate this 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. If 60 days shall have expired after
(i) the Depositary shall have delivered to the Company a written notice of its
election to resign, or (ii) the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4, the Depositary may terminate this 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 for such termination. On
and after the date of termination of this Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Section 2.7 and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of this 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 this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for 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 this 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 this 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 of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
American Depositary Shares, except to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of 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 this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6
hereof.
39
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of such counterparts together shall
constitute one and the same agreement. Copies of this Deposit Agreement shall be
maintained with the Depositary and shall be open to inspection by any Holder
during business hours.
SECTION
7.2 No
Third-Party Beneficiaries. This Deposit Agreement is for the exclusive
benefit of the parties hereto (and their successors) and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person, except to the extent specifically set forth in this Deposit Agreement.
Nothing in this Deposit Agreement shall be deemed to give rise to a partnership
or joint venture among the parties nor establish a fiduciary or similar
relationship among the parties. The parties hereto acknowledge and agree that
(i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, or (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
SECTION
7.3 Severability.
In case any one or more of the provisions contained in this Deposit Agreement or
in the Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Holders
and Beneficial Owners as Parties; Binding Effect. The Holders and
Beneficial Owners from time to time of American Depositary Shares shall be
parties to the Deposit Agreement and shall be bound by all of the terms and
conditions thereof and of any Receipt by acceptance thereof of any beneficial
interest therein. Each Holder and Beneficial Owner, upon acceptance of any
American Depositary Share (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 the applicable Receipt(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
Receipt(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 Receipt(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
40
SECTION
7.5 Notices.
Any and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter, addressed to Neptunusstraat, 2132
JA Hoofddorp, The Netherlands, Attention: Company Secretary, or to any other
address which the Company may specify in writing to the Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter, addressed to JPMorgan Chase Bank,
N.A., 4 New York Plaza, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR Department, or to any other
address which the Depositary may specify in writing to the Company.
Any and
all notices to be given to the Custodian shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or cable, telex
or facsimile transmission, confirmed by letter, addressed to Xxxxxxxxxxxx 000,
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx or to any other address which the
Custodian may specify in writing to the Depositary.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex or facsimile transmission,
confirmed by letter, addressed to such Holder at the address of such Holder as
it appears on the transfer books for Receipts of the Depositary, or, if such
Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement. Delivery of a
notice sent by mail, air courier or cable, telex or facsimile transmission shall
be deemed to be effective at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is deposited, postage prepaid, in a post-office letter box or
delivered to an air courier service. The Depositary or the Company may, however,
act upon any cable, telex or facsimile transmission received by it from the
other or from any Holder, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as
aforesaid.
41
SECTION
7.6 Governing
Law and Jurisdiction. This Deposit Agreement and the Receipts shall be
interpreted in accordance with, and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, the laws of the State of New
York without reference to the principles of choice of law thereof. The Company
irrevocably agrees that any legal suit, action or proceeding against the Company
brought by the Depositary or any Holder, arising out of or based upon this
Deposit Agreement or the transactions contemplated hereby, may be instituted in
any state or federal court in New York, New York, and irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. The Company also irrevocably
agrees that any legal suit, action or proceeding against the Depositary brought
by the Company, arising out of or based upon this Deposit Agreement or the
transactions contemplated hereby, may only be instituted in a state or federal
court in New York, New York. The Company has appointed TNT Skypak Inc. now at
200 Garden City, 0xx Xxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx, 00000, as its
authorized agent (the "Authorized Agent") upon which process may be served in
any such action arising out of or based on this Deposit Agreement or the
transactions contemplated hereby which may be instituted in any state or federal
court in New York, New York by the Depositary or any Holder, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. The Company represents and warrants that the Authorized
Agent has agreed to act as said agent for service of process, and the Company
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company. If, for any reason, the
Authorized Agent named above or its successor shall no longer serve as agent of
the Company to receive service of process in New York, the Company shall
promptly appoint a successor acceptable to the Depositary, so as to serve and
will promptly advise the Depositary thereof. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by the
Depositary in any competent court in the Netherlands.
To the
extent that the Company or any of its properties, assets or revenues may have or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
42
No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
The
provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.7 Assignment.
Subject to the provisions of Section 5.4 hereof, this Deposit Agreement may not
be assigned by either the Company or the Depositary.
SECTION
7.8 Compliance
with U.S. Securities Laws. Notwithstanding anything in this Deposit
Agreement to the contrary, the withdrawal or delivery of Deposited Securities
will not be suspended by the Company or the Depositary except as would be
permitted by Instruction I.A.(l) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities
Act.
SECTION
7.9 Titles.
All references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of this Deposit Agreement unless expressly
provided otherwise. The words "this Deposit Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to the Deposit
Agreement as a whole as in effect between the Company, the Depositary and the
Holders and Beneficial Owners of ADSs and not to any particular subdivision
unless expressly so limited. Pronouns in masculine, feminine and neuter gender
shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the context
otherwise requires. Titles to sections of this Deposit Agreement are included
for convenience only and shall be disregarded in construing the language
contained in this Deposit Agreement.
43
IN
WITNESS WHEREOF, TNT POST GROUP N.V. and JPMORGAN CHASE BANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof.
TNT
N.V.
|
|
By:
|
|
Name:
|
|
Title:
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
By:
|
|
Name:
|
|
Title:
|
44
Number
CUSIP
Number
American
Depositary
Shares
(Each American Depositary Share
representing
one
fully
paid ordinary share)
EXHIBIT
A
[FORM OF
FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
TNT N.V.
(Incorporated
under the laws of The Netherlands)
JPMORGAN
CHASE BANK, 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 (hereinafter "ADS"), representing deposited ordinary shares, including
evidence of rights to receive such ordinary shares (the "Shares") of TNT N.V., a
corporation incorporated under the laws of The Netherlands (the "Company"). As
of the date of the Deposit Agreement (hereinafter referred to), each ADS
represents one Share deposited under the Deposit Agreement with the Custodian
under the Deposit Agreement (the "Custodian"). The ratio of
Depositary Shares to shares of stock is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's Principal
Office is located at 4 New York Plaza, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(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 February , 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 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 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 the
Custodian.
A-1
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 Deposit Agreement) and are qualified by
and subject to the detailed provisions of the Deposit Agreement, 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 American Depositary Shares into DTC. Each Beneficial Owner
of American Depositary Shares 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 American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name of a
nominee of DTC. So long as the American Depositary Shares are held through DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained by
(i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
(2)
Surrender of Receipts and Withdrawal of Deposited Securities. Upon surrender, at
the Principal Office of the Depositary, of ADS evidenced by this Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the charges of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth in Article (10) hereof and in Section
5.09 and Exhibit B of the Deposit Agreement) and (ii) all fees, taxes and
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement the Company's
Articles of Association, Section 7.8 of the Deposit Agreement, Article (24) of
this Receipt and the provisions of or governing the Deposited Securities and
other applicable laws, the Holder of the American Depositary Shares evidenced
hereby is entitled to delivery, to him or upon his order, to a specified account
in NECIGEF or, if for any reason delivery by such means is not available, by
physical delivery at the designated office of the Custodian of the Deposited
Securities represented by the ADS so surrendered. Subject to the last sentence
of this paragraph, such Deposited Securities may be delivered in registered form
or by electronic delivery. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in
registered form) or by book-entry delivery to a specified account in DTC of such
ADS to the Depositary.
A-2
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) to a
specified account in NECIGEF or, if for any reason delivery by such means is not
available, by physical delivery at the designated office of the Custodian,
subject to the terms and conditions of the Deposit Agreement, the Articles of
Association of the Company, and the provisions of or governing the Deposited
Securities and applicable laws, now or hereafter in effect, to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as provided above, evidence of the electronic transfer (if available)
of the Deposited Securities represented by such ADSs together with any
certificate or other proper documents of or relating to title of such
securities, property or cash. If electronic transfer is unavailable for the
Shares or any other securities, property or cash to which the holder is
entitled, physical delivery may be made by the delivery of the securities,
property, or cash for which electronic delivery is unavailable. The Depositary
may make delivery to such person or persons at the Principal Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by such Receipt, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by the
Depositary.
The
Depositary shall not accept for surrender a Receipt evidencing ADSs representing
less than one Share. The Depositary may, in its discretion, refuse to accept for
surrender a number of American Depositary Shares representing a number of Shares
other than a whole number of Shares. In the case of surrender of a Receipt
evidencing a number of ADS 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) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt so surrendered and remit the proceeds thereof
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the Receipt. At
the request, risk and expense of any Holder so surrendering a 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 in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3)
Transfers, Split-Ups and Combinations of Receipts. Subject to the terms and
conditions of the Deposit Agreement, the Registrar shall register transfers of
Receipts on its book upon surrender at the Principal Office of the Depositary of
a Receipt by the Holder thereof in person or by duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard industry practice) and duly
stamped as may be required by the laws of the State of New York and of the
United States of America. Subject to the terms and conditions of the Deposit
Agreement including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and if
necessary cause the Registrar to countersign such Receipt(s)) and deliver same
to or upon the order of the person entitled to such Receipts evidencing the same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts and upon payment of the applicable fees
and charges of the Depositary subject to the terms and conditions of this
Deposit Agreement the Depositary shall execute and deliver, a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts
surrendered.
A-3
(4)
Pre-Conditions to Registration, Transfer, Etc. 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 (i) payment from the depositor of Shares
or presenter of the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof reasonably satisfactory to it as to the identity and
genuineness of any signature or any other matters and (iii) compliance with (A)
any laws or governmental regulations relating to the execution and delivery of
Receipts and ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations of the Depositary or the Company consistent with the
Deposit Agreement and applicable law.
The
delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares 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 transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Company, Depositary or a 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 Receipts or Share are listed, or under any provision of
the Deposit Agreement or provisions of, or governing, the Deposited Securities
or any 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 to the contrary, the surrender of outstanding ADS evidenced by
Receipts and withdrawal of Deposited Securities may not be suspended except as
required in General Instructions I.A.(l) to Form F-6 (as such instructions may
be amended from time to time) in connection with (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
A-4
(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
Netherlands law, the rules and requirements of the New York Stock Exchange, Inc.
the Amsterdam Stock Exchange and the Articles of Association of the Company,
which are made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs and regarding the identity of any other persons then
or previously interested in such ADSs and the nature of such interest and
various other matters whether or not they are Holders and/or Beneficial Owner at
the time of such request. The Depositary agrees to use reasonable efforts to
comply with written instructions received from the Company requesting the
Depositary to forward any such requests to the Holders and to forward to the
Company any such responses to such requests received by the
Depositary.
(6)
Ownership Restrictions. The Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits under
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder to exceed any such limits. The Company reserves the
right to instruct Holders to deliver their ADSs for cancellation and withdrawal
of the Deposited Securities so as to permit the Company to deal directly with
the Holder thereof as a holder of Shares and Holders agree to comply with such
instructions. The Depositary agrees to cooperate with the
Company in its efforts to inform Holders of the Company's exercise of its rights
under this paragraph and agrees to consult with, and provide reasonable
assistance without risk, liability or expense on the part of the Depositary, to
the Company on the manner or manners in which it may enforce such rights with
respect to any Holder.
(7)
Liability of Holder for Taxes, Duties and Other Charges. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities or ADSs, such tax, or other governmental charge 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 the 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 Receipts,
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. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non U.S. tax
paid against such Holder's or Beneficial Owner's income tax
liability.
A-5
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The Depositary shall
not incur any liability for any tax consequences that may be incurred by Holders
and Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the
Company (or any of its subsidiaries) being treated as a "Foreign Personal
Holding Company," or as a "Passive Foreign Investment Company" (in each case as
defined in the U.S. Internal Revenue Code and the regulations issued thereunder)
or otherwise.
(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 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 and (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities and
have not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance,
cancellation and transfer of depositary shares. 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, 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 or other
information as the Depositary or the Custodian may reasonably 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. Subject
to Article (24) hereof and the terms of the Deposit Agreement, the Depositary
and the Registrar, as applicable, may withhold the 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 the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made or such
information and documentation are provided. Holders and Beneficial Owners
acknowledge that, under the Dutch Act on the Disclosure of Holdings in Listed
Companies, shareholders must promptly notify the Company and The Netherlands
Securities Investment Board if their holding reaches, exceeds or falls below 5%,
10%, 25%, 50% or 66-2/3% of the capital interest and/or voting rights in the
Company and agree to comply with such notification
requirements.
A-6
(10)
Charges of Depositary. The Depositary shall charge fees for receiving deposits
and issuing Receipts, for delivering deposited Shares against surrender of
Receipts, for transfer of Receipts, for splits and combination of Receipts, for
distribution of dividends, for sales or exercise of rights or for other services
performed upon the terms set forth in the Deposit Agreement. The Depositary and
the Company reserve the right to modify, reduce or increase any fees or charges
for services performed. The Depositary shall charge any party to whom Receipts
are issued (including, without limitation, deposit or issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
for the Shares or Deposited Securities, or a distribution of Receipts pursuant
to Section 4.03 or 4.11 of the Deposit Agreement), or who surrenders Receipts a
fee of U.S.$5.00 or less per 100 American Depositary Shares (or portion thereof)
for the issuance or surrender, respectively, of a Receipt. In addition the
Depositary shall charge to the Holders a fee of U.S.$2.00 or less per 100
American Depositary Shares (or portion thereof) for each and any cash
distribution made pursuant to the Deposit Agreement, including but not limited
to, Sections 4.02 through 4.05 thereof, and $5.00 or less per 100 American
Depositary Shares (or portion thereof) in case of stock dividend, made pursuant
to the Deposit Agreement including, but not limited to Section 4.02 through 4.05
thereof. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. In addition, Holders, Beneficial Owners, and
persons depositing Shares (other than the Company) will be requested to pay
taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement. 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 concerning the nature and amount of such charges and
expenses. All fees and charges may at any time and from time to time be changed
by agreement between the Company and the Depositary. The charges and expenses of
the Custodian, nominee or any other agent of the Depositary are for the sole
account of the Depositary. The provisions in respect of these charges may be
changed in the manner indicated in Article (22) of this Receipt.
(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), when properly
endorsed or accompanied by proper instruments of transfer, is transferable by
delivery with the same effect as in the case of a negotiable instrument under
the laws of the State of New York; provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for all purposes, and neither the Depositary nor the
Company shall have the obligations or be subject to any liability hereunder or
under the Deposit Agreement to any holder of a Receipt unless such holder is the
Holder (that is, the person) registered on the books of the
Depositary.
A-7
(12)
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 has been executed by the Depositary by the manual signature of a duly
authorized officer of the Depositary; provided, however, that such signature may
be a facsimile if a Registrar has been appointed and this Receipt has been
countersigned by the manual signature of a duly authorized officer of the
Registrar.
(13)
Available Information; Reports; Inspection of Transfer Books. The Company
publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934 on
its Internet Web site (xxxxx.xxx.xxx) or through an electronic information
delivery system generally available to the public in its primary trading market.
The Depositary does not assume any duty to determine if the
Company is complying with the current requirements of Rule 12g3-2(b)
under the Securities Exchange Act of 1934 or to take any action if the Company
is not complying with those requirements. The Registrar shall keep books for the
registration of Receipts 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 this Deposit Agreement or the Receipts.
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.
Dated:
|
JPMORGAN CHASE BANK, , N.A., | ||||
as
Depositary
|
|||||
Countersigned
|
|||||
By:
|
By:
|
||||
Authorized
Officer
|
Vice
President
|
The
address of the Principal Office of the Depositary is 4 New York Plaza, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-8
[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 Shares, rights securities or other entitlements under the
Deposit Agreement, the Depositary will, if at the time of receipt thereof any
amounts received in a foreign currency can, in the reasonable 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 dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of any
applicable fees and charges of, and expenses incurred by, the Depositary and
taxes withheld, in each case, to the extent permitted by the provisions of the
Deposit Agreement) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADS representing such Deposited Securities 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. Fractional cents will be withheld without liability and
dealt with by the Depositary in accordance with its then current practices. 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. Any foreign
currency received by the Depositary shall be converted upon the terms and
conditions set forth in the Deposit Agreement.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with and registered, as the case may be, in the name of the Depositary, the
Custodian or their nominees upon receipt of confirmation of such deposit, the
Depositary shall, subject to and in accordance with the Deposit Agreement,
establish the ADS Record Date and either (i) 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 this
Deposit Agreement (including, without limitation, the applicable fees and
charges of, and expenses incurred by, the Depositary and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement) 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 Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement.
A-9
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 reasonably deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of taxes and fees
and charges of, and expenses incurred by, the Depositary, in each case, to the
extent permitted by the provisions of the Deposit Agreement) to Holders entitled
thereto upon the terms of the Deposit Agreement. The Depositary shall hold
and/or distribute any unsold balance of such property in accordance with the
provisions of the Deposit Agreement.
Upon
receipt of notice indicating that the Company wishes an elective distribution to
be made available to Holders of ADSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such
elective distribution available to the Holders of ADSs upon the terms described
in the Deposit Agreement.
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares (or any rights of any other nature) 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 the Company shall have requested that such
rights be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date and establish procedures to distribute such
rights (by means of warrants or otherwise) to enable the Holders to exercise the
rights (upon payment of the applicable fees and charges of, and expenses
incurred by, the Depositary and taxes). Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise such 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 that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may reasonably deem proper. The Depositary shall, upon
such sale, convert and distribute proceeds of such sale (net of applicable fees
and charges of, and expenses 'incurred by, the Depositary and taxes, in each
case, to the extent permitted by the provisions of the Deposit Agreement) upon
the terms hereof and in 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 feasible 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.
A-10
Notwithstanding
anything herein 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 unless and until a
registration statement under the Securities Act covering such offering is in
effect. 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 Receipts evidencing 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 reasonably deems necessary and practicable to
pay any such taxes or charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein 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.
The
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of ADSs. Upon
receipt of a notice indicating that the Company wishes property other than cash,
Shares or rights to purchase additional Shares, to be made to Holders of ADSs,
the Depositary shall determine whether such distribution to Holders is lawful
and reasonably practicable. The Depositary shall not make such distribution
unless (i) the Company shall have requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld, in each case,
to the extent permitted by the provisions of the Deposit Agreement. 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 reasonably deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
A-11
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 reasonably 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 (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes, in each case, to the extent permitted by the provisions of the Deposit
Agreement) to the Holders upon the terms hereof. If the Depositary is unable to
sell such property, the Depositary may dispose of such property in any way it
deems reasonably practicable under the circumstances. Any benefit received upon
such disposition should be for the benefit of the Holders.
(15)
Redemption. Upon 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, the Depositary shall mail 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 fees and charges
of, and expenses incurred by, the Depositary, and taxes, in each case, to the
extent permitted by the provisions of the Deposit Agreement) 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.
(16)
Fixing of 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, 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 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 (including setting the record date for
Holders responsible for any fees and/or charges assessed by the Depositary
pursuant to this Deposit Agreement), the Depositary shall, after consultation
with the Company, 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 the terms and
conditions of this Receipt and the Deposit Agreement, the Holders of Receipts at
the close of business on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action or for determining those Holders
responsible for any fees and/or charges assessed by the Depositary pursuant to
this Deposit Agreement.
A-12
(17)
Voting of Deposited Securities.
ADS
Voting Instructions. As soon as practicable after receipt of notice pursuant to
Section 5.6 of the Deposit Agreement of any meeting of holders of Shares or
other Deposited Securities. The Depositary shall fix a record date for
determining the Holders entitled to give instructions for the exercise of voting
rights as provided in Section 4.9 of the Deposit Agreement. The Depositary
shall, if requested in writing by the Company in a timely manner (which request
must be received by the Depositary at least 30 days prior to such meeting) and
provided no U.S. legal prohibitions exists, mail to the Holders of record a
notice which shall contain: (a) such information as is contained in such notice
of meeting, (b) a statement in English, in a form provided by the Company, that
the Holders of record at the close of business on a specified record date will
be entitled, subject to the terms of this Article, any applicable provisions of
Dutch law, the corporate charter and by-laws of the Company and the provisions
of or governing Deposited Securities (which provisions, if any, shall have been
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights pertaining to the number of Deposited
Securities represented by their respective Receipts and (c) a statement
addressing the manner in which such instructions may be given, including an
indication that instructions may be given (or may be deemed to have been given
in accordance with the last sentence of the next paragraph if no instructions
are received prior to the deadline set for such purposes) to the Depositary to
give a discretionary proxy to a person designated by the Company. In the event
the notice of meeting and request of the Company is not received by the
Depositary at least 30 days prior to the meeting, the Depositary shall not have
any obligation to notify the Holders and shall not vote or cause to be voted the
Deposited Securities. Upon the written request of a Holder on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as is practicable and permitted under
applicable law and the provisions of the corporate charter and by-laws of the
Company and the provisions of or governing the Deposited Securities, to vote or
cause to be voted the number of Deposited Securities represented by the American
Depositary Shares evidenced by the Holder's Receipt in accordance with the
instructions set forth in such request.
A-13
Discretionary
Proxy to Management. The Depositary agrees not to, and shall take reasonable
steps to ensure that the Custodian and each of its nominees, if any, do not,
vote the Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by a Receipt other than in accordance with such
instructions from the Holder or as provided below. The Depositary may not itself
exercise any voting discretion over any Shares. If the Depositary does not
receive instructions from a Holder on or before the date established by the
Depositary for such purpose, such Holder shall be deemed, and the Depositary
shall deem such Holder, to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company to vote the Deposited
Securities; provided that (y) no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary that (i)
the Company does not wish such proxy to be given, (ii) substantial opposition
exists or (iii) the rights of holders of Shares will be adversely affected and
(x) the Depositary shall not have any obligation to give such discretionary
proxy to a person designated by the Company if (i) the Company shall not have
delivered to the Depositary the local counsel opinion and the representation and
indemnity letter described in the next paragraph and (ii) the person designated
to receive the discretionary proxy shall not have delivered to the Depositary an
undertaking stating that such person shall not exercise the rights granted to
such person pursuant to the terms of such proxy in contravention of the
provisions of sub paragraph (x) above.
Prior to
requesting the delivery of a discretionary proxy upon the terms set forth
herein, the Company shall deliver to the Depositary (a) an opinion of the
Company's local counsel (of recognized standing in such country and reasonably
satisfactory to the Depositary) at the expense of the Company stating that (i)
such action does not violate any local laws and (ii) nothing in the proxy
materials indicates any matter which under local law would be deemed to
adversely affect the rights of the holders of Shares, and (b) a representation
and indemnity letter from the Company (executed by a senior officer of the
Company) (i) designating the person to whom any discretionary proxy should be
given, (ii) confirming that the Company wishes such discretionary proxy to be
given, (iii) certifying that the Company has not and shall not request the
discretionary proxy to be given as to any matter as to which substantial
opposition exists or which may adversely affect the rights of holders of Shares
or other Deposited Securities and (iv) agreeing to indemnify the Depositary and
the Custodian and their respective officers, directors and employees against,
and hold each of them harmless from, any liability or expense (including fees
and disbursements of counsel) which may arise out of or in connection with any
action of the Depositary or the Custodian in granting such discretionary
proxy.
If, at
the time of a vote, for any reason the standing instructions deemed given herein
would not be valid and binding on the Holders, or the Depositary is unable to
obtain the legal opinion or the representation and indemnity letter above, the
Depositary shall not vote the Shares or other Deposited Securities as to which
specific instructions have not been received.
Legal
Prohibitions. Notwithstanding anything else contained in the Deposit Agreement,
the Depositary shall not have any obligation to take any action with respect to
any meeting of holders of Shares or other Deposited Securities if the taking of
such action violates U.S. laws. The Issuer agrees to take any and all actions
reasonably necessary to enable Holders and Beneficial Owners to exercise the
voting rights accruing to the Shares or other Deposited Securities and to
deliver to the Depositary an opinion of Issuer's U.S. counsel addressing any
actions requested to be taken if requested by the Depositary.
A-14
(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 a Custodian in
exchange for, or in conversion of or replacement 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.
Alternatively, the Depositary may, subject to the terms of the
Deposit Agreement and receipt of reasonably satisfactory documentation
contemplated by the Deposit Agreement, execute and deliver additional Receipts
as 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 this
Receipt, 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, subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred by,
the Depositary and taxes, in each case, to the extent permitted by the
provisions of the Deposit Agreement) 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.
A-15
(19)
Exoneration. Neither the Depositary nor the Company shall be obligated to do or
perform any act which is inconsistent with the provisions of the Deposit
Agreement or incur any liability (i) if the Depositary, the Company or their
respective controlling persons or agents 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, rule, regulation, fiat, order or decree of the United States, The
Netherlands 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,
terrorism 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 this Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of 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, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties.
Notwithstanding anything to the contrary set forth in the Deposit Agreement or
any Receipt, the Depositary and its agents may fully respond to any and all
demands or requests for information maintained by or on its behalf in connection
with the Deposit Agreement, any Holder(s) or Beneficial Owner(s), any Receipt or
Receipts or otherwise related hereto to the extent such information is requested
or required by or pursuant to any lawful authority, including without limitation
laws, rules, regulations, administrative or judicial process, banking,
securities or other regulators. Neither the Company nor the
Depositary nor any of their respective agents shall be liable to Holders or
Beneficial Owners for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement.
(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 the Receipts to
Holders or Beneficial Owners or other persons, except that the Company and its
agents agree to perform their obligations specifically set forth in the Deposit
Agreement without gross negligence or willful misconduct. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without gross
negligence or willful misconduct. 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. 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.
A-16
(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 60th 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 60th day after
delivery thereof to the Depositary, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due to 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 mail 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. 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 of the Depositary in connection with
foreign exchange control regulations, and taxes and other governmental charges,
delivery and other such expenses), or which shall otherwise 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 or Shares 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 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, 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 amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the
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.
A-17
(23)
Termination. The Depositary shall, at any time at the written 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. If 60 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided in herein and in the Deposit Agreement, the Depositary
may 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 for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holders' ADSs 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 of
Receipts 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, Deposited Securities and
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of 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). 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.
A-18
(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.(1) 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 Receipts. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, 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 (each such
transaction a "Pre-Release Transaction"). The Depositary may receive Receipts in
lieu of Shares under (i) above and receive Shares in lieu of Receipts 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
Receipts 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
Receipts 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
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
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
Receipts 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).
A-19
(26)
APPOINTMENT. Each Holder and Beneficial Owner, upon acceptance of any American
Depositary Share (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 the applicable
Receipt(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 Receipt(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 Receipt(s), the
taking of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
A-20
(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.
|
SIGNATURE
GUARANTEED
|
A-21
EXHIBIT
B
FEE
SCHEDULE
DEPOSITARY
FEES AND RELATED CHARGES
All
capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Deposit Agreement.
I.
Depositary Fees
The Holders and Beneficial Owners agree
to pay the following fees of the Depositary:
Service
|
Rate
|
By
Whom Paid
|
||||
(1)
|
Issuance
of ADSs upon deposit of Shares (excluding issuances contemplated by
paragraphs (3)(b) and (5) below)
|
Up
to $5.00 per 100 ADSs (or fraction thereof) issued
|
Party
for whom deposits are made or party receiving ADSs
|
|||
(2)
|
Delivery
of Deposited Securities, property and cash against surrender of
ADSs
|
Up
to $5.00 per 100 ADSs (or fraction thereof) surrendered
|
Party
surrendering ADSs or making withdrawal.
|
|||
(3)
|
Distribution
of (a) cash dividend or (b) ADSs pursuant to stock dividends (or other
free distribution of stock).
|
No
fee, so long as prohibited by the exchange upon which the ADSs are
listed.
|
Party
to whom distribution is made.
|
|||
(4)
|
Distribution
of cash proceeds (i.e., upon sale of rights and other
entitlements).
|
Up
to $2.00 per 100 ADSs held per distribution.
|
Party
to whom distribution is made.
|
|||
(5)
|
Distribution
of ADSs pursuant to exercise of rights.
|
Up
to $5.00 per 100 ADSs issued.
|
Party
to whom distribution is
made.
|
II.
Charges. Holders and Beneficial Owners shall be responsible for the following
charges:
(i)
|
taxes
(including applicable interest and penalties) and other governmental
charges;
|
(ii)
|
such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
|
B-1
(iii)
|
such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing Shares or Holders and Beneficial Owners of
ADSs;
|
(iv)
|
the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
|
(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.
|
B-2