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ATLAS COPCO AB
AND
CITIBANK, N .A.,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
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Dated as of November 9, 1990
as amended and restated as of September 19, 1995
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TABLE OF CONTENTS
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Page
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Parties .................................................................... 1
Recitals ................................................................... 1
ARTICLE I
DEFINITIONS
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SECTION 1.01. Company ................................................... 1
SECTION 1.02. Depositary ................................................ 1
SECTION 1.03. Principal Office .......................................... 2
SECTION 1.04. Custodian; Custodians ..................................... 2
SECTION 1.05. Deposit Agreement ......................................... 2
SECTION 1.06. Class A Shares ............................................ 2
SECTION 1.07. Deposited Securities ...................................... 2
SECTION 1.08. Receipts .................................................. 2
SECTION 1.09. American Depositary Shares ................................ 3
SECTION 1.10. Holder .................................................... 3
SECTION 1.11. Registrar ................................................. 3
SECTION 1.12. Dollars; Kronor, Krona, SEK ............................... 3
SECTION 1.13. Securities Act of 1933 .................................... 3
SECTION 1.14. Securities Exchange Act of 1934 ........................... 3
SECTION 1.15. Commission ................................................ 3
SECTION 1.16. Sweden .................................................... 3
SECTION 1.17. VPC ....................................................... 4
SECTION 1.18. Nominee ................................................... 4
SECTION 1.19. Deposit, Surrender, Delivery .............................. 4
ARTICLE II
Form of Receipts,
Deposit of Class A shares,
Execution and Delivery
Transfer and Surrender of Receipts
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SECTION 2.01. Form and Transferability of Receipts ...................... 4
SECTION 2.02. Deposit of Class A Shares.................................. 5
SECTION 2.03. Execution and Delivery of Receipts ........................ 7
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts 8
SECTION 2.05. Surrender of Receipts and Withdrawal of Class A Shares .... 9
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Etc. of
Receipts; Suspension of Delivery, Transfer, Etc. .......... 10
SECTION 2.07. Lost Receipts, Etc. ....................................... 11
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts ...... 11
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ARTICLE III
Certain Obligations of
Holders of Receipts
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SECTION 3.01. Filing Proofs, Certificates and Other Information ......... 11
SECTION 3.02. Liability of Holder for Taxes ............................. 12
SECTION 3.03. Warranties on Deposit of Class A Shares ................... 12
ARTICLE IV
The Deposited Securities
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SECTION 4.01. Power of Attorney ......................................... 12
SECTION 4.02. Cash Distributions; Withholding ........................... 13
SECTION 4.03. Distributions Other than Cash or Class A Shares ........... 13
SECTION 4.04. Distributions in Class A Shares ........................... 14
SECTION 4.05. Rights .................................................... 15
SECTION 4.06. Conversion of Foreign Currency ............................ 16
SECTION 4.07. Fixing of Record Date ..................................... 17
SECTION 4.08. Voting of Deposited Securities ............................ 18
SECTION 4.09. Changes Affecting Deposited Securities .................... 19
SECTION 4.10. Available Information ..................................... 20
SECTION 4.11. Reports.................................................... 20
SECTION 4.12. Lists of Receipt Holders .................................. 21
SECTION 4.13. Withholding................................................ 21
ARTICLE V
The Depositary, the Custodians
and the Company
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SECTION 5.01. Maintenance of Office and Transfer
Books by the Depositary ................................. 21
SECTION 5.02. Prevention or Delay in Performance by
the Depositary or the Company ........................... 22
SECTION 5.03. Obligations of the Depositary,
the Custodian and the Company ........................... 23
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary ..................... 24
SECTION 5.05. Custodians ................................................ 25
SECTION 5.06. Notices and Reports ....................................... 25
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SECTION 5.07. Issuance and Additional Class A Shares, Etc. .............. 26
SECTION 5.08. Indemnification............................................ 27
SECTION 5.09. Charges of Depositary ..................................... 27
SECTION 5.10. Loans and Pre-Release of Shares and Receipts .............. 28
ARTICLE VI
Amendment and Termination
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SECTION 6.01. Amendment ................................................. 29
SECTION 6.02. Termination ............................................... 30
ARTICLE VII
Miscellaneous
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SECTION 7.01. Counterparts .............................................. 31
SECTION 7.02. No Third Party Beneficiaries .............................. 31
SECTION 7.03. Severability .............................................. 31
SECTION 7.04. Holders and Parties; Binding Effect ....................... 31
SECTION 7.05. Notices ................................................... 32
SECTION 7.06. Governing Law ............................................. 32
TESTIMONIUM ................................................................ 33
SIGNATURES ................................................................. 33
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EXHIBIT A
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FORM OF FACE OF RECEIPT
Introductory Paragraph .................................... 1
(1) The Deposit Agreement ............................ 2
(2) Surrender of Receipts and Withdrawal
of Class A Shares .............................. 2
(3) Transfers, Split - ups and
Combinations ................................... 3
(4) Liability of Holder for Taxes .................... 4
(5) Warranties by Depositor .......................... 4
(6) Charges of Depositary ............................ 5
(7) Title to Receipts ................................ 5
(8) Validity of Receipt .............................. 5
(9) Available Information ............................ 6
Signature of Depositary .................................. 6
Address of Principal Office .............................. 6
FORM OF REVERSE OF RECEIPT --
Summary of Certain Additional Provisions of the Deposit Agreement
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(10) Dividends and Distributions; Rights .............. 7
(11) Record Dates ..................................... 9
(12) Voting of Deposited Securities ................... 9
(13) Changes Affecting Deposited
Securities ................................... 10
(14) Reports, Inspection of Transfer
Books ........................................ 11
(15) Withholding ...................................... 11
(16) Liability of the Company and
Depositary ................................... 11
(17) Resignation and Removal of
Depositary; Substitution of
Custodian .................................... 12
(18) Amendment of Deposit Agreement and
Receipts ..................................... 13
(19) Termination of Deposit Agreement ................. 13
(20) Loans and Pre-Release of Shares
and Receipts ................................. 14
EXHIBIT B
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CHARGES OF THE DEPOSITARY ................................................. B-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of November 9, 1990 as amended and
restated as of September 19, 1995 among Atlas Copco AB, a corporation organized
and existing under the laws of Sweden (the "Company"), CITIBANK, N.A., a
national banking association organized under the laws of the United States of
America (the "Depositary"), and all Holders from time to time of American
Depositary Receipts issued hereunder.
WITNESSETH
WHEREAS, the Company desires to provide, for the deposit of Class A
Shares, SEK 5 par value per share ("Class A Shares"), of the Company from time
to time with the Depositary or with the Custodian(s), which at the date hereof
are Skandinaviska Enskilda Banken and Svenska Handelsbaken (the "Custodian"), as
agents of the Depositary for the purposes set forth in this Deposit Agreement,
for the creation of American Depositary Shares representing the Class A Shares
so deposited and for the execution and delivery of American Depositary Receipts
in respect of the American Depositary Shares.
NOW, THEREFORE, in consideration of the premises, the parties agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. Company. The term "Company" shall mean Atlas Copco AB,
a corporation organized and existing under the laws of Sweden, having its
registered office at X-00000 Xxxxxxxxx, Xxxxxx, and its successors.
SECTION 1.02. Depositary. The term "Depositary" shall mean Citibank,
N.A., a national banking association incorporated under the laws of the United
States of America, and any successor as depositary hereunder.
SECTION 1.03. Principal Office. The term "Principal Office", when
used with respect to the Depositary, shall be the principal office of the
Depositary at which at any particular time its corporate trust business shall be
administered, which, at the date of this Agreement, is located at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.04. Custodian; Custodians. The term "Custodian" shall
mean, as of the date hereof, Skandinaviska Enskilda Banken and Svenska
Handelsbanken as custodians and agents of the Depositary 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 5.05, as a substitute or an
additional custodian or custodians hereunder, as the context shall require and
the term "Custodian" shall mean all of them, collectively.
SECTION 1.05. Deposit Agreement. The term "Deposit Agreement" shall
mean this instrument as it may from time to time be amended in accordance with
the terms hereof and all instruments supplemental hereto.
SECTION 1.06. Class A Shares. The term "Class A Shares" shall mean
Class A Shares, SEK 5 par value per share, of the Company and shall include
evidence of rights to receive Class A Shares.
SECTION 1.07. Deposited Securities. The term "Deposited Securities"
as of any time shall mean Class A Shares at such time deposited under this
Deposit Agreement and any and all other securities, property and cash received
by the Depositary or the Custodian in respect thereof and at such time held
hereunder, subject in the case of cash to the provisions of Section 4.06.
SECTION 1.08. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares. A
Receipt may evidence any number of American Depositary Shares.
SECTION 1.09. American Depositary Shares. The term "American
Depositary Shares" shall mean the rights represented by the Receipts issued
hereunder and the interests in the Deposited Securities represented thereby. One
American Depositary Share shall represent one Class A Share, until there shall
occur a distribution upon Deposited Securities covered by Section 4.04 or a
change in Deposited Securities covered by Section 4.09 with respect to which
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall represent the Class A Shares or Deposited Securities
specified in such Sections.
SECTION 1.10. Holder. The term "Holder" shall mean the person in
whose name a Receipt is registered on the books of the Depositary maintained for
such purpose.
SECTION 1.11. Registrar. The term "Registrar" shall mean 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 Receipts and
transfers of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary, upon the request or with the approval of the
Company, for such purposes.
SECTION 1.12. Dollars; Kronor, Krona, SEK. The term "dollars" shall
mean United States dollars. The term "Kronor", "Krona" or "SEK" shall mean
Swedish kronor.
SECTION 1.13. Securities Act of 1933. The term "Securities Act of
1933" shall mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.14. Securities Exchange Act of 1934. The term "Securities
Exchange Act of 1934" shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION 1.15. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.16. Sweden. The term "Sweden" shall mean the Kingdom of
Sweden.
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SECTION 1.17. VPC. The term "VCP" shall mean Vardepapperscentralen
VPC Aktiebolag, a company organized under the Swedish Companies Act of 1975,
which carries out the duties of the registrar for nearly all Swedish companies
listed on the Stockholm Stock Exchange, including the Company.
SECTION 1.18. Nominee. The term "Nominee" when used with respect to
the Depositary shall mean such nominee or nominees of the Depositary as it shall
appoint from time to time to act on its behalf in connection with the
performance of its duties and obligations under this Deposit Agreement. The
Nominee shall perform in whatever capacity and to whatever extent under this
Deposit Agreement as the Depositary designates in its appointment of the
Nominee. Such appointment may be evidenced by written agreement, letter,
telegram, telex or other facsimile transmission or orally with subsequent
confirming agreement, letter, telegram, telex or other facsimile transmission.
SECTION 1.19. Deposit, Surrender, Delivery. The terms "deposit",
"surrender" or "delivery", when used with respect to Class A Shares, shall
refer, where the context requires, to an entry or entries or an electronic
transfer or transfers in an account or accounts maintained by institutions
authorized under Swedish law to effect transfers of securities (which may but
need not be the VPC), and not to the physical transfer of certificates
representing the Class A Shares.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF CLASS A SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Such Receipts shall be executed and dated 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 for the Receipts shall have
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been appointed and such Receipts are countersigned by the manual signature of a
duly authorized officer of the Registrar and dated by such officer. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if a
Registrar shall have been appointed, by the manual signature of a duly
authorized officer of the Registrar, and such execution of any Receipt by manual
signature shall be conclusive evidence, and the only evidence, that such Receipt
has been duly executed and delivered hereunder. The Depositary shall maintain
books in which each Receipt so executed and delivered as hereinafter provided
and the transfer of each such Receipt shall be registered. Receipts bearing the
facsimile signature of a duly authorized officer of the Depositary who was at
any time 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 Receipts by the Registrar and their delivery or such
officer did not hold such office at the date of such Receipts.
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 may be necessary to enable the Depositary to
perform its obligations hereunder or as may be required to comply with any
applicable law or regulations thereunder or with the rules and regulations of
any securities exchange or market upon which American Depositary Shares may be
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when such, Receipt is 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; provided, however, that the
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
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SECTION 2.02. Deposit of Class A Shares. Subject to the terms and
conditions of this Deposit Agreement, Class A Shares may be deposited by any
person including the Depositary In its individual capacity by delivery thereof
to the Custodian, accompanied by any appropriate instrument or instruments of
transfer or endorsement, in form satisfactory to such Custodian, together with
all such certifications as may be required by the Depositary or such Custodian
in accordance with the provisions of this Deposit Agreement, and together with 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 Class A
Shares so deposited. No Class A Shares shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary (which may be an opinion
of counsel) that any necessary approval has been granted by the governmental
agency in Sweden, if any, which is then performing the function of the
regulation of currency exchange. If required by the Depositary, Class A Shares
presented for deposit at any time, whether or not the transfer books of the
Company (or the appointed agent of the Company for transfer and registration of
the Class A Shares, which may but need not be the VPC) are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Depositary of
any dividend or right to subscribe for additional Class A Shares or to receive
other property which any person in whose name the Class A Shares are or have
been recorded may thereafter receive upon or in respect of any such deposited
Class A Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense or any holder or Class A Shares,
and for the account of such holder, the Depositary may receive Class A Shares to
be deposited, together with the other instruments herein specified, for the
purpose of forwarding such Class A Shares to a Custodian for deposit hereunder.
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Upon each delivery to a Custodian of Class A Shares to be deposited
hereunder, together with the other documents above specified, such Custodian
shall, as soon as transfer and recordation can be accomplished, request the
Company (or the appointed agent of the Company for transfer and registration of
the Class A Shares, which may but need not be the VPC) to transfer and record
the Class A Shares being deposited in the name of the Depositary or its nominee
or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
The Nominee may be a Custodian or another Swedish entity entitled to
act as nominee under relevant Swedish laws and regulations. Certificates for
Class A Shares may be kept in a joint deposit account by the Nominee, and all
Class A Shares deposited with the Nominee may be represented by one single
certificate.
SECTION 2.03. Execution and Delivery of Receipts. Upon receipt by a
Custodian of a deposit pursuant to Section 2.02 hereunder (and in addition, if
the transfer books of the Company (or the appointed agent of the Company for the
transfer and registration of the Class A Shares, which may but need not be VPC)
are open, a proper acknowledgment or other evidence from the Company (or the
appointed agent of the Company for transfer and registration of the Class A
Shares, which may but need not be the VPC) satisfactory to the Depositary that
any Deposited Securities have been recorded upon the books of the Company (or
the appointed agent of the Company for transfer and registration of the Class A
Shares, which may but need not be the VPC) in the name of the Depositary or its
Nominee or such Custodian or its nominee}, together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are
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deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request and risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. Upon receiving such notice from such Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver at its Principal Office to or upon the order of the person
or persons named in the notice delivered to the Depositary, a Receipt or
Receipts, registered in the name or names requested by such person or persons
and evidencing in the aggregate the number of American Depositary Shares to
which such person is entitled, but only upon payment to the Depositary of the
fee of the Depositary for the issuance, execution and delivery of such Receipt
or Receipts (as set forth on Exhibit B hereto) and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
deposited Class A Shares.
SECTION 2.04. Transfer of Receipts; Combination and Split -up of
Receipts. The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books, upon any
surrender of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer and
duly stamped as may be required by the laws of the State of New York, and of the
United States of America. Thereupon the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the person entitled
thereto.
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, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, representing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
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SECTION 2.05. Surrender of Receipts and Withdrawal of Class A
Shares. Upon surrender at the Principal Office of the Depositary of a Receipt
for the purpose of withdrawal of the Deposited Securities represented thereby,
and upon payment of the fee of the Depositary for the cancellation of Receipts
(as set forth in Exhibit B hereto) and subject to the terms and conditions of
this Deposit Agreement, the Holder of such Receipt shall be entitled to
delivery, to him or upon his order, of the Deposited Securities at the time
represented by such Receipt. Delivery of such Deposited Securities may be made
by the delivery of certificates to such Holder or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and 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 at the office of the Custodian, subject to
Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such Receipt, except that 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.
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 a certificate or certificates and other proper documents of
title for the Deposited Securities represented by such Receipt to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
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SECTION 2.06. Limitations on Execution and Delivery, Transfer, Etc.
of Receipts; Suspension of Delivery, 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 payment from the 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 class A Shares being
deposited or withdrawn) and payment of any applicable fees as herein provided,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any laws or
governmental regulations relating to American depositary receipts or to the
withdrawal of Deposited Securities.
The delivery of Receipts against deposits of Class A Shares
generally or against deposits of particular Class A Shares may be suspended, or
the delivery of Receipts against the deposit of particular Class A Shares may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfer generally may be suspended,
during any period when the transfer books of the Depositary or the Company are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement. Notwithstanding any other
provision of this Deposit Agreement, the surrender or outstanding Receipts and
withdrawal of Deposited Securities may not be suspended, except as required in
connection with (i) temporary delays caused by closing the transfer books of the
Depositary or the Company (or the appointed agent for the Company for the
transfer and registration of Shares) 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
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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 this Deposit Agreement any Class A
Shares required to be registered under the provisions of the Securities Act of
1933, unless a registration statement is in effect as to such Class A Shares.
SECTION 2.07. 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, in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt, upon the Holder thereof filing with the
Depositary (a) a request for such exchange and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond, and satisfying any other reasonable requirements
imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be canceled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Class A Shares for deposit or any Holder of a Receipt may be
required from time to time to file such proof of citizenship residence, or
exchange control approval, to provide information relating to the registration
on the books of the Company of the Class A Shares presented for deposit or other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper to comply with
applicable laws or regulations or to enable the Depositary to perform its
obligations hereunder. The Depositary may withhold the execution or delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof or the
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delivery of any Deposited Securities until such proof or other information is
filed, or such certificates are executed. The Depositary shall provide the
Company, in a timely manner, with copies of any such proofs of citizenship or
residence, or exchange control approval which it receives.
SECTION 3.02. Liability of Holder for Taxes. If any tax or other
governmental charge shall become payable with respect to any Deposited
Securities evidenced by any Receipt, such tax or other governmental charge shall
be payable by the Holder of such Receipt to the Depositary. The Depositary may
refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented thereby until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder
thereof any part or all of the Deposited Securities represented by such Receipt,
and may apply such dividends or other distributions or the proceeds of any such
sale in payment of such tax or other governmental charge, the Holder of such
Receipt remaining liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Class A Shares. Each person
depositing Class A Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Class A Shares are validly issued, fully paid
and non-assessable, that any preemptive rights have been validly waived and that
the person making such deposit is duly authorized so to do. Such representations
and warranties shall survive the deposit of Class A Shares and the issuance of
Receipts in respect thereof.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder upon acceptance of a
Receipt issued in accordance with the terms hereof, thereby appoints the
Depositary its agent, with power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities, including but not limited to those set forth in
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit agreement.
12
SECTION 4.02. Cash Distributions; Withholding. Whenever the
Custodian shall receive any cash dividend or other cash distribution by the
Company on any Deposited Securities, the Custodian shall, subject to the
provisions of Section 4.06, convert such dividend or distribution into dollars
and shall remit the amount thus received to the Depositary which shall
distribute such amount to the Holders of Receipts entitled thereto in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively; provided, however, that in the event that
the Company, the Custodian or the Depositary shall be 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, the amount distributed
to the Holder of Receipts for American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder of a Receipt a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. The Company
or its agent or the Depositary or its agent, as appropriate, will remit to the
appropriate governmental authority or agency in Sweden all amounts withheld and
owing to such authority or agency. The Depositary will forward to the Company or
its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental authorities or agencies.
SECTION 4.03. Distributions Other Than Cash or Class A Shares.
Whenever the Custodian shall receive any distribution other than cash or Class A
Shares upon any Deposited Securities, the Depositary shall cause the securities
or property received by the Custodian to be distributed to the Holders of
Receipts entitled thereto, in proportion to the number of American
13
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary it cannot cause such securities or property to be
distributed or such distribution cannot be made proportionately among the
Holders of Receipts entitled thereto, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems such distribution not to be feasible, the Depositary
may adopt such method as it may deem equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private sale)
of the securities or property thus received, or any part thereof, and the net
proceeds of any such sale shall be distributed by the Depositary to the Holders
of Receipts entitled thereto as in the case of a distribution received in cash.
SECTION 4.04. Distributions in Class A Shares. If any distribution
upon any Deposited Securities consists of a dividend in, or free distribution
of, Class A Shares, the Depositary may, with the Company's approval, and shall,
if the Company shall so request, distribute to the Holders of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively,
additional Receipts for an aggregate number of American Depositary Shares
representing the number of Class A Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the number of Class A Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.02. If
additional Receipts are not so distributed (except as pursuant to the preceding
sentence), each American Depositary Share shall thenceforth also represent the
additional Class A Shares distributed upon the deposited Securities represented
thereby.
14
SECTION 4.05. Rights. In the event that the Company shall offer or
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Class A Shares or any rights of any other nature, the
Depositary shall have discretion as to the procedure to be followed in making
such rights available to the Holders of Receipts or in disposing of such rights
on behalf of such Holders and making the net proceeds available in dollars to
such Holders; provided, however, that the Depositary will, if requested by the
Company, take action as follows:
(i) If at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights available to
Holders of Receipts by means of warrants or otherwise, the Depositary
shall distribute warrants or other instruments therefor in such form as it
may determine to the Holders entitled thereto, in proportion to the number
of American Depositary Shares representing such Deposited Securities held
by them respectively, or employ such other method as it may deem feasible
in order to facilitate the exercise, sale or transfer of rights by such
Holders; or
(ii) If at the time of the offering of any rights the Depositary
determines that it is not lawful or not feasible to make such rights
available to holders of Receipts by means of warrants or otherwise, or if
the rights represented by such warrants or such other instruments are not
exercised and appear to be about to lapse, the Depositary in its
discretion may sell such rights or such warrants or other instruments at
public or private sale, at such place or places and upon such terms as it
may deem proper, and allocate the proceeds of such sale for account of the
Holders of Receipts otherwise entitled to such rights, warrants or other
instruments upon an averaged or other practicable basis without regard to
any distinctions among such Holders because of exchange restrictions or
the date of delivery of any Receipt or Receipts, or otherwise.
If registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for the Company to offer such
rights to Holders of Receipts and to sell the
15
securities represented by such rights, the Depositary will not offer such rights
to the Holders of Receipts unless and until a registration statement is in
effect, or unless the offering and sale of such securities to the Holders of
such Receipts are exempt from registration under the provisions of such Act.
SECTION 4.06. Conversion of Foreign Currency. Whenever the
Depositary shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can, in the judgment of the Depositary, be converted on a reasonable
basis into dollars distributable to the Holders of the Receipts entitled thereto
and the resulting dollars transferred to the United States, 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 such dollars (less any
reasonable and customary expenses incurred by the Depositary in the conversion
of the foreign currency) shall be distributed to the Holders of Receipts
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. 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 with regard to a particular Holder or
distribution can be effected only with the approval or license of any government
or agency thereof, the Depositary shall file such application for approval or
license, if any, as it may deem desirable.
If at any time the Depositary shall determine that, in its judgment,
any foreign currency received by the Depositary is not convertible on a
reasonable basis into dollars distributable to the Holders or receipts entitled
thereto, or if any approval or license of any government or authority or agency
thereof which is required for such conversion is denied or in the opinion of the
16
Depositary, is not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency for the
respective accounts of, the Holders of Receipts entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in dollars to the extent permissible to the Holders of Receipts for
whom such conversion and distribution is practicable and may distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance for the account of, the Holders of Receipts for whom such conversion and
distribution is not practicable.
SECTION 4.07. Fixing of Record Date. Whenever any cash dividend or
other cash distribution or any distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued,
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Class A Shares or other Deposited
Securities, the Depositary shall fix a record date (which shall be as near as
practicable to the payment date for Class A Shares set by the Company, if any)
for the determination of the Holders of Receipts who shall be entitled to
receive such dividend, distribution or rights, or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting. Subject to the provisions of Sections 4.01 through 4.05 and to the
other terms and conditions of this Deposit Agreement, the Holders of Receipts on
such record date shall be entitled to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively.
17
SECTION 4.08. Voting of Deposited Securities. Upon receipt of notice
of any meeting of holders of Class A Shares or other Deposited Securities, the
Depositary shall, as soon as practicable thereafter, fix a record date for
determining the Holders entitled to give instructions for the exercise of voting
rights as provided in Section 4.07 and shall 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 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 any applicable provisions of Swedish law and of the Articles of
Association of the Company (which provisions, if any, shall be governing
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part), to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the Class A Shares or other Deposited Securities evidenced by
their respective Receipts, and (c) a brief statement as to the manner in which
such instructions may be given. A precondition for exercising any such voting
rights is that such Holder is registered in the register of stockholders of the
Company not less than fourteen calendar days prior to the date of the date or
the meeting and gives notice of this intention to attend the meeting, in person
or by proxy, not later than a date (being not earlier than five calendar days
before the meeting) specified in the notice convening the meeting. Pursuant to
these requirements, Holders or record will be entitled to deposit their Receipts
in a blocked account with the Depositary and to instruct the Depositary to
request a Custodian to cause the equivalent underlying Class A Shares to be
registered in the Holder's name and to give notice to the Company of the
Holder's intention to attend the meeting and to vote the Class A Shares at such
a meeting in person or by proxy. Such notice shall also contain a statement that
a Holder of Receipts who deposits his Receipts in a blocked account with the
Depositary and who instructs a Custodian to register in the Holder's name the
equivalent underlying Class A Shares for the purpose of voting such Class A
Shares at any meeting of holders of Class A Shares may instruct the Depositary,
immediately following any such meeting, to request
18
such Custodian to reregister the Class A Shares in the name in which such Class
A Shares were previously registered and to release to the Holder from the
blocked account the Receipts representing such Class A Shares. Upon the written
request of a Holder of a Receipt on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the Class A Shares
or other Deposited Securities evidenced by such Receipt In accordance with the
instructions set forth in such request.
The Depositary agrees not to vote the Class A Shares or other
Deposited Securities evidenced by a Receipt unless it receives instructions from
the Holder of such Receipt.
SECTION 4.09. Changes Affecting Deposited Securities. Upon any
change in par value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for or in conversion of or in respect of Deposited Securities shall be
treated as new Deposited Securities, and the American Depositary Shares shall
thenceforth represent the new Deposited Securities so received in exchange or
conversion, unless additional or new Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, with the Company's
approval, and shall, if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend on the Class A Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
Immediately upon the occurrence of any such change, conversion or
exchange covered by this Section in respect of the Deposited Securities, the
Depositary shall give notice thereof, at the Company's expense, in writing to
all Holders of Receipts.
19
SECTION 4.10. Available Information. The Company furnishes the
Commission with certain pubic reports and documents required by the laws of
Sweden or otherwise, in accordance with Rule 12g3 - 2(b) of the Securities
Exchange Act of 1934. These public reports and documents can be inspected by
Holders of Receipts and copied at public reference facilities maintained by the
Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. Should the Company become subject to additional informational
requirements, it will in accordance therewith file reports and other information
with the Commission.
SECTION 4.11. Reports. The Depositary shall make available for
inspection by Holders of Receipts at its Principal Office any reports and
communications received from the Company which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to Holders of Receipts copies of such reports when
furnished by the Company to the Custodian pursuant to Section 5.06. To the
extent required under Rule 12g3 -2 (b) or otherwise in accordance with the
Securities Exchange Act of 1934, such reports and communications shall be in
English.
In addition, upon the express written request of the Company, the
Depositary agrees to furnish, without, however, thereby relieving the Company of
its obligation under the Securities Exchange Act of 1934, to do so, and without
incurring any liability for failure to do so, to the Commission copies of any
specified annual or other periodic reports and other notices or communications
which the Depositary receives from the Company. The Depositary shall also
furnish to the Commission semi-annually, beginning on or before six months after
the effective date of any registration statement filed with the Commission under
the Securities Act of 1933 relating to the Receipts, the following information
in tabular form:
(1) the number of American Depositary Shares evidenced by Receipts
issued during the period covered by the report;
20
(2) the number of American Depositary Shares evidenced by Receipts
retired during the period covered by the report;
(3) the total amount of American Depositary Shares evidenced by
Receipts remaining outstanding at the end of the six-month period; and
(4) the total number of the Holders of Receipts at the end of the
six-month period.
The Depositary shall also furnish to the Commission the name of each
dealer known to the Depositary depositing Class A Shares against issuance of
Receipts during the period covered by the report. The Company shall furnish the
Depositary with the names of each such dealer known to the Company, and the
Depositary shall include in its report to the Commission the names of such
dealer or dealers which are supplied by the Company.
SECTION 4.12. Lists of Receipt Holders. Promptly upon 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 by all persons in
whose names Receipts are registered on the transfer books of the Depositary.
SECTION 4.13. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property (including Class A Shares or rights to subscribe
therefor) is subject to any tax which the Depositary is obligated to withhold,
the Depositary may dispose of all or a portion of such property (including Class
A Shares and rights to subscribe therefor) in such amounts and in such manner as
the Depositary deems necessary and' practicable to pay such taxes, by public or
private sale, and the Depositary shall distribute the net proceeds of any such
sale or the balance of any such property after deduct ion of such taxes to the
Holders of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall
21
maintain in the Borough of Manhattan, The City of New York, facilities for the
execution and delivery, registration, registration of transfers ando surrender
of Receipts in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Holders of Receipts, provided that such inspection shall not, to the
Depositary's knowledge, be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or, with the approval or the Company, appoint a Registrar
or one or more co-registrars for registry or such Receipts in accordance with
any requirements of such exchange or exchanges. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary upon
the request or with the approval of the Company.
SECTION 5.02. Prevention or Delay in Performance by the Depositary
or the Company. Neither the Depositary nor the Company shall incur any liability
to any Holder of any Receipt, if by reason of any provision of any present or
future law of the United States or of Sweden or of any other country, or of any
other governmental authority, or by reason of any provision, present or future,
of the Articles of Association of the Company, or by reason of any act of God or
war or other circumstances beyond its control, the Depositary or the Company
shall be prevented or forbidden from doing or performing any act or thing which
by the terms of this Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary or the Company incur any liability
22
to any Holder of a Receipt by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders of Receipts, except that it
agrees to use its best judgment and to act in good faith in the performance of
its obligations set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders of Receipts (including without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to use its best judgment and to act in good
faith in the performance of its duties set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or In respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required,
and no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or inaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Class A Shares for deposit,
any Holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the
23
effect of any such vote, provided that any such action or omission is in good
faith and in accordance with the terms of this Deposit Agreement.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal, effective upon the appointment of a successor depositary
and its acceptance of such appointment as 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
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; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the Holders of Receipts.
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.
24
SECTION 5.05. The Custodian. The Depositary has initially appointed
Skandinaviska Enskilda Banken and Svenska Handelsbanken as custodians and agents
of the Depositary for the purpose of this Deposit Agreement. Custodians in
acting hereunder shall be subject at all times and in all respects to the
direction of the Depositary and shall be responsible solely to it. The
Custodians may resign and be discharged from their duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. The Depositary shall, promptly
after receiving such notice, appoint a substitute custodian which shall
thereafter be Custodian hereunder. Whenever the Depositary determines, in its
discretion, that it is in the best interest of the Holders of Receipts to do so,
it may appoint a substitute or an additional custodian, which shall thereafter
be Custodian hereunder. Upon demand of the Depositary the Custodian shall
deliver such of the Deposited Securities held by it as are requested of it to
any other Custodian or such substitute or additional custodian or custodians.
Each such substitute or additional custodian shall deliver to the Depositary
forthwith upon its appointment, an acceptance of such appointment satisfactory
in form and substance to the Depositary. Immediately upon any such change, the
Depositary shall give notice thereof in writing to all Holders of Receipts.
Upon the appointment of any successor depositary hereunder, any
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but 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 as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports. On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting or
holders of Class A Shares or
25
other Deposited Securities, or of any adjourned meeting of such holders, 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 agrees to
transmit to the Custodian a copy of the notice thereof in the form given or to
be given to holders of Class A Shares or other Deposited Securities.
The Depositary, at the Company's expense, will arrange for the
prompt transmittal by the Custodian to the Depositary of such notices and any
other reports and communications which are made generally available by the
Company to holders of its Class A Shares, and arrange for the mailing, at the
Company's expense, of copies thereof to all Holders of Receipts.
SECTION 5.07. Issuance of Additional Class A Shares, Etc. The
Company agrees that in the event of any issuance of additional Class A Shares or
of other securities (including rights and convertible or exchangeable
securities) as a dividend or distribution with respect to the Class A Shares or
other Deposited Securities evidenced by Receipts, the Company will promptly
furnish to the Depositary a written opinion from counsel for the Company in the
United States, which counsel shall be satisfactory to the Depositary, stating
whether or not the circumstances of such issue are such as to make it necessary
for a Registration Statement under the Securities Act of 1933 to be in effect
prior to making such dividend or distribution available to the Holders entitled
thereto. If in the opinion of such counsel a Registration Statement is required,
such counsel shall furnish to the Depositary a written opinion as to whether or
not there is a Registration Statement in effect which will cover the issuance of
such securities.
The Company agrees that it will obtain legal advice as to whether
future issuances for cash of (1) additional Class A Shares, (2) rights to
subscribe for Class A Shares, (3) securities convertible into or exchangeable
for Class A Shares, or (4) rights to subscribe for securities convertible into
or exchangeable for Class A Shares (in each event other than as a dividend or
distribution set forth above) are such as co make it necessary for a
Registration Statement under the Securities Xxx 0000 covering such securities to
be in effect. If being advised by counsel, the
26
Company determines that an issuance of such securities is required to be
registered under the Securities Act of 1933, the Company will register such
issuance to the extent necessary, alter the terms of the issuance to avoid the
registration requirements of the Securities Act of 1933 or direct the Depositary
to take specific measures with respect to the acceptance for deposit of Class A
Shares to prevent such issuance from being made in violation of the registration
requirements of such Act.
The Company agrees with the Depositary that neither the Company nor
any company, controlled by the Company will at any time deposit any Class A
Shares, either upon original issuance or upon a sale of Class A Shares
previously issued and reacquired by the Company or by any company under its
control, unless a Registration Statement is in effect as to such Class A Shares
under the Securities Act of 1933.
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary and each Custodian against, and hold each of them harmless from, any
liability or expense which may arise out of acts performed or omitted, in
accordance with the provisions of this Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or any Custodian, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by the
Company or any of its agents.
The Depositary agrees to indemnify the Company and hold it harmless
from any liability or expense which may arise out of acts performed or omitted
by the Depositary or its Custodian due to the negligence or bad faith of either
the Depositary or the Custodian.
SECTION 5.09. Charges of Depositary. The Company agrees to pay the
expenses, fees or charges of the Depositary and the Registrar, if any, as
indicated in Exhibit B hereto to be paid by the Company, in each case other than
(1) the fees of the Depositary for the execution and delivery of Receipts
pursuant to Section 2.03, and the surrender of Receipts pursuant to Section
2.05, (2) taxes and other governmental charges, (3) such registration fees as
may from time to time
27
be in effect for the registration, of transfers of Class A Shares generally on
the share register of the Company accordingly applicable to transfers of Class A
Shares to the name of the Depositary or its nominee or a Custodian or its
nominee on the making of deposits pursuant to Section 2.02, (4) such cable,
telex and facsimile transmission and delivery expenses as are expressly provided
in this Deposit Agreement to be at the expense of persons depositing Class A
Shares or Holders of Receipts, and (5) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.06. Any
other charges and expenses of the Depositary hereunder will be paid by the
Company after consultation and agreement between the Depositary and the Company
as to the amount and nature of such charges and expenses. 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.
SECTION 5.10. Loans and Pre-Release of Shares and Receipts. Subject
to the further terms and provisions of this Section 5.10, the Depositary and its
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
for evidence of rights to receive Class A Shares from the Company, or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Class A Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Class A Shares furnished on behalf of the holder thereof. The
Depositary shall not lend Class A Shares or Receipts; provided, however, that
the Depositary may (i) issue Receipts prior to the receipt of Class A Shares
pursuant to Section 2.02 of this Deposit Agreement, and (ii) deliver Class A
Shares prior to the receipt and cancellation of Receipts pursuant to Section
2.05 of this Deposit Agreement, including Receipts which were
28
issued under (i) above but for which Class A Shares may not have been received.
The Depositary may receive Receipts in lieu of Class A Shares under (i) above
and receive and receive Class A Shares in lieu of Receipts under (ii) above.
Each such transaction will be (a) accompanied by (x) a written representation
from the person to whom Receipts or Class A Shares are to be delivered that such
person, or its customer, owns the Class A Shares or Receipts to be remitted, as
the case may be, or (y) such evidence of ownership of Class A Shares or
Receipts, as the case may be, as the Depositary deems appropriate, (b) at all
times fully collateralized with cash, United States government securities or
such other collateral of comparable safety and liquidity, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and Class
A Shares involved in such transactions at any one time to thirty percent (30%)
of the Receipts outstanding (without giving effect to Receipts outstanding under
(i) above), or Class A Shares held hereunder, respectively; provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary will also set limits with
respect to the number of Receipts and Class A Shares involved in transactions to
be effected hereunder with anyone 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 connection with the foregoing. Such collateral, but not the
earnings thereon, shall be held for the benefit of the Holders only.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any
29
amendment which shall impose or increase any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs, and expenses
of the Depositary in connection with conversion of foreign currency into U.S.
dollars), or which shall otherwise prejudice any substantial existing right of
Holders of Receipts, shall not, however, become effective as to outstanding
Receipts until the expiration of three months after notice of such amendment
shall have been given to the Holders of outstanding Receipts. Every Holder of a
Receipt at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Holder of any Receipt to surrender such
Receipt and receive therefor the Deposited Securities represented thereby.
SECTION 6.02. Termination. The Depositary shall at any time at the
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. The Depositary
may likewise terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, 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,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the
30
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary. At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder, and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it hereunder, without liability for interest,
for the pro rata benefit of the Holders of Receipts which have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash. 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 5.08 and 5.09
hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. 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 shall constitute one and the same instrument. Copies of
this Deposit Agreement shall be filed with the Depositary and each Custodian and
shall be open to inspection by any Holder of a Receipt during business hours.
SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement
is for the exclusive benefit of the parties hereto and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person.
SECTION 7.03. Severability. In case anyone 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 7.04. Holders and Parties; Binding Effect. The Holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance thereof.
31
SECTION 7.05. 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 Atlas Copco AB, S-10523 Stockholm, Sweden, Attention: Finance
Director, or to any other address which the Company may specify in writing.
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
Citibank, N.A., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
ADR Department, or to any other address which the Depositary may specify in
writing.
Any and all notices to be given to any Holder of a Receipt 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.
Delivery of a notice sent by mail, sir 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
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the laws of the State of New York.
32
IN WITNESS WHEREOF, ATLAS COPCO AB and CITIBANK, N.A. have duly
executed this Agreement as of the day and year first above set forth and all
Holders of Receipts shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
ATLAS COPCO AB
By /s/ Hans Xxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------------
Name: HANS XXX XXXXX XXXXXXX XXXXXXXXX
Title: Sr. Vice Pres. Sr. Vice Pres.
CITIBANK, N.A.
By /s/ Xxx X. Xxxxxxxxx
----------------------------------------------------
Name: XXX X. XXXXXXXXX
Title: Vice President
33
EXHIBIT A
Number
AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING
ONE CLASS A SHARE)
(FORM OF FACE OF RECEIPT] AMERICAN DEPOSITARY
RECEIPT FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED CLASS A SHARES OF
ATLAS COPCO AB
(Incorporated under the laws of Sweden)
CITIBANK, N .A., a -national banking association organized and
existing under the laws of the United States of America, as Depositary (the
"Depositary"), hereby certifies that _______________________ is the owner of
___________________________ American Depositary Shares, representing deposited
class A shares or evidence of rights to receive class A shares, SEK 5 par value
per share ("Class A Shares"), of Atlas Copco AB, a corporation organized under
the laws of Sweden (the "Company"). At the date of the Deposit Agreement, each
American Depositary Share represents one Class A Share(1) deposited under the
Deposit Agreement (as hereafter defined) with the Custodian which at the date of
execution of the Deposit Agreement are Skandinaviska Enskilda Banken and Svenska
Handelsbanken. The terms "deposit", "surrender" or "delivery", when used with
respect to Class A Shares, shall refer, where the context requires, to an entry
or entries or an electronic transfer or transfers in an account or accounts
maintained by institutions authorized under Swedish law to effect transfers of
securities (which may but need not be the VPC), and not to the physical transfer
of certificates representing the Class A Shares.
----------
(1) Subject to amendedment as provided in Article IV of the Deposit Agreement.
A-l
(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue (herein called the Receipts), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement, dated as of November 9,
1990 (as amended from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary and all Holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and becomes bound by all the terms and provisions thereof. The Deposit Agreement
sets forth the rights of Holders of the Receipts and the rights and duties of
the Depositary in respect of the Class A Shares deposited thereunder and any and
all other securities, property and cash from time to time received in respect of
such Class A Shares and held thereunder (such Class A 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. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by,
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made.
(2) Surrender of Receipts and Withdrawal of Class A Shares. Upon
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment or the fee of the Depositary provided in paragraph (6) of this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Holder
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of certificates or other appropriate evidence of title to the order of
the Holder hereof or as ordered by him or by the delivery of certificates or
other appropriate evidence of title endorsed or accompanied by proper
instruments of transfer. Such delivery will be made without unreasonable delay
and, at the option of the Holder hereof, either at the office of any Custodian
or at the Principal Office of the Depositary, provided that the forwarding of
Class A Shares or other Deposited Securities for such delivery at the corporate
trust office of the Depositary in the Borough of Manhattan, The City of New York
(the "Principal Office") shall be at the risk and expense of the Holder hereof.
A-2
(3) Transfers, Split-ups and Combinations. This Receipt is
transferable on the books of the Depositary by the Holder hereof In person or by
duly authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by law; provided, however, that the Depositary may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement. This
Receipt may be split into other Receipts or may be combined with other Receipts
into one Receipt, representing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto and payment of any applicable fees as
provided in Paragraph (6) of this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any laws or governmental regulations relating to
American depositary receipts or to the withdrawal of Deposited Securities.
The Depositary may refuse to execute and to deliver Receipts,
register the transfer of any Receipt, or make any distribution of, or related
to, Deposited Securities until it has received such proof of citizenship,
residence, exchange control approval or other information as it may deem
necessary or proper in accordance with applicable laws and regulations. The
delivery of Receipts against deposits of particular Class A Shares may be
suspended, or the delivery of Receipts against the deposit of particular Class A
Shares may be withheld or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer generally may be
suspended, during any period when the transfer books of the Depositary or the
Company are closed, if any such action is deemed necessary or advisable by the
Depositary or the Company at any time or from time to time in accordance with
the Deposit Agreement. Notwithstanding any provision of the Deposit
A-3
Agreement, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended except as required in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company (or the appointed agent for the Company for the transfer and
registration of Class A Shares) or the deposit of Class A 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 United
States 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 will not knowingly accept for deposit under the
Deposit Agreement any Class A Shares which, if sold by the Holder thereof in the
United States or its territories, would be subject to the registration
provisions of the United States Securities Act of 1933, as from time to time
amended, unless a Registration Statement is in effect as to such Class A Shares.
(4) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable with respect to any Deposited Securities represented
hereby, such tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of transfer of this Receipt or any withdrawal of Deposited Securities
represented hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder hereof any part
or all of the Deposited Securities represented hereby, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency.
(5) Warranties by Depositor. Every person depositing Class A Shares
under the Deposit Agreement shall be deemed thereby to represent and warrant
that such Class A Shares are validly issued, fully paid and non-assessable, and
that any preemptive rights have been validly waived and that the person making
such deposit is duly authorized so to do. Such representations and warranties
shall survive the deposit of Class A Shares and issuance of Receipts.
A-4
(6) Charges of Depositary. The Depositary will charge the party to
whom Receipts are delivered against deposits, and the party surrendering
Receipts for delivery of Deposited Securities, $5.00 for each 100 American
Depositary Shares (or portion thereof) represented by the Receipts issued or
surrendered. The Company will pay other charges of the Depositary and the
Registrar, if any, with the exception of (i) taxes and other governmental
charges, (ii) share transfer registration fees on deposits of Class A Shares,
(iii) such cable, telex and facsimile transmission expenses as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Class A Shares or Holders of Receipts, and (iv) such reasonable expenses as are
incurred by the Depositary in the conversion of foreign currency into dollars.
All such charges may be changed by agreement between the Depositary
and the Company at any time and from time to time, effective only after 90 days'
notice thereof is given to Holders.
(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares 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; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may deem and treat the person in whose name this
Receipt is registered on the books of the Depositary as the absolute owner
hereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement valid or obligatory for any purpose, unless
this Receipt shall have been executed by the Depositary by the manual signature
of a duly authorized officer or, if a Registrar for the Receipts shall have been
appointed, such signature may be a facsimile if this Receipt in countersigned by
the manual signature of a duly authorized officer of such Registrar.
A-5
(9) Available Information. The Company furnishes the Commission with
certain public reports and documents required by the laws of Sweden or
otherwise, in accordance with Rule 12g3 -2 (b) of the Securities Exchange Act of
1934. These public reports and documents can be inspected by Holders of Receipts
and copied at public reference facilities maintained by the Commission located
at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Should the
Company become subject to additional informational requirements, it will in
accordance therewith file reports and other information with the Commission.
Dated:
Countersigned CITIBANK, N .A.,
as Depositary
By: By:
-------------------------------- --------------------------------
Authorized Officer (Vice President)
The address of the Principal Office of the Depositary is 000 Xxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-6
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(10) Dividends and Distributions; Rights. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Deposited
Securities, the Depositary will, if at the time of receipt thereof any amounts
received in foreign currency can in the judgment of the Depositary be converted
on a reasonable basis into United States dollars distributable to the Holders of
Receipts entitled thereto and, subject to the provisions of the Deposit
Agreement, convert such dividend or distribution into United States dollars and
will distribute the amount thus received (less any reasonable expenses incurred
by the Depositary in converting such foreign currency) to the Holders of
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary in respect of taxes. If
in the judgment of the Depositary amounts received in foreign currency may not
be converted on a reasonable basis into United States dollars distributable to
the Holders of Receipts entitled thereto, or may not be so convertible for all
of the Holders of Receipts entitled thereto, the Depositary may in its
discretion make such conversion, if any, and distribution in United States
dollars to the extent permissible to the Holders of Receipts entitled thereto
and may distribute the balance of the foreign currency received and not so
convertible by the Depositary to, or hold such balance for the account of, the
Holders of Receipts entitled thereto. If in the opinion of the Depositary any
distribution other than cash or Class A Shares upon any Deposited Securities
cannot be made proportionately among the Holders of Receipts entitled thereto,
or if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem equitable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, and the
net proceeds of any such sale will be distributed by the Depositary to the
Holders of Receipts entitled thereto as in the case of a distribution received
in cash. If any distribution upon any Deposited
A-7
Securities consists of a dividend in, or free distribution of, Class A Shares,
the Depositary may with the Company's approval, and shall if the Company shall
so request, distribute to the Holders of outstanding Receipts entitled thereto,
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Class
A Shares received as such dividend or free distribution. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the number of Class A Shares represented by the aggregate
of such fractions and distribute the net proceeds, converted into United States
dollars if not in such dollars (if such conversion may in the judgment of the
Depositary be achieved on a reasonable basis), to the Holders of Receipts
entitled thereto. If additional Receipts are not so distributed (except as
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Class A Shares distributed upon the
Deposited Securities represented thereby. In the event that the Company shall
offer or cause to be offered to the Holders of any Deposited Securities any
rights to subscribe for additional Class A Shares or any rights of any other
nature, the Depositary will have discretion as to whether such rights are to be
made available to the Holders of Receipts; provided, however, that the
Depositary will, if requested by the Company, either (a) make such rights
available to Holders of Receipts by means of warrants or otherwise, if lawful
and feasible, or (b) if making such rights available is not lawful or not
feasible, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, sell such rights or warrants or
other instruments at public or private sale, at such place or places and upon
such terms as the Depositary may deem proper, and allocate the proceeds of such
sales for account of the Holders of Receipts otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any
Receipt or Receipts, or otherwise.
A-8
(11) Record Dates. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Class A Shares or other Deposited Securities, the Depositary will fix
a record date (which shall be as near as practicable to the payment date for
Class A Shares set by the Company, if any) for the determination of the Holders
of Receipts who will be entitled to receive such dividend, distribution or
rights, or the net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, subject to the provisions of the
Deposit Agreement.
(12) Voting of Deposited Securities. Upon receipt of notice of any
meeting of holders of Class A Shares, the Depositary shall, as soon as
practicable after fixing a record date for determining the record Holders
entitled to give instructions for the exercise of voting rights, 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 that the Holders of record
at the close of business on a specified record date will be entitled to instruct
the Depositary as to the exercise of voting rights, if any, pertaining to the
Deposited Securities evidenced by their respective American Depositary Shares,
and (c) a brief statement as to the manner in which such instructions may be
given. A precondition for exercising any such voting rights is that such Holder
is registered in the register of stockholders of the Company not less than
fourteen calendar days prior to the date of the date of the meeting and gives
notice of this intention to attend the meeting, in person or by proxy, not later
than a date (being not earlier than five calendar days before the meeting)
specified in the notice convening the meeting. Pursuant to these requirements,
Holders of record will be entitled to deposit their Receipts in a blocked
account with the Depositary and to instruct the Depositary to request a
custodian to cause the equivalent underlying Class A Shares to be registered in
the Holder's name and to give notice to the Company of the Holder's intention to
attend the meeting and to vote the Class A Shares at such meeting in person or
by proxy. Such notice shall also contain a statement that a Holder of Receipts
who deposits his Receipts in a blocked account with the Depositary and who
instructs a Custodian
A-9
to register in the Holder's name the equivalent underlying Class A Shares for
the purpose of voting such Class A Shares at any meeting of holders of Class A
Shares may instruct the Depositary, immediately following any such meeting, to
request such Custodian to reregister the Class A Shares in the name in which
such Class A Shares were previously registered and to release to the Holder from
the blocked account the Receipts representing such Class A Shares. Upon the
written request of a Holder of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
will endeavor insofar as practicable to vote or cause to be voted the Deposited
Securities evidenced by such Receipt in accordance with such instructions. The
Depositary agrees not to vote the Class A Shares or other Deposited Securities
evidenced by a Receipt unless it receives instructions from the Holder of such
Receipts.
(13) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional or new Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may with the Company's
approval, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts. Immediately
upon the occurrence of any such change, conversion or exchange covered by
Section 4.09 of the Deposit Agreement in respect of the Deposited Securities,
the Depositary shall give notice thereof, at the Company's expense, in writing
to all Holders of Receipts.
A-10
(14) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by the Holders of Receipts at its Principal Office any
reports and communications received, including any proxy soliciting material,
from the Company which are both (a) received by the Depositary as the holder of
the Deposited Securities, and (b) made generally available to the holders of
such Deposited Securities by the Company. To the extent required under Rule
12g3-2(b) or otherwise in accordance with the Securities Exchange Act of 1934,
such reports and communications shall be in English. The Depositary will also
send to Holders of Receipts copies of such reports when furnished by the Company
as provided in the Deposit Agreement. The Depositary will keep books for the
registration of Receipts and their transfer which at all reasonable times will
be open for inspection by the Company and Holders of Receipts, provided that
such inspection shall not be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the Receipts.
(15) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Class A Shares or rights to subscribe therefor) is subject
to any tax which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Class A Shares and
rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale, and the Depositary shall distribute the net proceeds of any such
sale after deduction of such taxes to the Holders of Receipts entitled thereto.
(16) Liability of the Company and Depositary. Neither the Depositary
nor the Company will incur any liability to any Holder of this Receipt, if by
reason of any provision of any present or future law of any country or of any
other governmental authority, or by reason of any provision, present or future,
of the Articles of Association of the Company, or by reason of any act of God or
war or other circumstances beyond its control, the Depositary or the Company
shall be prevented or forbidden from, or delayed, in doing or performing any act
or thing which by the terms
A-l1
of the Deposit Agreement it is provided shall be done or performed. Neither the
Company nor the Depositary assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Holders of Receipts, except that each
of them agrees to use its best judgment and to act in good faith in the
performance of such duties as are specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company will be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense and liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as may be
required, and no Custodian will be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary. Neither the Depositary nor the Company will be liable for any action
or inaction by it in reliance upon the advice of or in information from legal
counsel, accountants, any person presenting Class A Shares for deposit, any
Holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary will not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any such vote is cast or effect
of any such vote, provided that any such action or non-action is in good faith.
The Company agrees to indemnify the Depositary and each Custodian against, and
hold each of them harmless from, any liability or expense which may arise out of
acts performed or omitted, in accordance with the provisions of the Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or any Custodian,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
(17) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit
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Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal, effective upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time appoint a substitute or an additional custodian and
the term "Custodian" shall also refer to such substitute or additional
custodian.
(18) Amendment of Deposit Agreement and Receipts. The form of the
Receipts and the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary. Any amendment which
shall impose or increase any fees or charges (other than stock transfer or other
taxes and other governmental charges, transfer or registration fees, cable,
telex or facsimile transmission costs, delivery costs, and expenses of the
Depositary in connection with conversion of foreign currency into U.S. dollars),
or which shall otherwise prejudice any substantial existing right of Holders of
Receipts, shall not, however, become effective as to outstanding Receipts until
the expiration of three months after notice of such amendment shall have been
given to the Holders of outstanding Receipts. Every Holder of a Receipt at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby.
(19) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any time 60 days
after the Depositary shall have resigned, a successor depositary shall not have
been appointed and accepted its appointment. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices or perform any further acts under the Deposit Agreement, except the
collection of dividends and other distributions
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pertaining to Deposited Securities, the sale of rights and the delivery of
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary. At any
time after the expiration of six months from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it under the Deposit Agreement, without
liability for interest, for the pro rata benefit of the Holders of Receipts not
theretofore surrendered. Thereafter the Depositary will be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash.
(20) Loans and Pre-Release of Shares and Receipts. The Depositary
and its 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 for evidence of rights to receive Class A Shares from the Company, or
any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Class A Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Class A Shares furnished on behalf of the holder thereof. The
Depositary shall not lend Class A Shares or Receipts; provided, however, that
the Depositary may (i) issue Receipts prior to the receipt of Class A Shares
pursuant to Section 2.02 of the Deposit Agreement, and (ii) deliver Class A
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 Class A Shares may not have been received. The Depositary
may receive Receipts in lieu of Class A Shares under (ii) above. Each such
transaction will be (a) accompanied by (x) a written representation from the
person to whom Receipts or Class A Shares are to be delivered that such person,
or its customer, owns the Class A Shares or Receipts to be remitted, as the case
may be, or (y) such evidence of ownership of Class A Shares or Receipts, as the
case may be, as the Depositary deems appropriate, (b) at all times fully
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collateralized with cash, United States government securities or such other
collateral of comparable safety and liquidity, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of Receipts and Class A Shares
involved in such transactions at any one time to thirty percent (30%) of the
Receipts outstanding (without giving effect to Receipts outstanding under (i)
above), or Class A Shares held hereunder, respectively; provided, however, that
the Depositary reserves the right to change or disregard such limit from time as
it deems appropriate. The Depositary will also set limits with respect to the
number of Receipts and Class A Shares involved in transactions to be effected
hereunder 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
connection with the foregoing. Such collateral, but not the earnings thereon,
shall be held for the benefit of the Holders only.
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EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
------- ---- ------------
(1) Receipts of deposits $5 per 100 American Depositary Party to whom
and issuance of Receipts Shares (or fraction thereof) Receipts are issued
(2) Delivery of deposited $5 per 100 American Depositary Party surrendering
Class A Shares against Shares (or fraction thereof) Receipts
surrender of Receipts
Charges of the Depositary, plus out-of-pocket expenses such as printing,
translation, stationery, postage, insurance, cables, etc., are to be paid by the
Company in accordance with agreements in writing to be entered into between the
Depositary and the Company from time to time.
B-1
