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DEPOSIT AGREEMENT
by and among
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UNITED PAN-EUROPE COMMUNICATIONS N.V.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of February __, 1999
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ARTICLE I DEFINITIONS...............................................2
SECTION 1.1. "Affiliate"...............................................2
SECTION 1.2. "American Depositary Share(s)" and "ADS(s)"...............2
SECTION 1.3. "ADS Record Date".........................................2
SECTION 1.4. "Beneficial Owner"........................................2
SECTION 1.5. "Business Day"............................................2
SECTION 1.6. "Commission"..............................................2
SECTION 1.7. "Company".................................................2
SECTION 1.8. "Custodian"...............................................2
SECTION 1.9. "Deliver" and "Delivery"..................................3
SECTION 1.10. "Deposit Agreement".......................................3
SECTION 1.11. "Depositary"..............................................3
SECTION 1.12. "Deposited Securities"....................................3
SECTION 1.13. "Dollars" and "$".........................................3
SECTION 1.14. "DTC" 3...................................................3
SECTION 1.15. "DTC Participant".........................................3
SECTION 1.16. "Euros"...................................................3
SECTION 1.17. "Exchange Act"............................................3
SECTION 1.18. "Foreign Currency"........................................3
SECTION 1.19. "Holder"..................................................3
SECTION 1.20. "NECIGEF".................................................4
SECTION 1.21. "NECIGEF Participant".....................................4
SECTION 1.22. "Pre-Release Transaction".................................4
SECTION 1.23. "Principal Office"........................................4
SECTION 1.24. "Receipt(s)"; "American Depositary Receipt(s)"
and "ADR(s)".............................................4
SECTION 1.25. "Registrar"...............................................4
SECTION 1.26. "Restricted Securities"...................................4
SECTION 1.27. "Securities Act"..........................................4
SECTION 1.28. "Securities Giro Transfer Act"............................5
SECTION 1.29. "Share Registrar".........................................5
SECTION 1.30. "Shares"..................................................5
SECTION 1.31. "United States"...........................................5
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ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS........................5
SECTION 2.1. Appointment of Depositary.................................5
SECTION 2.2. Form and Transferability of Receipts......................5
SECTION 2.3. Deposit with Custodian....................................7
SECTION 2.4. Registration of Shares....................................8
SECTION 2.5. Execution and Delivery of Receipts........................8
SECTION 2.6. Transfer of Receipts; Combination and
Split-up of Receipts......................................8
SECTION 2.7. Surrender of ADSs and Withdrawal of Deposited Securities..9
SECTION 2.8. Limitations on Execution and Delivery, Transfer,
etc. of Receipts; Suspension of Delivery,
Transfer, etc............................................11
SECTION 2.9. Lost Receipts, etc.......................................11
SECTION 2.10. Cancellation and Destruction of Surrendered
Receipts; Maintenance of Records.........................12
SECTION 2.11. Partial Entitlement ADSs.................................12
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL
OWNERS OF RECEIPTS.......................................12
SECTION 3.1. Proofs, Certificates and Other Information...............12
SECTION 3.2. Liability for Taxes and Other Charges....................13
SECTION 3.3. Representations and Warranties on Deposit of Shares......13
SECTION 3.4. Compliance with Information Requests.....................14
SECTION 3.5. Ownership Restrictions...................................14
ARTICLE IV THE DEPOSITED SECURITIES.................................14
SECTION 4.1. Cash Distributions.......................................15
SECTION 4.2. Distribution in Shares...................................15
SECTION 4.3. Elective Distributions in Cash or Shares.................16
SECTION 4.4. Distribution of Rights to Purchase Shares................17
SECTION 4.5. Distributions Other Than Cash, Shares or
Rights to Purchase Shares................................18
SECTION 4.6. [Intentionally deleted]..................................19
SECTION 4.7. Redemption...............................................19
SECTION 4.8. Conversion of Foreign Currency...........................19
SECTION 4.9. Fixing of ADS Record Date................................20
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SECTION 4.10. Voting of Deposited Securities...........................21
SECTION 4.11. Changes Affecting Deposited Securities...................21
SECTION 4.12. Available Information....................................22
SECTION 4.13. Reports..................................................22
SECTION 4.14. List of Holders..........................................22
SECTION 4.15. Taxation.................................................23
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY............24
SECTION 5.1. Maintenance of Office and Transfer Books by
the Registrar............................................24
SECTION 5.2. Exoneration..............................................24
SECTION 5.3. Standard of Care.........................................25
SECTION 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary......................26
SECTION 5.5. The Custodian............................................26
SECTION 5.6. Notices and Reports......................................27
SECTION 5.7. Issuance of Additional Shares, ADSs etc..................28
SECTION 5.8. Indemnification..........................................28
SECTION 5.9. Fees and Charges of Depositary...........................29
SECTION 5.10. Pre-Release..............................................30
ARTICLE VI AMENDMENT AND TERMINATION................................31
SECTION 6.1. Amendment/Supplement.....................................31
SECTION 6.2. Termination..............................................31
ARTICLE VII MISCELLANEOUS............................................32
SECTION 7.1. Counterparts.............................................32
SECTION 7.2. No Third-Party Beneficiaries.............................33
SECTION 7.3. Severability.............................................33
SECTION 7.4. Holders and Beneficial Owners as Parties;
Binding Effect...........................................33
SECTION 7.5. Notices..................................................33
SECTION 7.6. Governing Law and Jurisdiction...........................34
SECTION 7.7. Assignment...............................................35
SECTION 7.8. Compliance with U.S. Securities Laws.....................35
SECTION 7.9. Titles...................................................35
Form of Receipt A-1
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Fee Schedule B-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of February ___, 1999, by and among (i) UNITED
PAN-EUROPE COMMUNICATIONS N.V., a company organized under the laws of The
Netherlands, and its successors (the "Company"), (ii) CITIBANK, N.A., a national
banking association organized under the laws of the United States of America
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares evidenced by American Depositary Receipts issued hereunder
(all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding Ordinary Shares,
nominal value Euros 0.30 each (the "Shares"), which are deposited with NECIGEF
(as defined below) and listed for trading on the Amsterdam Stock Exchange; and
WHEREAS, the Company desires to establish with the Depositary an ADR facility to
provide for the deposit of the Shares and the creation of American Depositary
Shares representing the Shares so deposited and for the execution and delivery
of American Depositary Receipts evidencing such American Depositary Shares; and
WHEREAS, the Depositary is willing to act as the depositary for such facility
and the Company is willing to engage the Depository upon the terms set forth in
this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American Depositary
Shares issued pursuant to the terms of this Deposit Agreement are to be
substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms of
this Deposit Agreement are to be quoted on the NASDAQ National Market System
under the symbol "UPCOY"; and
WHEREAS, the Board of Management of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
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ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1. "Affiliate" shall have the meaning assigned to such term by the
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Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
SECTION 1.2. "American Depositary Share(s)" and "ADS(s)" American Depositary
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Shares(s) shall mean with respect to any American Depositary Receipt, the rights
and interests in the Deposited Securities granted to the Holders and Beneficial
Owners pursuant to the terms and conditions of this Deposit Agreement and the
American Depositary Receipts issued hereunder. Each American Depositary Share
shall represent one Share, until there shall occur a distribution upon Deposited
Securities referred to in Section 4.2 or a change in Deposited Securities
referred to in Section 4.11 with respect to which additional American Depositary
Shares are not issued, and thereafter each American Depositary Share shall
represent the Shares or Deposited Securities specified in such Sections.
SECTION 1.3. "ADS Record Date" shall have the meaning given to such term in
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Section 4.9.
SECTION 1.4. "Beneficial Owner" shall mean as to any ADS, any person or entity
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having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR(s) evidencing such
ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner.
SECTION 1.5. "Business Day" shall mean any day on which both the banks in
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Amsterdam, The Netherlands and the banks in New York are open for business.
SECTION 1.6. "Commission" shall mean the Securities and Exchange Commission of
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the United States or any successor governmental agency in the United States.
SECTION 1.7. "Company" shall mean United Pan-Europe Communications N.V., a
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company incorporated and existing under the laws of The Netherlands, and its
successors.
SECTION 1.8. "Custodian" shall mean, as of the date hereof, Citibank N.A.,
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Amsterdam, having its principal office at Europlaza, Xxxxxxxxxxxx 00X, 0000
X.X., Xxxxxxxxx Z.O., The Netherlands, as the custodian for the purposes of this
Deposit Agreement, and any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.5 as successor, substitute or additional
custodian hereunder, as the context shall require. The term "Custodians" shall
mean all custodians, collectively.
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SECTION 1.9. "Deliver" and "Delivery" shall mean, when used in respect of
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American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, if any, or the
electronic delivery of such security by means of book-entry transfer, if
available; in the case of Shares, delivery shall take place only electronically
by means of book-entry transfer recorded in the books of NECIGEF or a NECIGEF
participant in accordance with the provisions of the Securities Giro Transfer
Act.
SECTION 1.10. "Deposit Agreement" shall mean this Deposit Agreement and all
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exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION 1.11. "Depositary" shall mean Citibank, N.A., a national banking
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association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.12. "Deposited Securities" shall mean Shares at any time deposited
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under this Deposit Agreement and any and all other securities, property and cash
held by the Depositary or the Custodian in respect thereof, subject, in the case
of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 hereof shall
not constitute Deposited Securities.
SECTION 1.13. "Dollars" and "$" shall refer to the lawful currency of the United
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States.
SECTION 1.14. "DTC" shall mean The Depository Trust Company, a national
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clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.15. "DTC Participant" shall mean any financial institution (or any
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nominee of such institution) having one or more participant accounts with DTC
for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.16. "Euros" shall refer to the single currency of the participating
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member states from time to time of the European Union described in legislation
of the European Council for the operation of a single unified European currency
(whether known as the Euro or otherwise).
SECTION 1.17. "Exchange Act" shall mean the United States Securities Exchange
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Act of 1934, as from time to time amended.
SECTION 1.18. "Foreign Currency" shall mean currency other than Dollars.
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SECTION 1.19. "Holder" shall mean the person in whose name a Receipt is
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registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADSs
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evidenced by the Receipt registered in its name, such person shall be deemed to
have all requisite authority to act on behalf of the Beneficial Owners of such
ADSs.
SECTION 1.20. "NECIGEF" shall mean The Netherlands Central Institute for Giro
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Securities (Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.), the
central securities depositary in The Netherlands, or any successor entity
thereto.
SECTION 1.21. "NECIGEF Participant" shall mean any financial institution which
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is a participant having an account at NECIGEF.
SECTION 1.22. "Pre-Release Transaction" shall have the meaning set forth in
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Section 5.10 hereof.
SECTION 1.23. "Principal Office" when used with respect to the Depositary, shall
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mean the principal office of the Depositary at which at any particular time its
depositary receipts business shall be administered, which, at the date of this
Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
SECTION 1.24. "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)" shall
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mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
SECTION 1.25. "Registrar" shall mean the Depositary or any bank or trust company
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having an office in the Borough of Manhattan, The City of New York, which shall
be appointed by the Depositary to register issuances and transfers of Receipts
as herein provided, and shall include any co-registrar appointed by the
Depositary for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary. Each Registrar (other than
the Depositary) appointed pursuant to this Deposit Agreement shall be required
to give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
SECTION 1.26. "Restricted Securities" shall mean Shares, or American Depositary
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Shares representing such Shares, which (i) have been acquired directly or
indirectly from the Company or any of its Affiliates in a transaction or chain
of transactions not involving any public offering and subject to resale
limitations under the Securities Act or the rules issued thereunder, or (ii) are
held by an officer or director (or persons performing similar functions) or
other Affiliate of the Company, or (iii) are subject to other restrictions on
sale or deposit under the laws of the United States, The Netherlands, or under a
shareholder agreement or the Articles of Association of the Company or under the
regulations of an applicable securities exchange unless, in each case, such
Shares are being sold to persons other than an Affiliate of the Company in a
transaction (i) covered by an effective resale registration statement or (ii)
exempt from the registration requirements of the Securities Act (as hereinafter
defined), and the Shares are not, when held by such person, Restricted
Securities.
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SECTION 1.27. "Securities Act" shall mean the United States Securities Act of
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1933, as from time to time amended.
SECTION 1.28. "Securities Giro Transfer Act" shall mean the Dutch Wet Giraal
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Effectenverkeer.
SECTION 1.29. "Share Registrar" shall mean the Company or a depository
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institution organized under the laws of the Netherlands, which carries out the
duties of registrar for the Shares or any successor as Share Registrar for such
Shares appointed by the Company.
SECTION 1.30. "Shares" shall mean the Company's Ordinary Shares, nominal value
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Euros 0.30 per share, validly issued and outstanding and fully paid and may, if
the Depositary so agrees after consultation with the Company, include evidence
of the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in nominal value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.11 in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in nominal value, split-up, consolidation, exchange, conversion,
reclassification or event.
SECTION 1.31. "United States" shall have the meaning assigned to it in
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Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1. Appointment of Depositary. The Company hereby appoints the
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Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof).
SECTION 2.2. Form and Transferability of Receipts.
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(a) Form. American Depositary Shares shall be evidenced by definitive Receipts
----
which shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the
5
Company and the Depositary. The Receipts shall be substantially in the form
set forth in Exhibit A to this Deposit Agreement, with any appropriate
---------
insertions, modifications and omissions, in each case, as otherwise contemplated
in the Deposit Agreement. Receipts shall be (i) dated, (ii) signed by the manual
or facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of the issuance and transfer of Receipts. No
Receipt and no American Depositary Share evidenced thereby shall be entitled to
any benefits under this Deposit Agreement or be valid or enforceable for any
purpose against the Depositary or the Company, unless such Receipt shall have
been so dated, signed, countersigned and registered. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such Receipt by the Depositary. The Receipts shall bear
a CUSIP number that is different from any CUSIP number that was, is or may be
assigned to any depositary receipts previously or subsequently issued pursuant
to any other arrangement between the Depositary (or any other depositary) and
the Company which are not Receipts issued hereunder.
(b) Legends. The Receipts may be endorsed with or have incorporated in the text
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thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement (i) as may be necessary to enable the Depositary to
perform its obligations hereunder, (ii) as may be required to comply with any
applicable law or regulations, or with the rules and regulations of any
securities exchange or market upon which American Depositary Shares may be
traded, listed or quoted or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) as may be required by
any book-entry system in which the ADSs are held.
(c) Title. Subject to the limitations contained herein and in the Receipt, title
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to a Receipt (and to each ADS evidenced thereby) shall be transferable by
delivery of the Receipt with the same effect as a certificated security under
the laws of the State of New York, provided that such Receipt has been properly
endorsed or is accompanied by proper instruments of transfer. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of a
Receipt (that is, the person in whose name a Receipt is registered on the books
of the Depositary) as the absolute owner thereof for all purposes. The
Depositary shall have no obligation nor be subject to any liability under this
Deposit Agreement or any Receipt to any holder of a Receipt or any Beneficial
Owner unless such holder is the Holder of such Receipt registered on the books
of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner
or the Beneficial Owner's representative is the Holder registered on the books
of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
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acceptance of the American Depositary Shares into DTC. A single ADR in the form
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co."). As such,
the nominee for DTC will be the only "Holder" of the ADR evidencing all ADSs
held through DTC. Each Beneficial Owner of ADSs held through
6
DTC must rely upon the procedures of DTC and the DTC Participants to exercise or
be entitled to any rights attributable to such ADSs. The DTC Participants shall
for all purposes be deemed to have all requisite power and authority to act on
behalf of the Beneficial Owners of the ADSs held in the DTC Participants'
respective accounts in DTC and the Depositary shall for all purposes be
authorized to rely upon any instructions and information given to it by DTC
Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are held
through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
SECTION 2.3. Deposit with Custodian. Subject to the terms and conditions of this
----------------------
Deposit Agreement and applicable law, Shares or evidence of rights to receive
Shares (other than Restricted Securities) may be deposited by a NECIGEF
Participant (including the Depositary in its individual capacity but subject,
however, in the case of the Company or any Affiliate of the Company, to Section
5.7 hereof) at any time, whether or not the transfer books of the Company or the
Share Registrar, if any, are closed, by Delivery of the Shares to the Custodian,
and (A) such certifications and payments (including, without limitation, the
Depositary's fees and related charges) and evidence of such payments (including,
without limitation, stamping or otherwise marking such Shares by way of receipt)
as may be required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement and applicable law, (B) if the Depositary
so requires, a written order directing the Depositary to execute and deliver to,
or upon the written order of, the person(s) stated in such order a Receipt or
Receipts for the number of American Depositary Shares representing the Shares so
deposited, (C) evidence satisfactory to the Depositary (which may be an opinion
of counsel) that all necessary approvals have been granted by, or there has been
compliance with the rules and regulations of, any applicable governmental agency
in The Netherlands, and (D) if the Depositary so requires, (i) an agreement,
assignment or instrument satisfactory to the Depositary or the Custodian which
provides for the prompt transfer by any NECIGEF Participant who Delivers the
Shares to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
recorded in the name of the NECIGEF Participant on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares for any and all purposes until the Shares
so deposited are recorded in the name of the Custodian. Without limiting any
other provision of this Deposit Agreement, the Depositary shall instruct the
Custodian not to, and the Depositary shall not knowingly, accept for deposit (a)
any Restricted Securities nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No
Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
NECIGEF Participant depositing such Shares under the laws and regulations of The
Netherlands and any necessary approval has been granted by any governmental body
in The Netherlands, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue Receipts against
evidence of rights to
7
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
SECTION 2.4. Registration of Shares. Upon each electronic Delivery of Shares
----------------------
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), NECIGEF shall by electronic transfer recorded in
the books of NECIGEF transfer the Shares (as soon as transfer and registration
can be accomplished and at the expense of the NECIGEF Participant for whom the
deposit is made) in the name of the Custodian. Deposited Securities shall be
held by the Custodian for the account and to the order of the Depositary or a
nominee in each case on behalf of the Holders and Beneficial Owners.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Articles of Association of the Company.
SECTION 2.5. Execution and Delivery of Receipts. The Depositary has made
----------------------------------
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Custodian in the
books of NECIGEF, (iii) that all required documents have been received, and (iv)
the person or persons to whom or upon whose order American Depositary Shares are
deliverable in respect thereof and the number of American Depositary Shares to
be so delivered thereby. Such notification may be made by letter, cable, telex,
swift message or, at the risk and expense of the person making the deposit, by
facsimile or other means of electronic transmission. Upon receiving such notice
from the Custodian and subject to the terms and conditions of this Deposit
Agreement the Depositary shall issue the American Depositary Shares representing
the Shares so deposited to or upon the order of the person(s) named in the
notice delivered to the Depositary and shall execute and deliver at its
Principal Office Receipt(s) registered in the name or names requested by such
person(s) and evidencing the aggregate number of American Depositary Shares to
which such person(s) are entitled, but only upon payment to the Depositary of
the charges of the Depositary for accepting a deposit, issuing American
Depositary Shares and executing and delivering such Receipt(s) (as set forth in
Section 5.9 and Exhibit B hereto) and all taxes and governmental charges and
fees payable in connection with such deposit and the transfer of the Shares and
the issuance of the Receipt(s). The Depositary shall only issue American
Depositary Shares in whole numbers and deliver American Depositary Receipts
evidencing whole numbers of American Depositary Shares. Nothing herein shall
prohibit any Pre-Release Transaction upon the terms set forth in this Deposit
Agreement.
SECTION 2.6. Transfer of Receipts; Combination and Split-up of Receipts.
----------------------------------------------------------
8
(a) Transfer. Subject to the terms and conditions of the applicable Receipts,
--------
this Deposit Agreement and the U.S. securities laws, the Depositary shall
register as promptly as practicable transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard industry practice) and duly stamped as may be required
by the laws of the State of New York and of the United States of America.
Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9
and Exhibit B hereto, the Depositary shall execute and, if the Depositary's
signature is by facsimile, the Registrar shall manually countersign, new
Receipt(s) and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of American Depositary Shares as
those evidenced by the Receipt(s) surrendered.
(b) Combination & Split Up. Subject to the terms and conditions of the
----------------------
applicable Receipt, this Deposit Agreement and the U.S. securities laws, the
Depositary shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts and upon payment
to the Depositary of the applicable fees and charges set forth in Section 5.9
and Exhibit B hereto, (i) execute and, if the Depositary's signature is by
facsimile, the Registrar shall manually countersign, a new Receipt or Receipts
for any number of American Depositary Shares requested, but evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered, and (ii) deliver the same to or upon the order of the person
entitled thereto as promptly as practicable.
(c) Co-Transfer Agents. The Depositary, after consultation with the Company, may
------------------
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary.
Each co-transfer agent appointed under this Section 2.6 (other than the
Depositary) shall give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
SECTION 2.7. Surrender of ADSs and Withdrawal of Deposited Securities. Upon
--------------------------------------------------------
surrender, at the Principal Office of the Depositary, of ADSs for the purpose of
withdrawal of the Deposited Securities represented thereby, and upon payment of
(i) the fees and charges of the Depositary for the making of withdrawals of
Deposited Securities and cancellation of Receipts (as set forth in Section 5.9
and Exhibit B hereof) and (ii) all applicable taxes and governmental charges
payable in connection with such surrender and withdrawal, and subject to the
terms and conditions of this Deposit Agreement, the Receipt(s) evidencing such
ADSs, the Company's Articles of Association, Section 7.8 hereof and any other
provisions of or governing the Deposited Securities, other applicable laws now
or hereafter in effect and the rules of NECIGEF, the Holder of such ADSs shall
be entitled to Delivery, by electronic transfer recorded on the transfer books
of NECIGEF to the NECIGEF Participant designated in such Holder's order, of
9
the Deposited Securities at the time represented by the ADSs so surrendered and
delivery of any other securities, property and cash to which such Holder is then
entitled in respect of such ADSs. ADSs may be surrendered for the purpose of
withdrawing Deposited Securities by delivery of a Receipt evidencing such ADSs
(if held in registered form) or by book-entry delivery of such ADSs to the
Depositary.
A Receipt surrendered for such purposes shall, if so required by the Depositary,
be properly endorsed in blank or accompanied by proper instruments of transfer
in blank. If the Depositary so requires, the Holder of any ADSs surrendered for
the purpose of withdrawing the Deposited Securities represented thereby shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be Delivered to the NECIGEF
Participant designated in such order.
Upon receipt by the Depositary of ADSs surrendered for the purpose of withdrawal
of Deposited Securities, the Depositary shall direct the Custodian to Deliver as
promptly as practicable by electronic transfer recorded in the books of NECIGEF,
subject to Sections 2.8, 3.1, 3.2, 5.9, and to the other terms and conditions of
this Deposit Agreement, the Receipt(s) evidencing such ADSs, the Articles of
Association of the Company, and the provisions of or governing the Deposited
Securities, applicable laws and the rules of NECIGEF, now or hereafter in
effect, to the NECIGEF Participant designated in the written order delivered to
the Depositary for such purpose, the Deposited Securities represented by such
American Depositary Shares together with any evidence of the electronic transfer
of the Deposited Securities. The Depositary may make delivery at the Principal
Office of the Depositary of any dividends or cash distributions with respect to
the Deposited Securities represented by such American Depositary Shares, or of
any proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
The Depositary shall not accept for surrender ADSs representing less than one
Share. In the case of the surrender of ADSs representing a number other than a
whole number of Shares, the Depositary shall cause ownership of the appropriate
whole number of Shares to be Delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Shares represented by the
ADSs surrendered and remit the proceeds of such sale (net of (a) applicable fees
and charges of, and expenses incurred by, the Depositary and (b) taxes withheld)
to the person surrendering the ADSs.
At the request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held in respect of the Deposited Securities and forward any document of or
relating to title to the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
10
SECTION 2.8. Limitations on Execution and Delivery, Transfer, etc. of Receipts;
------------------------------------------------------------------
Suspension of Delivery, Transfer, etc.
--------------------------------------
(a) Additional Requirements. As a condition precedent to the execution and
-----------------------
delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or withdrawal
of any Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of ADSs or of a Receipt of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit B hereof, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of Shares
----------------------
generally or against deposits of particular Shares may be suspended, or the
issuance of ADSs against the deposit of particular Shares may be withheld, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfers of Receipts generally may be suspended, during
any period when the transfer books of the Company, the Depositary, a Registrar
or the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of this Deposit Agreement or provisions of, or
governing, the Deposited Securities, or any meeting of shareholders of the
Company or for any other reason, subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
-----------------------
Agreement or any Receipt to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
SECTION 2.9. Lost Receipts, etc. In case any Receipt shall be mutilated,
------------------
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for
11
such exchange and substitution before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser, (ii) has provided such security or
indemnity (including an indemnity bond) as may be required by the Depositary to
save it and any of its agents harmless, and (iii) has satisfied any other
reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION 2.10. Cancellation and Destruction of Surrendered Receipts; Maintenance
-----------------------------------------------------------------
of Records. All Receipts surrendered to the Depositary shall be canceled by the
----------
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy Receipts so canceled, provided
the Depositary maintains a record of all destroyed Receipts.
SECTION 2.11. Partial Entitlement ADSs. In the event any Shares are deposited
------------------------
which entitle the holders thereof to receive a per-share distribution or other
entitlement in an amount different from the Shares then on deposit (the Shares
then on deposit collectively, "Full Entitlement Shares" and the Shares with
different entitlement, "Partial Entitlement Shares"), the Depositary shall (i)
cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Agreement shall apply
to Partial Entitlement ADRs and ADSs to the same extent as Full Entitlement ADRs
and ADSs, except as contemplated by this Section 2.11. The Depositary is
authorized to take any and all other actions as may be necessary (including,
without limitation, making the necessary notations on Receipts) to give effect
to the terms of this Section 2.11. The Company agrees to give timely written
notice to the Depositary if any Shares issued or to be issued are Partial
Entitlement Shares and shall assist the Depositary with the establishment of
procedures enabling the identification of Partial Entitlement Shares upon
Delivery to the Custodian.
12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1. Proofs, Certificates and Other Information. Any person presenting
------------------------------------------
Shares for deposit, any Holder and any Beneficial Owner may be required, and
every Holder and Beneficial Owner agrees, from time to time to provide to the
Depositary and the Custodian such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of this Deposit
Agreement and the provisions of, or governing, the Deposited Securities, to
execute such certifications and to make such representations and warranties, and
to provide such other information and documentation (or, in the case of Shares
in registered form presented for deposit, such information relating to the
registration on the books of the Company or of the appointed agent of the
Company for the registration and transfer of Shares) as the Depositary or the
Custodian may deem reasonably necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8
hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation and withdrawal. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
SECTION 3.2. Liability for Taxes and Other Charges. If any tax or other
-------------------------------------
governmental charge shall become payable with respect to any ADR or any
Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer, split-up or combination of
ADRs and (subject to Section 7.8) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the
13
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
SECTION 3.3. Representations and Warranties on Deposit of Shares. Each person
---------------------------------------------------
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim,
and are not, and the American Depositary Shares issuable upon such deposit will
not be, Restricted Securities and the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
SECTION 3.4. Compliance with Information Requests. Notwithstanding any other
------------------------------------
provision of this Deposit Agreement, each Holder and Beneficial Owner agrees to
comply with requests from the Company pursuant to Dutch law (including, without
limitation, the Dutch Act of Disclosure of Holdings 1996), the rules and
requirements of the Amsterdam Stock Exchange, and any other stock exchange or
automated quotation system on which the Shares are, or will be, registered,
traded or listed or the Articles of Association of the Company, which are made
to provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns American Depositary Shares (and Shares as the case may be)
and regarding the identity of any other person(s) interested in such American
Depositary Shares and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its reasonable efforts to forward, upon
the request of the Company, and at the Company's expense, any such request from
the Company to the Holders and to forward to the Company any such responses to
such requests received by the Depositary.
SECTION 3.5. Ownership Restrictions. Notwithstanding any other provision in this
----------------------
Deposit Agreement, the Company may restrict transfers of the Shares where such
transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares
represented by the American Depositary Shares owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of American
Depositary Shares, the removal or limitation of voting rights, the mandatory
sale or disposition on behalf of a Holder or
14
Beneficial Owner of the Shares represented by the American Depositary Shares
held by such Holder or Beneficial Owner in excess of such limitations and the
cancellation of such American Depositary Shares, in each case, if and to the
extent permitted by applicable law and the Articles of Association of the
Company.
Holders and Beneficial Owners acknowledge that under the Dutch Act on Disclosure
of Holdings in Listed Companies 1996, shareholders must promptly notify the
Company and the Securities Board of the Netherlands if they have 5% or more
capital interest or voting rights in the Company, and if by obtaining or
divesting shares in the Company their capital interest or voting rights come
under a different percentage range. These ranges are 0 to 5%, 5 to 10%, 10 to
25%, 25 to 50%, 50 to 66 2/3% and 66 2/3% or more. Holders and Beneficial
Owners agree to comply with such requirements.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1. Cash Distributions. Whenever the Depositary receives confirmation
------------------
from the Custodian of receipt of any cash dividend or other cash distribution on
any Deposited Securities, or receives proceeds from the sale of any Shares,
rights, securities or other entitlements under the terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (pursuant to Section 4.8 hereof)
be converted on a practicable basis into Dollars transferable to the United
States, convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (on the terms described in Section 4.8) and will
distribute as promptly as practicable the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
SECTION 4.2. Distribution in Shares. If any distribution upon any Deposited
----------------------
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian. The
Depositary shall establish the ADS Record Date and shall, subject to Section 5.9
hereof and upon receipt of confirmation of such deposit from the Custodian,
either (i) distribute to the Holders as of the ADS Record Date in proportion to
the
15
number of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional American Depositary Shares are not so distributed,
each American Depositary Share issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional American Depositary Shares, the Depositary shall sell the
number of Shares or American Depositary Shares, as the case may be, represented
by the aggregate of such fractions and distribute the net proceeds upon the
terms described in Section 4.1. In the event that the Depositary determines that
any distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the
Company, in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective) or that no
exemption from registration exists, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of such (a) taxes and (b)
fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1. The Depositary shall
hold and/or distribute any unsold balance of such property in accordance with
the provisions of this Deposit Agreement.
SECTION 4.3. Elective Distributions in Cash or Shares. Whenever the Company
----------------------------------------
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (X) cash
upon the terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date and
establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. If a Holder elects to
receive the proposed dividend (X)
16
in cash, the dividend shall be distributed upon the terms described in Section
4.1, or (Y) in ADSs, the dividend shall be distributed upon the terms described
in Section 4.2. Nothing herein shall obligate the Depositary to make available
to Holders a method to receive the elective dividend in Shares (rather than
ADSs). There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive elective distributions on
the same terms and conditions as the holders of Shares.
SECTION 4.4. Distribution of Rights to Purchase Shares.
-----------------------------------------
(a) Distribution to ADS Holders. Whenever the Company intends to distribute to
---------------------------
the holders of the Deposited Securities rights to subscribe for additional
Shares, the Company shall give notice thereof to the Depositary at least 60 days
prior to the proposed distribution stating whether or not it wishes such rights
to be made available to Holders of ADSs. Upon receipt of a notice indicating
that the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7,
and (iii) the Depositary shall have determined that such distribution of rights
is reasonably practicable. In the event any of the conditions set forth above
are not satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date and
establish procedures to distribute rights to purchase additional ADSs (by means
of warrants or otherwise) and to enable the Holders to exercise such rights
(upon payment of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes). The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not request the Depositary to make
--------------
the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5.7 or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall, determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity, at such place and upon such terms
(including public or private sale) as it may deem proper. The Company shall
assist the Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert into Dollars and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights available to
---------------
Holders upon the terms described in Section 4.4(a) or to arrange for the sale of
the rights upon the terms described in Section 4.4(b), the Depositary shall
allow such rights to lapse.
17
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights to
the Holders unless and until a registration statement under the Securities Act
(or other applicable law) covering such offering is in effect. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive or exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
SECTION 4.5. Distributions Other Than Cash, Shares or Rights to Purchase Shares.
------------------------------------------------------------------
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares and such distribution is permissible under Dutch law, the Company shall
give timely notice thereof to the Depositary and shall indicate whether or not
it wishes such distribution to be made to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such distribution be made to Holders
of ADSs, the Depositary shall consult with the Company, and the Company shall
assist the Depositary, to determine whether such distribution to Holders is
lawful and reasonably equitable and practicable. The Depositary shall not make
such distribution unless such distribution is permissible under Dutch law and
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above,
18
the Depositary shall distribute the property so received to the Holders of
record, as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such distribution
to Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem proper and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
SECTION 4.6. [Intentionally deleted]
SECTION 4.7. Redemption. If the Company intends to exercise any right of
----------
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 60 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such notice and satisfactory documentation given by
the Company to the Depositary within the terms of Section 5.7, and only if the
Depositary shall have determined that such proposed redemption is reasonably
practicable, after consultation with the Company, the Depositary shall mail to
each Holder a notice setting forth the intended exercise by the Company of the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 hereof. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The redemption price per
ADS shall be the per share amount received by the Depositary upon the redemption
of the Deposited Securities represented by American Depositary Shares (subject
to the terms of Section 4.8 hereof and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
19
SECTION 4.8. Conversion of Foreign Currency. Whenever the Depositary or the
------------------------------
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the reasonable judgment of the Depositary can at such time be
converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall convert or cause to be converted, by sale or in any other manner that it
may determine, such Foreign Currency into Dollars, and shall distribute as
promptly as practicable such Dollars (net of any applicable fees, any reasonable
and customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of this Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a particular
Holder can be effected only with the approval or license of any government or
agency thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event, however,
shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
SECTION 4.9. Fixing of ADS Record Date. Whenever the Depositary shall receive
-------------------------
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of, or solicitation of consents or of proxies, of holders of Shares
or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of
Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise
20
of voting rights at any such meeting, to give or withhold such consent, to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. The Depositary shall make reasonable efforts
to establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any). Subject to applicable law and the
provisions of Section 4.1 through 4.8 and to the other terms and conditions of
this Deposit Agreement, only the Holders of Receipts at the close of business in
New York on such ADS Record Date shall be entitled to receive such distribution,
to give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
SECTION 4.10. Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting) mail to registered Holders: (a) such notice of meeting or solicitation
of consent or proxy, (b) a statement that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
Articles of Association of the Company and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given. Voting
instructions may be given only in respect of a number of American Depositary
Shares representing a whole number of Shares or other Deposited Securities. Upon
the timely receipt of written instructions of a Holder of American Depositary
Shares on the ADS Record Date, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Articles of Association of the Company and the provisions of the Deposited
Securities, to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by such Holder's
American Depositary Shares in accordance with such instructions.
Neither the Depositary, the Custodian nor their respective nominees, if any,
shall, under any circumstances, exercise any discretion as to voting and neither
the Depositary nor the Custodian shall vote, attempt to exercise the right to
vote, or in any way make use of the Shares or other Deposited Securities
represented by American Depositary Shares except pursuant to and in accordance
with such written instructions from Holders. If voting instructions are received
by the Depositary from any Holder on or before the date established by the
Depositary for the receipt of such instructions, which are signed but without
further indication as to specific instructions, the Depositary will deem such
Holder to have instructed the Depositary to vote in favor of the items set forth
in such instructions. Shares or other Deposited Securities represented by
American Depositary Shares for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
21
There can be no assurance that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner.
SECTION 4.11. Changes Affecting Deposited Securities. Upon any change in nominal
--------------------------------------
or par value, split-up, cancellation, consolidation or any other
reclassification of, Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such new securities. The Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of an opinion of counsel to the Company
satisfactory to the Depositary that such distributions are not in violation of
any applicable laws or regulations, execute and deliver additional Receipts as
in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in Exhibit A hereto, specifically describing such new
Deposited Securities or corporate change. The Company agrees to, jointly with
the Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
SECTION 4.12. Available Information. The Company is subject to the periodic
---------------------
reporting requirements of the Exchange Act and accordingly files certain
information with the Commission. These reports and documents can be inspected
and copied at the public reference facilities maintained by the Commission
located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000 and at
the Commission's New York City office located at Seven World Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
22
SECTION 4.13. Reports. The Depositary shall make available for inspection by
-------
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail to Holders copies of such reports when furnished by the Company pursuant to
Section 5.6.
SECTION 4.14. List of Holders. Promptly upon written request by the Company, the
---------------
Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares of all Holders.
SECTION 4.15. Taxation. The Depositary will, and will instruct the Custodian to,
--------
forward to the Company or its agents such information from its records as the
Company may reasonably request to enable the Company or its agents to file the
necessary tax reports with governmental authorities or agencies. The Depositary,
the Custodian or the Company and its agents may file such reports as are
necessary to reduce or eliminate applicable taxes on dividends and on other
distributions in respect of Deposited Securities under applicable tax treaties
or laws for the Holders and Beneficial Owners. In accordance with instructions
from the Company and to the extent practicable, the Depositary or the Custodian
will take reasonable administrative actions to obtain tax refunds, reduced
withholding of tax at source on dividends and other benefits under applicable
tax treaties or laws with respect to dividends and other distributions on the
Deposited Securities. Holders and Beneficial Owners of American Depositary
Shares may be required from time to time, and in a timely manner, to file such
proof of taxpayer status, residence and beneficial ownership (as applicable), to
execute such certificates and to make such representations and warranties, or to
provide any other information or documents, as the Depositary or the Custodian
may deem necessary or proper to fulfill the Depositary's or the Custodian's
obligations under applicable law. The Holders and Beneficial Owners shall
indemnify the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents and Affiliates against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes,
additions to tax, penalties or interest arising out of any refund of taxes,
reduced rate of withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any amount
on account of taxes or governmental charges, or pays any other tax in respect of
such distribution (i.e. stamp duty tax, capital gains or other similar tax), the
Company shall (and shall cause such agent to) remit as promptly as practicable
to the Depositary information about such taxes or governmental charges withheld
or paid in a form satisfactory to the Depositary and, if so requested, the tax
receipt (or other proof of payment to the applicable governmental authority)
therefor. The Depositary shall, to the extent required by U.S. law, report to
Holders any taxes withheld by it or the Custodian, and, if such information is
provided to it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary. Neither the Depositary nor the
Custodian shall be liable for the
23
failure by any Holder or Beneficial Owner to obtain the benefits of credits on
the basis of non-U.S. tax paid against such Holder's or Beneficial Owner's
income tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
shall not incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the American
Depositary Shares, including without limitation, tax consequences resulting from
the Company (or any of its subsidiaries) being treated as a "Foreign Personal
Holding Company," or as a "Passive Foreign Investment Company" (in each case as
defined in the U.S. Internal Revenue Code and the regulations issued thereunder)
or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1. Maintenance of Office and Transfer Books by the Registrar. Until
---------------------------------------------------------
termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
for the purpose of withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and transfers
of Receipts which at all reasonable times shall be open for inspection by the
Company and by the Holders of such Receipts, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such Receipts in the interest of a business or object other than the
business of the Company or other than a matter related to this Deposit Agreement
or the Receipts.
The Registrar may close the transfer books with respect to the Receipts, at any
time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any Receipts or the American Depositary Shares evidenced thereby are listed
on one or more stock exchanges or automated quotation systems in the United
States, the Depositary shall act as Registrar or appoint a Registrar or one or
more co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed and
a substitute or substitutes appointed by the Depositary.
SECTION 5.2. Exoneration. Neither the Depositary nor the Company shall be
-----------
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason
24
of any provision of any present or future law or regulation of the United
States, The Netherlands or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future of the Articles of Association of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any provision
of this Deposit Agreement.
SECTION 5.3. Standard of Care. The Company and its agents assume no obligation
----------------
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith.
The Depositary and its agents assume no obligation and shall not be subject to
any liability under this Deposit Agreement or the Receipts to Holders or
Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company,
nor any of their respective controlling persons, or agents, shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
25
The Depositary and its agents shall not be liable for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any vote is cast or the effect of any vote, provided that any such action
or omission is in good faith and in accordance with the terms of this Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of Successor
-------------------------------------------------------------------
Depositary. The Depositary may at any time resign as Depositary hereunder by
----------
written notice of resignation delivered to the Company, such resignation to be
effective on the earlier of (i) the 60th day after delivery thereof to the
Company (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof), or (ii) upon the appointment by the Company
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice of
such removal, which removal shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall be required by the
Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company shall, (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in Sections 5.08 and
5.09), (ii) duly assign, transfer and deliver all right, title and interest to
the Deposited Securities to such successor, and (iii) deliver to such successor
a list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
26
SECTION 5.5. The Custodian. The Depositary has initially appointed Citibank
-------------
N.A., Amsterdam as Custodian for the purpose of this Deposit Agreement. The
Custodian or its successors in acting hereunder shall be subject at all times
and in all respects to the direction of the Depositary for the Deposited
Securities for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and no other Custodian has
previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian that is organized under the laws of The Netherlands. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may appoint
an additional custodian with respect to any Deposited Securities, or discharge
the Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of Receipts, each other Custodian
and the Company.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing,
and shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on
the direction of such successor depositary.
SECTION 5.6. Notices and Reports. On or before the first date on which the
-------------------
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) an English language version
of the other notices, reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities
and (b) the English language versions of the Company's annual and semi-annual
reports prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the Company, for the
mailing of copies thereof to all registered Holders or make such notices,
reports and other communications available to all registered Holders on a basis
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement. The
27
Company has delivered to the Depositary and the Custodian a copy of the
Company's Articles of Association along with the provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any Affiliate
of the Company in connection with such Shares, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein. The Depositary may
rely upon such copy for all purposes of this Deposit Agreement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the registered Holders of the Receipts evidencing the American
Depositary Shares representing such Shares governed by such provisions at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
SECTION 5.7. Issuance of Additional Shares, ADSs etc. The Company agrees that in
---------------------------------------
the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or not
application of such transaction to Holders and Beneficial Owners (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act and (b) an opinion of
Dutch counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of The Netherlands
and (2) all requisite regulatory consents and approvals have been obtained in
The Netherlands. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the
28
Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act or have been registered under the Securities Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing in
this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8. Indemnification. The Depositary agrees to indemnify the Company and
---------------
its directors, officers, employees, agents and Affiliates against, and hold each
of them harmless from, any direct loss, liability, tax, charge or expense of any
kind whatsoever (including, but not limited to, the reasonable fees and expenses
of counsel) which may arise out of acts performed or omitted by the Depositary
under the terms hereof due to the negligence or bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as the
case may be, (b) out of or as a result of any offering documents in respect
thereof or (c) out of acts performed or omitted, including, but not limited to,
any delivery by the Depositary on behalf of the Company of information regarding
the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, in any such
case (i) by the Depositary, the Custodian or any of their respective directors,
officers, employees, agents and Affiliates, except to the extent such loss,
liability, tax, charge or expense is due to the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and Affiliates.
The obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person") shall
notify the person from whom it is seeking indemnification (the "indemnifying
person") of the commencement of any indemnifiable action or claim promptly after
such indemnified person becomes aware of such commencement (provided that the
failure to make such notification shall not affect such indemnified person's
rights to indemnification hereunder except to the extent the indemnifying person
is materially prejudiced by such failure) and shall consult in good faith with
the indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or settle any
action or claim that may give rise to an indemnity
29
hereunder without the consent of the indemnifying person, which consent shall
not be unreasonably withheld.
SECTION 5.9. Fees and Charges of Depositary. The Company, the Holders, the
------------------------------
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to pay to the Depositary as promptly as practicable such
other fees and charges and to reimburse the Depositary for such out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and expenses as
provided above shall survive the termination of this Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4 hereof, such right shall extend for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10. Pre-Release. Subject to the further terms and provisions of this
-----------
Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 and (ii) deliver Shares
prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to
Section 2.7, including ADSs which were issued under (i) above but for which
Shares may not have been received (each such transaction a "Pre-Release
Transaction"). The Depositary may receive ADSs in lieu of Shares under (i) above
and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs, and (z) agrees to any additional
restrictions or requirements that the Depositary deems reasonably appropriate,
(b) at all times fully collateralized with cash,
30
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment/Supplement. The Receipts outstanding at any time, the
--------------------
provisions of this Deposit Agreement and the form of Receipt attached thereto
and to be issued under the terms thereof may at any time and from time to time
be amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Share(s) to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share(s), to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended and supplemented thereby. In no event shall any amendment
or supplement impair the right of the Holder to surrender such Receipt and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
31
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
SECTION 6.2. Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. This Deposit
Agreement shall also terminate at any time upon the mandatory conversion,
exchange or redemption of Deposited Securities for which this Deposit Agreement
is not amended by agreement between the Company and the Depositary (the date of
termination in such case being the effective date of such conversion, exchange
or redemption), in which case the Depositary shall provide written notice
thereof to the Holders as soon as reasonably practicable. If 60 days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and in either
case a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4, the Depositary may terminate this
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of this Deposit Agreement, the
Holder will, upon surrender of such Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Section 2.7 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to a designated NECIGEF
Participant, of the amount of Deposited Securities represented by such Receipt.
If any Receipts shall remain outstanding after the date of termination of this
Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in Section 2.7, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts,
the Deposited Securities and the American Depositary Shares, except to account
for such net proceeds and other cash (after deducting, or charging, as the case
may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the
32
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed an original and all of such
counterparts together shall constitute one and the same agreement. Copies of
this Deposit Agreement shall be maintained with the Depositary and shall be open
to inspection by any Holder during business hours.
SECTION 7.2. No Third-Party Beneficiaries. This Deposit Agreement is for the
----------------------------
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
SECTION 7.3. Severability. In case any one or more of the provisions contained
------------
in this Deposit Agreement or in the Receipts should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Holders and Beneficial Owners as Parties; Binding Effect. The
--------------------------------------------------------
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be deemed to have knowledge
of and be bound by all of the terms and conditions thereof and of any Receipt by
acceptance thereof or any beneficial interest therein.
SECTION 7.5. Notices. Any and all notices to be given to the Company shall be
-------
deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Xxxx. Xxxxxxxxxxxx 000, X.X. Xxx 00000, 0000 X.X., Xxxxxxxxx, Xxx
Xxxxxxxxxxx, Attention: General Counsel, with a copy to Holme, Xxxxxxx & Xxxx
LLP, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000-0000, Attention: W. Xxxx
Xxxxxx, Esq. or to any other address which the Company may specify in writing to
the Depositary.
33
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, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR Department, or to
any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or cable, telex
or facsimile transmission, confirmed by letter, addressed to Europlaza,
Xxxxxxxxxxx 00X, 0000 X.X., Xxxxxxxxx, Xxx Xxxxxxxxxxx or to any other address
which the Custodian may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been duly
given if personally delivered or sent by mail or cable, telex or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box or delivered to an air courier service. The Depositary or the Company
may, however, act upon any cable, telex or facsimile transmission received by it
from the other or from any Holder, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6. Governing Law and Jurisdiction. This Deposit Agreement and the
------------------------------
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited Securities and
the obligations and duties of the Company in respect of the holders of Shares
and other Deposited Securities, as such, shall be governed by the laws of The
Netherlands (or, if applicable, such other laws as may govern the Deposited
Securities). Except as set forth in the following paragraph of this Section 7.6,
the Company and the Depositary agree that the federal or state courts in the
City of New York shall have jurisdiction to hear and determine any suit, action
or proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers United International Holdings,
Inc. (the "Agent") now at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx, 00000 as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
34
state court as described in the preceding sentence or in the next paragraph of
this Section 7.6. If for any reason the Agent shall cease to be available to act
as such, the Company agrees to designate a new agent in New York or Colorado on
the terms and for the purposes of this Section 7.6 reasonably satisfactory to
the Depositary. The Company further hereby irrevocably consents and agrees to
the service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service, by registered or
certified airmail, postage prepaid, of a copy thereof upon the Agent (whether or
not the appointment of such Agent shall for any reason prove to be ineffective
or such Agent shall fail to accept or acknowledge such service), with a copy
mailed to the Company by registered or certified air mail, postage prepaid, to
its address provided in Section 7.5 hereof. The Company agrees that the failure
of the Agent to give any notice of such service to it shall not impair or affect
in any way the validity of such service or any judgment rendered in any action
or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally
agree that in the event that a Holder or Beneficial Owner brings a suit, action
or proceeding against (a) the Company, (b) the Depositary in its capacity as
Depositary under this Deposit Agreement or (c) against both the Company and the
Depositary, in any such case, in any state or federal court of the United
States, and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending and, for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
No disclaimer of liability under the Securities Act is intended by any provision
of the Deposit Agreement.
The provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION 7.7. Assignment. Subject to the provisions of Section 5.4 hereof, this
----------
Deposit Agreement may not be assigned by either the Company or the Depositary
without the prior written consent of the non-assigning party.
SECTION 7.8. Compliance with U.S. Securities Laws. Notwithstanding anything in
------------------------------------
this Deposit Agreement to the contrary, the withdrawal or delivery of Deposited
Securities will not be suspended by the Company or the Depositary except as
would be permitted by Instruction I.A.(1)
35
of the General Instructions to Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
SECTION 7.9. Titles. All references in this Deposit Agreement to exhibits,
------
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
36
IN WITNESS WHEREOF, UNITED PAN-EUROPE COMMUNICATIONS N.V. and CITIBANK, N.A.
have duly executed this Deposit Agreement as of the day and year first above set
forth and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued in
accordance with the terms hereof, or upon acquisition of any beneficial interest
therein.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: _______________________________
Name:
Title:
CITIBANK, N.A.
By: _______________________________
Name:
Title:
37
Number __________ CUSIP
American Depositary
Shares (Each American
Depositary Share representing
one fully paid ordinary share,
nominal value Euros 0.30 each)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
UNITED PAN-EUROPE COMMUNICATIONS N.V.
(Organized under the laws of The Netherlands)
CITIBANK, N.A., a national banking association organized and existing under the
laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, nominal value Euros 0.30 each, including evidence of rights to receive
such ordinary shares (the "Shares") of United Pan-Europe Communications N.V, a
corporation incorporated under the laws of The Netherlands (the "Company"). As
of the date of the Deposit Agreement (as hereinafter defined), each ADS
represents one Share deposited under the Deposit Agreement with the Custodian
which at the date of execution of the Deposit Agreement is Citibank N.A.,
Amsterdam (the "Custodian"). The ratio of American Depositary Shares to shares
of stock is subject to subsequent amendment as provided in Article IV of the
Deposit Agreement. The Depositary's Principal Office is located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an issue
---------------------
of American Depositary Receipts ("Receipts"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of
February __, 1999 (as amended from time to time, the "Deposit Agreement"), by
and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of American Depositary Shares ("ADSs") evidenced by Receipts
issued thereunder, each of whom by accepting an ADS (or an interest therein)
agrees to become a party thereto and will be deemed to have knowledge thereof
and becomes bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners of
Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time, received in respect of such Shares and held thereunder (such
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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 reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the American Depositary Shares into DTC. Each Beneficial Owner
of American Depositary Shares held through DTC must rely on the procedures of
DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such American Depositary Shares.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
------------------------------------------------------------
surrender, at the Principal Office of the Depositary, of ADS evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (10) hereof
and in Section 5.9 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of this Receipt, the
Deposit Agreement, the Company's Articles of Association, and the provisions of
or governing the Deposited Securities and other applicable laws, the Holder of
the American Depositary Shares evidenced hereby is entitled to Delivery by
electronic transfer recorded on the transfer books of The Netherlands Central
Institute for Giro Securities (Nederlands Centraal Instituut voor Giraal
Effectenverkeer B.V.) ("NECIGEF"), to the participant having an account at
NECIGEF ("NECIGEF Participant") designated in such Holder's order, of the
Deposited Securities represented by the ADS so surrendered and delivery of any
other securities, property and cash to which such Holder is then entitled in
respect to such ADS.
A Receipt surrendered for such purposes shall, if so required by the Depositary,
be properly endorsed in blank or accompanied by proper instruments of transfer
in blank. If the Depositary so requires, the Holder hereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to the NECIGEF Participant
designated in such order. Thereupon, the Depositary shall direct the Custodian
to Deliver (as promptly as practicable) by electronic transfer recorded on the
transfer books of NECIGEF, subject to the terms and conditions of the Receipts,
the Deposit Agreement, the Articles of Association of the Company, and the
provisions of or governing the Deposited Securities, applicable laws and the
rules of NECIGEF now or hereafter in effect, to the NECIGEF Participant
designated in 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 ADSs together with any evidence of the electronic transfer
of the Deposited Securities. 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 the
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ADSs evidenced by this Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing ADSs
representing less than one Share. In the case of surrender of a Receipt
evidencing a number of ADS representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) return to the person surrendering such ADSs the
number of ADSs representing any remaining fractional Share, or (ii) sell or
cause to be sold the fractional Shares represented by the ADSs so surrendered
and remit the proceeds thereof (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs. At the request, risk and expense of any Holder so
surrendering ADSs, and for the account of such Holder, the Depositary shall
direct the Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held in respect of the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Principal Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the terms and
-------------------------------------------------
conditions of the applicable Receipt(s), the Deposit Agreement and the U.S.
securities laws, the Registrar shall register transfers of Receipts on its book
upon surrender at the Principal Office of the Depositary of a Receipt by the
Holder thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard industry practice) and duly stamped as may be required
by the laws of the State of New York and of the United States of America.
Subject to the terms and conditions of the Deposit Agreement including payment
of the applicable fees and charges of the Depositary, the Depositary shall
execute and deliver a new Receipt(s) (and if necessary cause the Registrar to
countersign such Receipt(s)) and deliver the same to or upon the order of the
person entitled thereto evidencing the same aggregate number of ADSs as those
evidenced by the Receipt(s) surrendered. Upon surrender of a Receipt or Receipts
for the purpose of effecting a split-up or combination of such Receipt or
Receipts and upon payment of the applicable fees and charges of the Depositary
and subject to the terms and conditions of the applicable Receipt(s), the
Deposit Agreement and the U.S. securities laws, the Depositary shall execute and
deliver new Receipt(s) evidencing the same aggregate number of ADSs as the
Receipt(s) surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to
---------------------------------------------
the execution and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts
A-3
and ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary or the Company consistent with the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the delivery of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Company, Depositary, a Registrar or the Share Registrar
are closed or if any such action is deemed necessary or advisable by the
Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange upon which the Receipts or Share are
listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other provision of
------------------------------------
the Deposit Agreement or this Receipt, each Holder and Beneficial Owner of the
ADSs represented hereby agrees to comply with requests from the Company pursuant
to Dutch law, the rules and requirements of the Amsterdam Stock Exchange, and of
any stock exchange or automated quotation system on which Shares or ADSs are or
will be registered, traded or listed, the Articles of Association of the
Company, which are made to provide information as to the capacity in which such
Holder or Beneficial Owner owns ADSs (and Shares, as the case may be) and
regarding the identity of any other persons then or previously interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such request. The
Depositary agrees to use reasonable efforts to forward, upon the request of the
Company and at the Company's expense, any such requests to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the Shares
----------------------
where such transfer might result in ownership of Shares exceeding limits under
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial
A-4
Owner in excess of the limits set forth in the preceding sentence, including but
not limited to the imposition of restrictions on the transfer of ADSs, the
removal or limitation of voting rights or a mandatory sale or disposition on
behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs
held by such Holder or Beneficial Owner in excess of such limitations, if and to
the extent such disposition is permitted by applicable law and the Articles of
Association of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or other
-------------------------------------------------------
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities or ADSs, such tax, or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary. The Company, the
Custodian and/or Depositary may withhold or deduct from any distributions made
in respect of Deposited Securities and may sell for the account of the Holder
and/or Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner hereof
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver Receipts,
register the transfer, split-up or combination of ADRs and (subject to Article
(24) hereof) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian and any of
their agents, employees and Affiliates for, and hold each of then harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
(8) Representations and Warranties of Depositors. Each person depositing Shares
--------------------------------------------
under the Deposit Agreement shall be deemed thereby to represent and warrant
that (i) such Shares are duly authorized, validly issued, fully paid,
non-assessable and legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Shares, have been validly waived
or exercised, (iii) the person making such deposit is duly authorized so to do
and (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities and
the Share presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit and
withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof
and the transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any NECIGEF Participant
-------------------------------------------------
presenting Shares for deposit by electronic transfer recorded in the books of
NECIGEF, any Holder and any Beneficial Owner may be required, and every Holder
and Beneficial Owner agrees, from time to time to provide to the Depositary and
the Custodian such proof of citizenship or residence, taxpayer status, payment
of all applicable taxes or other governmental charges, exchange control
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws and the terms of the Deposit Agreement and the
provisions of, or governing, the
A-5
Deposited Securities, to execute such certifications and to make such
representations and warranties and to provide such other information or
documentation as the Depositary or the Custodian may deem necessary or proper or
as the Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement. Subject to Article
(24) hereof and the terms of the Deposit Agreement, the Depositary and the
Registrar, as applicable, may withhold the delivery or registration of transfer
of any Receipt or the distribution or sale of any dividend or other distribution
of rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are
executed, or such representations and warranties made or such information and
documentation are provided, in each case to the Depositary's, the Registrar's
and the Company's satisfaction.
Holders and Beneficial Owners acknowledge that under the Dutch Act on Disclosure
of Holdings in Listed Companies 1996, shareholders must promptly notify the
Company and the Securities Board of the Netherlands if they have 5% or more
capital interest or voting rights in the Company, and if by obtaining or
divesting shares in the Company their capital interest or voting rights come
under a different percentage range. These ranges are 0 to 5%, 5 to 10%, 10 to
25%, 25 to 50%, 50 to 66 2/3% and 66 2/3 % or more. Holders and Beneficial
Owners agree to comply with such requirements.
(10) Charges of Depositary. The Depositary shall charge the following fees for
---------------------
the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraph (iii) and
(iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (i.e. upon the sale of rights and other
entitlements); no fee shall be payable for the distribution of
cash dividends or the distribution of ADSs pursuant to stock
dividends.
(iv) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) for the distribution of ADSs
pursuant to free share distributions or the exercise of
rights.
In addition, Holders, Beneficial Owners, any person depositing Shares for
deposit and any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
A-6
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such fees as may from time to time be in effect for the
transfer of Shares or other Deposited Securities to or from
the name of the Custodian, upon the making of deposits and
withdrawals,
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
The Company agrees to pay to the Depositary, as promptly as practicable, such
other charges and expenses of the Depositary as the Depositary and the Company
may agree to from time to time. Fees and charges may, at any time and from time
to time, be changed by agreement between the Depositary and Company but, in the
case of fees and charges payable by Holders or Beneficial Owners, only in the
manner contemplated by Article (22) of this Receipt. The Depositary will
provide, without charge, a copy of its latest fee schedule to anyone upon
request. The charges and expenses of the Custodian are for the sole account of
the Depositary.
(11) Title to Receipts. Subject to the limitations contained herein and in the
-----------------
Deposit Agreement, title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of this Receipt with the same effect as a certificated
security under the laws of the State of New York, provided this Receipt has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary 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 all purposes. The Depositary shall
have no obligation nor be subject to any liability hereunder or under the
Deposit Agreement to any holder of a Receipt unless such holder is the Holder of
such Receipt registered on the books of the Depositary, or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner's representative
is the Holder registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the American Depositary Shares
-------------------
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the
A-7
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered by the Registrar in
the books maintained by the Registrar for the purpose of registration of the
issuance and transfer of Receipts.
(13) Available Information; Reports; Inspection of Transfer Books. The Company
------------------------------------------------------------
is subject to the periodic reporting requirements of the Exchange Act and
accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000 and at the Commission's New York City office located at
Seven World Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of issuances and transfers
of Receipts which at all reasonable times shall be open for inspection by the
Company and by the Holders of such Receipts, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such Receipts in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the Receipts.
The Registrar may close the transfer books with respect to the Receipts, at any
time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Article (24)
hereof.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: ______________________________ By: ______________________________
Authorized Representative Vice President
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
A-8
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the Depositary
------------------------------------------------
receives confirmation from the Custodian of receipt of any cash dividend or
other cash distribution on any Deposited Securities, or receives proceeds from
the sale of any Shares, rights securities or other entitlements under the
Deposit Agreement, the Depositary will, if at the time of receipt thereof any
amounts received in a Foreign Currency can, in the judgment of the Depositary
(upon the terms of the Deposit Agreement), be converted on a practicable basis
into Dollars transferable to the United States, convert or cause to be converted
such dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement) and will distribute as promptly as practicable the amount
thus received (net of (a) applicable fees and charges of, and expenses incurred
by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of
the ADS Record Date in proportion to the number of ADS held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs then outstanding.
If the Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Company shall or cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their nominees. The Depositary shall, subject
to and in accordance with the Deposit Agreement and upon receipt of confirmation
of such deposit from the Custodian, (i) distribute to the Holders as of the ADS
Record Date previously established by the Depositary in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs, which represent in
aggregate the number of Shares received as such dividend, or free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
(a) the applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes), or (ii) if additional ADSs are not so distributed, each ADS
issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net (a) of the applicable fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms set forth in the Deposit Agreement.
A-9
In the event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company, in the fulfillment of
its obligations under the Deposit Agreement, has furnished an opinion of U.S.
counsel determining that Shares must be registered under the Securities Act or
other laws in order to be distributed to Holders (and no such registration
statement has been declared effective), the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable and the Depositary shall distribute
the net proceeds of any such sale (after deduction of (a) taxes and fees and (b)
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms of the Deposit Agreement. The Depositary shall hold
and/or distribute any unsold balance of such property in accordance with the
provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Company and the Depositary shall determine whether such
distribution is lawful and reasonably practicable. If so, the Depositary shall,
to the extent permitted by law and subject to the terms and conditions of the
Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
Record Date and establish procedures to enable the Holder hereof to elect to
receive the proposed distribution in cash or in additional ADSs. If a Holder
elects to receive the distribution in cash, the dividend shall be distributed as
in the case of a distribution in cash. If the Holder hereof elects to receive
the distribution in additional ADSs, the distribution shall be distributed as in
the case of a distribution in Shares. Nothing herein or in the Deposit Agreement
shall obligate the Depositary to make available to the Holder hereof a method to
receive the elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
Upon timely receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares (or any rights of any other
nature) to be made available to Holders of ADSs, the Company and the Depositary
shall determine whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to any Holders only if (i) the Company shall have requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures to distribute
rights to purchase additional ADSs (by means of warrants or otherwise) and to
enable the Holders to exercise the rights (upon payment of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes). Nothing
herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs).
A-10
If (i) the Company does not request the Depositary to make the rights available
to Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall, upon
consultation with the Company, determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity, at such place
and upon such terms (including public and private sale) as it may deem proper.
The Depositary shall, upon such sale, convert and distribute proceeds of such
sale (net of applicable fees and charges of, and expenses incurred by, the
Depositary and taxes) upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to make any rights available to Holders or to arrange for
the sale of the rights upon the terms described above, the Depositary shall
allow such rights to lapse. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise, or
(iii) the content of any materials forwarded to the ADR Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the contrary, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect. In
the event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall
be reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to exercise rights on the same terms and
conditions as the holders of Shares or to exercise such rights. Nothing herein
or in the Deposit Agreement shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other than
cash, Shares or rights to purchase additional Shares, to be made to Holders of
ADSs, the Depositary and the Company shall determine whether such distribution
to Holders is lawful and reasonably practicable. The Depositary shall not make
such distribution unless such distribution is permission under Dutch law and (i)
the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received the documentation
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contemplated in the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution is reasonably practicable. Upon satisfaction
of such conditions, the Depositary shall distribute the property so received to
the Holders of record, as of the ADS Record Date, in proportion to the number of
ADSs held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem proper and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it intends
----------
to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) mail to each Holder a notice setting forth the Company's intention
to exercise the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
the Deposit Agreement and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Units or
Deposited Securities represented by each ADS redeemed.
(16) Fixing of Record Date. Whenever the Depositary shall receive notice of the
---------------------
fixing of a record date by the Company for the determination of holders of
Deposited Securities entitled to receive any distribution (whether in cash,
Shares, rights or other distribution), or whenever for any reason the Depositary
causes a change in the number of Shares that are represented by each ADS, or
whenever the Depositary shall receive notice of any meeting of, or solicitation
of consents or proxies of, holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, or
A-12
any other matter, the Depositary shall fix a record date ("ADS Record Date") for
the determination of the Holders of Receipts who shall be entitled to receive
such distribution, to give instructions for the exercise of voting rights at any
such meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities. As soon as practicable after receipt of
------------------------------
notice of any meeting at which the holders of Shares are entitled to vote, or of
solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company) mail to Holders: (a)
such notice of meeting or solicitation of consent or proxies, (b) a statement
that the Holders as of the ADS Record Date will be entitled, subject to any
applicable law, the Company's Articles of Association and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADS and (c) a brief statement as to the
manner in which such instructions may be given. Upon the timely receipt of
written instructions of a Holder of ADSs on the ADS Record Date, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law and
the provisions of the Articles of Association of the Company and the provisions
of the Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities represented by ADSs held by such Holder in
accordance with such instructions.
Neither the Depositary nor the Custodian nor their respective nominees, if any,
shall under any circumstances exercise any discretion as to voting and neither
the Depositary nor the Custodian shall vote, attempt to exercise the right to
vote, or in any way make use of, for the purposes of establishing a quorum or
otherwise, the Shares or other Deposited Securities represented by ADS except
pursuant to and in accordance with such written instructions from Holders. If
voting instructions are received by the Depositary from any Holder on or before
the date established by the Depositary for the receipt of such instructions,
which are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Shares or other Deposited
Securities represented by ADS for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted. There can be no
assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or par
--------------------------------------
value, split-up, cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company
A-13
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such new securities. The Depositary may, with the Company's approval, and shall,
if the Company shall so request, subject to the terms of the Deposit Agreement
and receipt of satisfactory documentation contemplated by the Deposit Agreement,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in this
Exhibit A to the Deposit Agreement, specifically describing such new Deposited
Securities or corporate change. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, with the Company's approval, and shall if the Company
requests, subject to receipt of satisfactory legal documentation contemplated in
the Deposit Agreement, sell such securities at public or private sale, at such
place or places and upon such terms as it may deem proper and may allocate the
net proceeds of such sales (net of (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be obligated to
-----------
do or perform any act which is inconsistent with the provisions of the Deposit
Agreement or incur any liability (i) if the Depositary or the Company shall be
prevented or forbidden from, or subjected to any civil or criminal penalty or
restraint on account of, or delayed in, doing or performing any act or thing
required by the terms of the Deposit Agreement and this Receipt, by reason of
any provision of any present or future law or regulation of the United States,
The Netherlands or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADS or (v) for any consequential
A-14
or punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no obligation and shall
----------------
not be subject to any liability under this Deposit Agreement or the Receipts to
Holders or Beneficial Owners or other persons, except that the Company and its
agents agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith. The Depositary and its agents assume
no obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Depositary and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith. The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
-------------------------------------------------------------------
Depositary. The Depositary may at any time resign as Depositary under the
----------
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary by the Company and its acceptance of such appointment as provided in
the Deposit Agreement. The Depositary may at any time be removed by the Company
by written notice of such removal which notice shall be effective on the earlier
of (i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary by the Company and its acceptance of such
appointment as provided in the Deposit Agreement. In case at any time the
Depositary acting hereunder shall resign or be removed, the Company shall use
its best efforts to appoint a successor depositary which shall be a bank or
trust company having an office in the Borough of Manhattan, the City of New
York. Every successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in the Deposit
A-15
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
(22) Amendment/Supplement. This Receipt and any provisions of the Deposit
--------------------
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s), to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, or
rules or regulations.
(23) Termination. The Depositary shall, at any time at the written direction of
-----------
the Company, terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. If 60 days shall
have expired after (i) the Depositary shall have delivered to the Company a
written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing
A-16
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holders' Receipt(s) at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of ADSs referred to
in Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to a designated NECIGEF
Participant, of the amount of Deposited Securities represented by such Receipt.
If any Receipts shall remain outstanding after the date of termination of the
Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, subject to the conditions
and restrictions set forth in the Deposit Agreement, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination of the Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement with respect to the Receipts
and the Shares, the Deposited Securities and the ADSs, except to account for
such net proceeds and other cash (after deducting, or charging, as the case may
be, in each case the charges of the Depositary for the surrender of a Receipt,
any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions in
------------------------------------
this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the further terms
---------------------------------------------
and provisions of this Article (25), the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in
A-17
ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares. In its capacity as Depositary, the Depositary shall not lend Shares or
ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) accompanied
by or subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (w) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
A-18
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
--------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever. If the endorsement be executed
by an attorney, executor, administrator,
trustee or guardian, the person executing
the endorsement must give his/her full title
in such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this Receipt.
All endorsements or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
SIGNATURE GUARANTEED
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A-19
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Holders, the Beneficial Owners and the persons depositing Shares or
surrendering ADSs for cancellation agree to pay the following fees of the
Depositary:
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Service Rate By Whom Paid
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(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made or
of Shares (excluding issuances fraction thereof) issued party receiving ADSs
contemplated by paragraphs (3)(b) and
(5) below).
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(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and cash fraction thereof) surrendered. withdrawal.
against surrender of ADSs.
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(3) Distribution of (a) cash No fee. Person to whom distribution is made.
dividend or (b) ADSs pursuant to stock
dividends.
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(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs held. Person to whom distribution is made.
(i.e. upon sale of rights and other
entitlements).
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(5) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs issued. Person to whom distribution is made.
to free share distributions or
exercise of rights.
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II. Charges Holders, Beneficial Owners, persons depositing Shares for deposit
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and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such fees as may from time to time be in effect for the transfer of Shares
or other Deposited Securities to or from the name of the Custodian, upon the
making of deposits and withdrawals;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the person
depositing Shares or Holders and Beneficial Owners of ADSs;
B-1
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with the
deliver of Deposited Securities.
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