Execution Copy
DEPOSIT AGREEMENT
by and among
TNT POST GROUP 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
Dated as of June 15, 1998
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
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" ......................................2
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
SECTION 1.15 "DTC Participant" .............................................3
SECTION 1.16 "Exchange Act" ................................................3
SECTION 1.17 "Foreign Currency" ............................................3
SECTION 1.18 "Guilders" ....................................................3
SECTION 1.19 "Holder" ......................................................3
SECTION 1.20 "NECIGEF"......................................................3
SECTION 1.21 "Netherlands" or "The Netherlands" ............................3
SECTION 1.22 "Pre-Release" .................................................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 "Shares" ......................................................4
SECTION 1.29 "United States" ...............................................5
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 .....................................5
SECTION 2.2 Form and Transferability of Receipts ..........................5
Page
SECTION 2.3 Deposit with Custodian ........................................7
SECTION 2.4 Registration of Shares ........................................7
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 Receipts and Withdrawal of Deposited Securities ..9
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc...............10
SECTION 2.9 Lost Receipts, etc............................................11
SECTION 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records .......................................11
SECTION 2.11 Partial Entitlement ADSs .....................................12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF RECEIPTS
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
SECTION 4.1 Cash Distributions ...........................................14
SECTION 4.2 Distribution in Shares .......................................15
SECTION 4.3 Elective Distributions in Cash or Shares .....................16
SECTION 4.4 Distribution of Rights .......................................16
SECTION 4.5 Distributions Other Than Cash, Shares or Rights ..............18
SECTION 4.6 Distributions with Respect to Deposited Securities in
Bearer Form ..................................................19
SECTION 4.7 Redemption ...................................................19
SECTION 4.8 Conversion of Foreign Currency ...............................19
SECTION 4.9 Fixing of Record Date ........................................20
SECTION 4.10 Voting of Deposited Securities ...............................20
SECTION 4.11 Changes Affecting Deposited Securities .......................22
SECTION 4.12 Available Information ........................................23
SECTION 4.13 Reports.......................................................23
SECTION 4.14 List of Holders ..............................................23
SECTION 4.15 Taxation .....................................................23
Page
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar ....24
SECTION 5.2 Exoneration ..................................................25
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 ................................................27
SECTION 5.6 Notices and Reports ..........................................27
SECTION 5.7 Issuance of Additional Shares, ADSs, etc......................28
SECTION 5.8 Indemnification ..............................................29
SECTION 5.9 Fees and Charges of Depositary ...............................30
SECTION 5.10 Pre-Release ..................................................31
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement .........................................32
SECTION 6.2 Termination ..................................................32
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts .................................................33
SECTION 7.2 No Third-Party Beneficiaries .................................33
SECTION 7.3 Severability .................................................34
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect .....34
SECTION 7.5 Notices ......................................................34
SECTION 7.6 Governing Law and Jurisdiction ...............................35
SECTION 7.7 Assignment ...................................................36
SECTION 7.8 Compliance with U.S. Securities Laws .........................36
SECTION 7.9 Titles .......................................................36
EXHIBIT A Form of Receipt .............................................A-1
EXHIBIT B Fees Schedule ...............................................B-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of June 15, 1998, by and among (i) TNT Post
Group N.V., a company incorporated 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).
WITNESSETH THAT:
WHEREAS, the Company has duly authorized and has outstanding ordinary
shares, nominal value one Guilder each (the "Shares") which are 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 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 annexed 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 listed on The New York Stock Exchange, Inc.;
and
WHEREAS, the Board of Directors 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:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1."Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
SECTION 1.2."American Depositary Share(s)" and "ADS(s)" American
Depositary Shares(s) shall mean with respect to any American Depositary Receipt,
the rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder. Each American Depositary
Share shall represent one Share, until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.11 with respect to which additional American
Depositary Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the Shares or Deposited Securities specified in
such Sections.
SECTION 1.3 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
SECTION 1.4 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR evidencing such ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADR(s) evidencing
the ADSs owned by such Beneficial Owner.
SECTION 1.5 "Business Day" shall mean any day on which both the banks in
Amsterdam, The Netherlands and the banks in New York are open for business.
SECTION 1.6 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United States.
SECTION 1.7 "Company" shall mean TNT Post Group N.V., a company
incorporated and existing under the laws of The Netherlands, and its successors.
SECTION 1.8 "Custodian" shall mean, as of the date hereof, either of ING
Bank N.V., having its statutory seat at Xxxxxxxxxxxxxx 0000, 0000 xx Xxxxxxxxx,
Xxx Xxxxxxxxxxx and having its principal office at Xxxxxxxxxxxx 000, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx or Citibank N.A., 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 firm or corporation which may be appointed by the Depositary pursuant
to the terms of Section 5.5 as a successor or an additional custodian or
custodians hereunder, as the context shall require. The term "Custodians" shall
mean all custodians, collectively.
SECTION 1.9 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, if
available.
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SECTION 1.10 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION 1.11 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.12 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities.
SECTION 1.13 "Dollars" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.14 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.15 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.16 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.17 "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.18 "Guilders" shall refer to the lawful currency of The
Netherlands.
SECTION 1.19 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADSs evidenced by the Receipt registered in its
name, such person shall be deemed to have all requisite authority to act on
behalf of the Beneficial Owners of such ADSs.
SECTION 1.20 "NECIGEF" shall mean The Netherlands Central Institute for
Giro Securities (Nederlands Centraal Instituut voor Giraal Effectenverkeer
B.V.), which provides the book-entry settlement system in The Netherlands, or
any successor entity thereto.
SECTION 1.21 "Netherlands" or "The Netherlands" means the State of The
Netherlands.
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SECTION 1.22 "Pre-Release" shall have the meaning set forth in Section
5.10 hereof.
SECTION 1.23 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.24 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) issued by the Depositary evidencing the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
SECTION 1.25 "Registrar" shall mean the Depositary or, with the approval
of the Company, any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed by the Depositary to
register ownership of Receipts and transfers of Receipts as herein provided, and
shall include any co-registrar appointed by the Depositary, with the approval of
the Company, for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary with the approval of the
Company. 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 Shares representing such Shares, which are either (i) acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) subject to other
restrictions on sale or deposit under the laws of the United States, The
Netherlands, or under a shareholder agreement or the Articles of Association of
the Company or under the regulations of an applicable securities exchange
unless, in each case, such Shares are being sold to persons other than an
Affiliate of the Company in a transaction (i) covered by an effective resale
registration statement or (ii) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held by
such persons, Restricted Securities.
SECTION 1.27 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.28 "Shares" shall mean the Company's ordinary shares, nominal
value one Guilder 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
4
occur any change in nominal value, split-up, consolidation, reclassification,
conversion or any other event described in Section 4.8, in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the extent permitted by
law, represent the successor securities resulting from such change in nominal
value, split-up, consolidation, exchange, conversion, reclassification or event.
SECTION 1.29 "United States" shall have the meaning assigned to it under
Regulation S under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Form. American Depositary Shares shall be evidenced by definitive
Receipts which shall be printed or lithographed or shall be in such other form
as may be agreed upon by the Company and the Depositary, and in any event shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed and dated by the Depositary by
the manual signature of a duly authorized officer of the Depositary; provided,
however, that the signature of such officer of the Depositary may be a facsimile
if such Receipts are countersigned by the manual signature of a duly authorized
employee of the Registrar and dated by such employee. 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, unless such
Receipt shall have been executed by the manual signature of a duly authorized
officer of the Depositary or the Registrar, and such execution of any Receipt by
manual signature shall be conclusive evidence, and the only evidence, that such
Receipt has been duly executed and delivered hereunder. The Registrar shall
maintain separate books in which is registered each Receipt evidencing American
Depositary Shares so executed and
5
delivered and the transfer of each American Depositary Receipt. Receipts bearing
the facsimile signature of a duly-authorized officer of the Depositary, who was
at the time of signature a proper officer of the Depositary, shall bind the
Depositary, notwithstanding the fact that such officer has ceased to hold such
office prior to the execution of such Receipt or the delivery of such Receipt.
The Receipts shall bear a CUSIP number that is different from any CUSIP number
that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company which are not Receipts issued hereunder.
(b) Legends. The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) may be required to comply
with any applicable law or regulations, or with the rules and regulations of any
securities exchange or market upon which American Depositary Shares may be
traded, listed or quoted or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or American Depositary Shares are subject by
reason of the date of issuance of the Deposited Securities, or (iv) may be
required by any book-entry system in which the ADRs are held.
(c) Title. Subject to the limitations contained herein and in the Receipt,
title to a Receipt (and to each American Depositary Share evidenced thereby),
when properly endorsed or accompanied by proper instruments of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however, that the
Depositary, notwithstanding any notice to the contrary, may deem and treat the
Holder of a Receipt (that is, the person in whose name a Receipt is registered
on the books of the Depositary) as the absolute owner thereof for all purposes,
and the Depositary shall have no obligation or be subject to any liability under
this Deposit Agreement to any holder of a Receipt or any beneficial owner unless
such holder is the registered Holder of such Receipt on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the American Depositary Shares into DTC. A single ADR in the form
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co."). As such,
the nominee for DTC will be the only "Holder" of the ADR evidencing all ADSs
held through DTC. Each Beneficial Owner of ADSs held through DTC must rely upon
the procedures of DTC and the DTC Participants to exercise or be entitled to any
rights attributable to such ADSs. The DTC Participants shall for all purposes be
deemed to have all requisite power and authority to act on behalf of the
Beneficial Owners of the ADSs held in the DTC Participants' respective accounts
in DTC and the Depositary shall for all purposes be authorized to rely upon any
instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC (or
its nominee), or (ii) DTC Participants (or their nominees).
6
SECTION 2.3 Deposit with Custodian. Subject to the terms and conditions of
this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Depositary or the Company
are closed, by Delivery of the Shares in bearer form with the related dividend
sheets to the Custodian in the securities account maintained by the Custodian
for such purpose at NECIGEF. (A) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement, (B) if the
Depositary so requires, a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (C) evidence satisfactory to the
Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in The Netherlands, and (D)
if the Depositary so requires, an agreement, assignment or instrument
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Shares are or have been recorded to the
Custodian of any distribution, or right to subscribe for additional Shares or to
receive other property in respect of any such deposited Shares or, in lieu
thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian. Any person depositing Shares hereunder shall be
deemed to represent that the Shares deposited are not Restricted Securities.
Without limiting any other provision of this Deposit Agreement, the Depositary
shall instruct the Custodian not to, and the Depositary shall not knowingly,
accept for deposit (a) any Restricted Securities nor (b) any fractional Shares
or fractional Deposited Securities nor (c) a number of Shares or Deposited
Securities which upon application of the ADS to Shares ratio would give rise to
fractional ADSs. No Share shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
The Netherlands and any necessary approval has been granted by any governmental
body in The Netherlands, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue Receipts against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
evidence that Shares have been electronically transferred or that irrevocable
instructions have been given to cause the transfer of such Shares to the account
of the Custodian, together with the other orders, instruments and evidence
herein specified, for the purpose of forwarding such Shares to the Custodian for
deposit hereunder.
SECTION 2.4 Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of Shares being deposited hereunder with the
Custodian (or other Deposited Securities
7
pursuant to Article IV hereof), together with the other documents above
specified, to promptly notify the Depositary of such deposit and the person or
persons to whom or upon whose written order an ADR or ADRs are deliverable with
respect to such deposit. Deposited Securities shall be held by the Depositary or
by a Custodian for the account and to the order of the Depositary or a nominee
in each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Articles of Association of the Company.
SECTION 2.5 Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that transfer of
such Shares has been made to the securities account of the Custodian maintained
at NECIGEF, (iii) that all required documents have been received, and (iv) the
person or persons to whom or upon whose written order American Depositary Shares
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification may be made by letter, cable, telex,
SWIFT message or, at the risk and expense of the person making the deposit, if
such person should so request by facsimile or other means of electronic
transmission. Upon receiving such notice from such Custodian, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall issue the
American Depositary Shares representing the Shares so deposited to or upon the
order of the person(s) named in the notice delivered to the Depositary and shall
execute and deliver a Receipt or Receipts, registered in the name or names
requested by such person(s) and evidencing the aggregate number of American
Depositary Shares to which such person(s) are entitled, but only upon payment to
the Depositary of the charges of the Depositary for making a deposit and the
issuance of American Depositary Shares and execution and delivery of such
Receipt or Receipts (as set forth in Section 5.9 and Exhibit B hereto) and all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Shares and the issuance of the Receipt or Receipts. The
Depositary shall only issue American Depositary Shares in whole numbers and
deliver American Depositary Receipts evidencing whole numbers of American
Depositary Shares. Nothing herein shall prohibit any Pre-Release Transaction
upon the terms set forth in this Deposit Agreement.
SECTION 2.6 Transfer of Receipts, Combination and Split-up of Receipts.
(a) Transfer. The Registrar, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard industry practice) and duly stamped as may be required
by the laws of the State of New York and of the United States of America.
Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9
and Exhibit B hereto, the Depositary shall execute (and, if the Depositary's
signature is by facsimile, the Registrar shall manually countersign) a new
Receipt or Receipts and deliver the
8
same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
(b) Combination & Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit B hereto, execute and, if the
Depositary's signature is by facsimile, the Registrar shall manually countersign
and deliver, a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
(c) Co-Transfer Agents. The Depositary may, with the approval of the
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the approval of the Company. Each co-transfer agent appointed under this
Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
SECTION 2.7 Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit B hereof) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Articles of Association, Section 7.8 hereof and
any other provisions of or governing the Deposited Securities and other
applicable laws, the Holder of such American Depositary Shares shall be entitled
to Delivery, to him or upon his order to a specified account in NECIGEF or, if
for any reason delivery by such means is not available by physical delivery at
the designated office of the Custodian of the Deposited Securities at the time
represented by the American Depositary Shares so surrendered. American
Depositary Shares may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such American Depositary Shares
(if held in registered form) or by book-entry delivery to a specified account in
DTC of such American Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) to a specified account in NECIGEF or, if, for
9
any reason delivery by such means is not available, by physical delivery at the
designated office of the Custodian, subject to Sections 2.8, 3.1, 3.2, 5.9, and
to the other terms and conditions of this Deposit Agreement, to the Articles of
Association of the Company, and the provisions of or governing the Deposited
Securities and applicable laws, now or hereafter in effect, to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as provided above, evidence of the electronic transfer (if available)
of the Deposited Securities represented by such American Depositary Shares. If
electronic transfer is unavailable for the Shares or any other securities,
property or cash to which the Holder is entitled, physical delivery may be made
by the delivery of the securities, property or cash for which electronic
delivery is unavailable, together with any certificate or other proper documents
of or relating to title of such securities, property, or cash. The Depositary
may make delivery to such person or persons at the Principal Office of the
Depositary of any dividends or cash distributions with respect to the Deposited
Securities represented by such American Depositary Shares, or of any proceeds of
sale of any dividends, distributions or rights, which may at the time be held by
the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. The Depositary may,
in its discretion, refuse to accept for surrender a number of American
Depositary Shares representing a number other than a whole number of Shares. In
the case of surrender of a Receipt evidencing a number of American Depositary
Shares representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or withdrawal
of any Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as
10
provided in Section 5.9 and Exhibit B hereof, (ii) the production of proof
reasonably satisfactory to it as to the identity and genuineness of any
signature or any other matter contemplated by Section 3.1 hereof and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or American Depositary Shares or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of this
Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares maybe suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Company, the
Depositary or a Registrar are closed or if any such action is deemed necessary
or advisable by the Depositary or the Company, in good faith, at any time or
from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which the Receipts
or Shares are listed, or under any provision of this Deposit Agreement or
provisions of, or governing, the Deposited Securities, or any meeting of
shareholders of the Company or for any other reason, subject, in all cases, to
Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or the Receipts to the contrary, the surrender of outstanding American
Depositary Shares and withdrawal of Deposited Securities may not be suspended or
refused, except as permitted in General Instruction I.A.(1) to Form F-6 (as such
instructions may be amended from time to time) in connection with (i) temporary
delays caused by closing transfer books of the Depositary or the Company or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
SECTION 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
SECTION 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
11
SECTION 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs,"
respectively). When Partial Entitlement Shares become Full Entitlement Shares,
the Depositary shall (a) cause the Custodian to transfer the Partial Entitlement
Shares into the account of the Full Entitlement Shares, (b) take such actions as
are necessary to remove the distinctions between (i) the Partial Entitlement
ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs on
the other and (c) give notice thereof to Holders of Partial Entitlement ADSs and
give Holders of Partial Entitlement ADRs the opportunity to exchange such
Partial Entitlement ADRs for Full Entitlement ADRs. Holders and Beneficial
Owners of Partial Entitlement ADSs shall only be entitled to the entitlement of
Partial Entitlement Shares. Holders and Beneficial Owners of Full Entitlement
ADSs shall be entitled only to the entitlements of Full Entitlement Shares. All
provisions and conditions of this Agreement shall apply to Partial Entitlement
ADRs and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.11. The Depositary is authorized to take any and
all other actions as may be necessary (including, without limitation, making the
necessary notations on Receipts) to give effect to the terms of this Section
2.11. The Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued are Partial Entitlement Shares and shall assist
the Depositary with the establishment of procedures enabling the identification
of Partial Entitlement Shares upon Delivery to the Custodian.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the appointed agent of the Company for the registration and
transfer of Shares) as the Depositary or the Custodian may reasonably deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations hereunder. The Depositary and
the Registrar, as applicable, may withhold the execution or delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or distribution of
12
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 2.8 (c)) the withdrawal of Deposited Securities
until payment in full of such tax, charge, penalty or interest is received.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do and (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
13
SECTION 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to Dutch law, the rules
and requirements of the Amsterdam Stock Exchange, and any other stock exchange
on which the Shares are, or will be, registered, traded or listed or the
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Holder or Beneficial Owner owns
American Depositary Shares (and Shares as the case may be) and regarding the
identity of any other person interested in such American Depositary Shares and
the nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward upon the request of the Company,
at the Company's expense, any such request from the Company to the Holders and
to forward to the Company any such responses to such requests received by the
Depositary.
SECTION 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares
represented by the American Depositary Shares owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company 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 or mandatory sale
or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the American Depositary Shares 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.
Holders and Beneficial Owners acknowledge that, under the Dutch Act on the
Disclosure of Holdings in Listed Companies, shareholders must promptly notify
the Company and The Netherlands Securities Investment Board if their holding
reaches, exceeds or falls below 5%, 10%, 25%, 50% or 66-2/3% of the capital
interest and/or voting rights in the Company and agree to comply with such
notification requirements.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the reasonable judgment of the Depositary (pursuant to
Section 4.8 hereof) be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (on the terms
described in Section 4.8) and will distribute promptly the amount thus received
(net of any (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld,
14
in each case, to the extent permitted by the provisions of this Agreement) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of American Depositary Shares held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, 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 Receipts 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 and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes, in each case, to the extent permitted by the provisions of this
Agreement) or (ii) if additional American Depositary Shares are not so
distributed, each American Depositary Share issued and outstanding after the ADS
Record Date shall, to the extent permissible by law, thenceforth also represent
rights and interests in the additional Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes, in each case, to the
extent permitted by the provisions of this Agreement). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company, in the fulfillment of its obligation
under Section 5.7 hereof, has furnished an opinion of U.S. counsel determining
that Shares must be registered under the Securities Act or other laws in order
to be distributed to Holders (and no such registration statement has been
declared effective), the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of such (a) taxes and (b) fees and charges of,
and expenses incurred by, the Depositary, in each case, to the extent permitted
by the provisions of this Agreement) to Holders entitled thereto upon the terms
described in Section 4.1. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of this Deposit
Agreement.
15
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received documentation within the
terms of Section 5.7 reasonably satisfactory to it. If the above conditions are
not satisfied, the Depositary shall, to the extent permitted by law, distribute
to the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (X) cash
upon the terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs. The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed dividend (X) in
cash, the dividend shall be distributed upon the terms described in Section 4.1,
or (Y) in ADSs, the dividend shall be distributed upon the terms described in
Section 4.2. Nothing herein shall obligate the Depositary to make available to
Holders a method to receive the elective dividend in Shares (rather than ADSs).
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
SECTION 4.4 Distribution of Rights.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares (or any rights of any other nature), the Company shall give
notice thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have requested that
such rights be made available to Holders, (ii) the Depositary shall have
received documentation within the terms of Section 5.7 reasonably satisfactory
to it, and (iii) the Depositary shall have determined that such distribution of
rights is reasonably practicable. In the event any of the conditions set forth
above are not satisfied, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) below. In the event all conditions set
forth above are satisfied, the Depositary shall establish an ADS Record Date
(upon the terms described in Section 4.9) and establish procedures to distribute
such rights (by means of warrants or otherwise) and to enable the Holders to
exercise the rights (upon payment of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes). The Company shall assist
the Depositary to
16
the extent necessary in establishing such procedures. Nothing herein shall
obligate the Depositary to make available to the Holders a method to exercise
such rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not request the Depositary to
make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive documentation within
the terms of Section 5.7 reasonably satisfactory to it or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public and private sale) as it may deem proper. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes, in each case, to the extent permitted
by the provisions of this Agreement) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution if the Company has provided or approved such materials;
provided, however, if such materials are received by the Depositary from a
person other than the Company or its agent and such materials are required by
law to be forwarded to Holders, the Depositary shall promptly provide the
Company with a copy of such materials for the Company's review and, unless
otherwise required by law, the Company's approval, prior to distribution by the
Depositary to the Holders.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders unless and until a registration statement under the
Securities Act covering such offering is in effect. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary reasonably deems necessary and practicable to
pay any such taxes or charges.
17
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to: be acquired upon the exercise of
such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution is reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld, in each case,
to the extent permitted by the provisions of this Agreement. The Depositary may
dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may reasonably deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
sell or cause such property to be sold in a public or private sale, at such
place or places and upon such terms as it may reasonably deem proper and shall
(i) cause the proceeds of such sale, if any, to be converted into Dollars and
(ii) distribute the proceeds of such conversion received by the Depositary (net
of applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes, in each case, to the extent permitted by the provisions of this
Agreement) to the Holders as of the ADS Record Date upon the terms of Section
4.1. If the Depositary is unable to sell such property, the Depositary may
dispose of such property in any way it deems reasonably practicable under the
circumstances. Any benefit received upon such disposition shall be for the
benefit of the Holders.
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SECTION 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any dividend sheets. The Company
shall promptly notify the Depositary of such distributions. The Depositary or
the Custodian shall promptly present such dividend sheets in connection with any
such distribution.
SECTION 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 60 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such notice and a satisfactory opinion of counsel,
the Depositary shall mail to each Holder a notice setting forth the intended
exercise by the Company of the redemption rights and any other particulars set
forth in the Company's notice to the Depositary. The Depositary shall instruct
the Custodian to present to the Company the Deposited Securities in respect of
which redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred
by, the Depositary, and (b) taxes, in each case, to the extent permitted by the
provisions of this Agreement), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2 hereof.
If less than all outstanding Deposited Securities are redeemed, the ADSs to be
retired will be selected by lot or on a pro rata basis, as may be determined by
the Depositary. The redemption price per ADS shall be the per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of Section 4.8
hereof and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes, in each case, to the extent permitted by the provisions
of this Agreement) multiplied by the number of Deposited Securities represented
by each ADS redeemed.
SECTION 4.8 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the reasonable judgment of the Depositary can at such time be
converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall convert or cause to be converted, by sale or in any other manner that it
may determine, such Foreign Currency into Dollars, and shall distribute such
Dollars (net of any applicable fees, any reasonable and customary expenses
incurred in such conversion and any expenses incurred on behalf of the Holders
in complying with currency exchange control or other governmental requirements)
in accordance with the terms of the applicable sections of this Deposit
Agreement. If the Depositary shall have distributed warrants or other
instruments that entitle the holders thereof to such Dollars, the Depositary
shall distribute such Dollars to the holders of such warrants and/or instruments
upon surrender thereof for cancellation, in either case without liability for
interest thereon. Such distribution may be made upon an averaged or other
19
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its reasonable
judgment that the conversion of any Foreign Currency and the transfer and the
distribution of proceeds of such conversion received by the Depositary is not
practical or lawful, or if any approval or license of any governmental authority
or agency thereof that is required for such conversion transfer and distribution
is denied or, in the reasonable opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
discretion, (i) make such conversion and distribution in Dollars to the Holders
for whom such conversion, transfer and distribution is lawful and practicable,
(ii) distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
SECTION 4.9 Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of or solicitation of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall, after consultation with the Company, fix a
record date (the "ADS Record Date") for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution, give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any). Subject to applicable law and the provisions of Section 4.1 through
4.8 and to the other terms and conditions of this Deposit Agreement, only the
Holders of Receipts at the close of business on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
SECTION 4.10 Voting of Deposited Securities.
(a) ADS Voting Instructions. As soon as practicable after receipt of
notice pursuant to Section 5.6 of any meeting of holders of Shares or other
Deposited Securities. The Depositary shall fix a record date for determining the
Holders entitled to give instructions for the exercise of voting rights as
provided in Section 4.9. The Depositary shall, if requested in writing by the
Company in a
20
timely manner (which request must be received by the Depositary at least 30 days
prior to such meeting) and provided no U.S. legal prohibitions exists, mail to
the Holders of record a notice which shall contain: (a) such information as is
contained in such notice of meeting, (b) a statement in English, in a form
provided by the Company, that the Holders of record at the close of business on
a specified record date will be entitled, subject to the terms of this Section,
any applicable provisions of Dutch law, the corporate charter and by-laws of the
Company and the provisions of or governing Deposited Securities (which
provisions, if any, shall have been summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights
pertaining to the number of Deposited Securities represented by their respective
Receipts and (c) a statement addressing the manner in which such instructions
may be .given, including an indication that instructions may be given (or may be
deemed to have been given in accordance with the last sentence of the next
paragraph if no instructions are received prior to the deadline set for such
purposes) to the Depositary to give a discretionary proxy to a person designated
by the Company. In the event the notice of meeting and request of the Company is
not received by the Depositary at least 30 days prior to the meeting, the
Depositary shall not have any obligation to notify the Holders and shall not
vote or cause to be voted the Deposited Securities. Upon the written request of
a Holder on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as is
practicable and permitted under applicable law and the provisions of the
corporate charter and by-laws of the Company and the provisions of or governing
the Deposited Securities, to vote or cause to be voted the number of Deposited
Securities represented by the American Depositary Shares evidenced by the
Holder's Receipt in accordance with the instructions set forth in such request.
(b) Discretionary Proxy to Management. The Depositary agrees not to, and
shall take reasonable steps to ensure that the Custodian and each of its
nominees, if any, do not, vote the Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt other than
in accordance with such instructions from the Holder or as provided below. The
Depositary may not itself exercise any voting discretion over any Shares. If the
Depositary does not receive instructions from a Holder on or before the date
established by the Depositary for such purpose, such Holder shall be deemed, and
the Depositary shall deem such Holder, to have instructed the Depositary to give
a discretionary proxy to a person designated by the Company to vote the
Deposited Securities; provided that (y) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
that (i) the Company does not wish such proxy to be given, (ii) substantial
opposition exists or (iii) the rights of holders of Shares will be adversely
affected and (x) the Depositary shall not have any obligation to give such
discretionary proxy to a person designated by the Company if (i) the Company
shall not have delivered to the Depositary the local counsel opinion and the
representation and indemnity letter described in the next paragraph and (ii) the
person designated to receive the discretionary proxy shall not have delivered to
the Depositary an undertaking stating that such person shall not exercise the
rights granted to such person pursuant to the terms of such proxy in
contravention of the provisions of sub paragraph (x) above.
Prior to requesting the delivery of a discretionary proxy upon the terms
set forth herein, the Company shall deliver to the Depositary (a) an opinion of
the Company's local counsel (of recognized standing in such country and
reasonably satisfactory to the Depositary) at the expense of the Company stating
that (i) such action does not violate any local laws and (ii) nothing in the
proxy
21
materials indicates any matter which under local law would be deemed to
adversely affect the rights of the holders of Shares and (b) a representation
and indemnity letter from the Company (executed by a senior officer of the
Company) (i) designating the person to whom any discretionary proxy should be
given, (ii) confirming that the Company wishes such discretionary proxy to be
given, (iii) certifying that the Company has not and shall not request the
discretionary proxy to be given as to any matter as to which substantial
opposition exists or which may adversely affect the rights of holders of Shares
or other Deposited Securities and (iv) agreeing to indemnify the Depositary and
the Custodian and their respective officers, directors and employees against,
and hold each of them harmless from, any liability or expense (including fees
and disbursements of counsel) which may arise out of or in connection with any
action of the Depositary or the Custodian in granting such discretionary proxy.
If, at the time of a vote, for any reason the standing instructions deemed
given herein would not be valid and binding on the Holders, or the Depositary is
unable to obtain the legal opinion or the representation and indemnity letter
above, the Depositary shall not vote the Shares or other Deposited Securities as
to which specific instructions have not been received.
(c) Legal Prohibitions. Notwithstanding anything else contained in this
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting of holders of Shares or other Deposited Securities if the
taking of such action violates U.S. laws. The Issuer agrees to take any and all
actions reasonably necessary to enable Holders and Beneficial Owners to exercise
the voting rights accruing to the Shares or other Deposited Securities and to
deliver to the Depositary an opinion of Issuer's U.S. counsel addressing any
actions requested to be taken if requested by the Depositary.
SECTION 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. The Depositary may, 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 reasonably satisfactory to the Depositary that such distributions are
not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, 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
22
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes, in each case, to the extent permitted by the provisions of this
Agreement) for the account of the Holders otherwise entitled to such securities
upon an averaged or other practicable basis without regard to any distinctions
among such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
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 Trade Center,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 4.13 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail to Holders copies of such reports when furnished by the Company pursuant to
Section 5.6.
SECTION 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
SECTION 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. Holders and Beneficial Owners
of American Depositary Shares may be required from time to time, and in a timely
manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may reasonably deem necessary or
proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless
23
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 promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non U.S. tax
paid against such Holder's or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the, registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
24
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, with the approval of
the Company, appoint a Registrar or one or more co-registrars for registration
of Receipts and transfers, combinations and split-ups, and to countersign such
Receipts in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary with the approval of the Company.
SECTION 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law 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
25
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).
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
26
be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due to it and on the written request of the Company
shall, (i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.08 and 5.09), (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Depositary, after consultation with the
Company, may from time to time appoint one or more custodians hereunder. The
Depositary has initially appointed each of ING Bank and 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 Shares for which the
Custodian acts as custodian and shall be responsible solely to it. If any
Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute custodian 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 such Deposited
Securities. Immediately upon any such change, the Depositary shall give notice
thereof in writing to all Holders of Receipts, each other Custodian and the
Company.
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
27
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; provided, however, that, at the option of the Company, the
annual report supplied under (a) or (b) above can be the annual report on Form
20-F or any comparable form then required for SEC filings of annual reports. The
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing of copies thereof to all Holders or make such notices,
reports and other communications available to all Holders on a basis similar to
that for holders of Shares or other Deposited Securities or on such other basis
as the Company may advise the Depositary or as may be required by any applicable
law, regulation or stock exchange requirement. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Articles of Association
along with the provisions of or governing the Shares and any other Deposited
Securities issued by the Company or any Affiliate of the Company in connection
with such Shares, and promptly upon any amendment thereto or change therein, the
Company shall deliver to the Depositary and the Custodian a copy of such
amendment thereto or change therein. The Depositary may rely upon such copy for
all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications and other documentation referred
to in the previous paragraph issued by the Company and delivered to the
Depositary for inspection by the Holders of the Receipts evidencing the American
Depositary Shares representing such Shares at the Depositary's Principal Office,
at the office of the Custodian and at any other designated transfer office.
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
28
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or not
application of such transaction to Holders and Beneficial Owners (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act and (b) an opinion of
Dutch counsel (which may be in-house counsel to the Company) stating that (1)
making the transaction available to Holders and Beneficial Owners does not
violate the law of The Netherlands and (2) all requisite regulatory consents and
approvals have been obtained in The Netherlands. If the filing of a registration
statement is required, the Depositary shall not have any obligation to proceed
with the transaction unless it shall have received evidence reasonably
satisfactory to it that such registration statement has been declared effective.
If, being advised by counsel, the Company determines that a transaction is
required to be registered under the Securities Act, the Company will either (i)
register such transaction to the extent necessary, (ii) alter the terms of the
transaction to avoid the registration requirements of the Securities Act or
(iii) direct the Depositary to take specific measures, in each case as
contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act.
The Company agrees with the Depositary that the Company will not at any
time (i) deposit any Shares or other Deposited Securities, either upon original
issuance or upon a sale of Shares or other Deposited Securities previously
issued and reacquired by the Company, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Depositary agrees to indemnify the
Company 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 acts performed or
omitted in connection with any offer, issuance, sale, resale, transfer, deposit
or withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be or any offering documents in respect
thereof or (b) out of acts performed or omitted, including, but not limited to,
any delivery by the Depositary on behalf of the Company of information regarding
the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, in either
such case (i) by the Depositary, the Custodian or any of
29
their respective directors, officers, employees, agents and Affiliates, except
to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates, except to the extent that
such liability or expense arises out of information (or omissions from
information) relating to the Depositary or to any Custodian or any of their
agents, as the case may be, furnished in a signed writing to the Company by the
Depositary expressly for use in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) or any other document relating to the ADRs evidencing the
ADSs.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.9 Fees and Charges of Depositary. The Holders and the Beneficial
Owners agree to pay to the Depositary the Depositary's fees identified as
payable by them respectively on the Fee Schedule attached hereto as Exhibit B.
In addition, Holders and Beneficial Owners and persons depositing Shares (other
than the Company) shall be required to pay (to the extent applicable) the
following charges: (i) taxes (including applicable interest and penalties) and
other governmental charges, (ii) such registration fees as may from time to time
be in effect for the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any nominees
upon the making of deposits and withdrawals of Deposited Securities, (iii) such
cable, telex and facsimile transmission and delivery expenses as are expressly
provided in the Deposit Agreement to be at the expense of the person depositing
Shares or Holders and Beneficial Owners of ADSs, (iv) the expenses and charges
incurred by the Depositary in the conversion of foreign currency, (v) such fees
and expenses as are incurred by the Depositary in connection with compliance
with exchange control regulations, and (vi) the fees and expenses incurred by
the Depositary in connection with the delivery of Deposited Securities.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
30
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 Receipts; provided, however, that the Depositary may (i) issue
Receipts prior to the receipt of Shares pursuant to Section 2.2 and (ii) deliver
Shares prior to the receipt and cancellation of Receipts pursuant to Section
2.5, including Receipts which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive Receipts in lieu of Shares under (i) above and
receive Shares in lieu of Receipts under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom Receipts or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or Receipts that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or Receipts in its records and to hold such Shares or
Receipts in trust for the Depositary until such Shares or Receipts are delivered
to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares or Receipts, and (z)
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of Receipts and Shares involved in such Pre-Release Transactions at any
one time to thirty percent (30%) of the Receipts outstanding (without giving
effect to Receipts outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of Receipts and Shares involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
31
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached
thereto and to be issued under the terms thereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4, the Depositary may
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of this Deposit
Agreement, the Holder will, upon surrender of such Receipt at the Principal
Office of the Depositary, upon the payment of the charges of the Depositary for
the surrender of Receipts referred to in Section2.7 and subject to the
conditions and restrictions therein set
32
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of this Deposit Agreement, the Registrar
thereafter shall discontinue the registration of transfers of Receipts, and the
Depositary shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.7, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
American Depositary Shares, except to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental, charges or
assessments). Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 hereof.
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
33
Affiliates may at any time have multiple banking relationships with the Company
and its Affiliates, (ii) the Depositary and its Affiliates may be engaged at any
time in transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (iii) nothing contained in this
Agreement shall (a) preclude the Depositary or any of its Affiliates from
engaging in such transactions or establishing or maintaining such relationships,
or (b) obligate the Depositary or any of its Affiliates to disclose such
transactions or relationships or to account for any profit made or payment
received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Neptunusstraat, 2132 JA Hoofddorp, The Netherlands, Attention:
Company Secretary, or to any other address which the Company may specify in
writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to 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 either of the Custodians shall be
deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Xxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx if to ING Bank
and to Europlaza, Xxxxxxxxxxxx 00X, 0000 X.X., Xxxxxxxxx X.X., Xxx Xxxxxxxxxxx
if to Citibank N.A., Amsterdam 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.
34
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. 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 TNT Skypak Inc. (the "Agent") now
at 200 Garden City, 0xx Xxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx, 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 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 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 mail 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.
35
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.
SECTION 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(l) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.9 Titles. All references in this Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement,"
"herein," "hereof," "hereby," "hereunder," and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
36
IN WITNESS WHEREOF, TNT POST GROUP 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.
TNT POST GROUP N.V.
By:
------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
37
IN WITNESS WHEREOF, TNT POST GROUP 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.
TNT POST GROUP N.V.
By: /s/ X. X. Xxxxxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxxxxx
Title:
CITIBANK, N.A.
By:
------------------------------
Name:
Title:
38
Number
CUSIP Number
American Depositary
Shares (Each American
Depositary Share
representing one
fully paid ordinary share each
one Guilder nominal value)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
TNT POST GROUP N.V.
(Incorporated 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, each of Nominal Value of one Guilder, including
evidence of rights to receive such ordinary shares (the "Shares") of TNT Post
Group N.V., a corporation incorporated under the laws of The Netherlands (the
"Company"). As of the date of the Deposit Agreement (hereinafter referred to),
each ADS represents one Share deposited under the Deposit Agreement with the
Custodian which at the date of execution of the Deposit Agreement is either of
ING Bank N.V. or Citibank, N.A., Amsterdam (the "Custodian"). The ratio of
Depositary Shares to shares of stock is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's Principal
Office is located at 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 June 15, 1998 (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 Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto 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 Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and the Custodian.
A-1
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Association
of the Company (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the American Depositary Shares into DTC. Each Beneficial Owner
of American Depositary Shares held through DTC must rely on the procedures of
DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name of a
nominee of DTC. So long as the American Depositary Shares are held through DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained by
(i) DTC (or its nominee), or (ii) DTC Participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADS evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (10) hereof
and in Section 5.09 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement
the Company's Articles of Association, Section 7.8 of the Deposit Agreement,
Article (24) of this Receipt and the provisions of or governing the Deposited
Securities and other applicable laws, the Holder of the American Depositary
Shares evidenced hereby is entitled to delivery, to him or upon his order, to a
specified account in NECIGEF or, if for any reason delivery by such means is not
available, by physical delivery at the designated office of the Custodian of the
Deposited Securities represented by the ADS so surrendered. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
registered form or by electronic delivery. ADS may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such ADS (if held in registered form) or by book-entry delivery to a specified
account in DTC of such ADS to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) to a specified account in NECIGEF or, if for any reason
delivery by such means is not available, by physical delivery at the designated
office of the Custodian, subject to the terms and conditions of the Deposit
Agreement, the Articles of Association of the Company, and the provisions of or
governing the Deposited Securities and applicable laws, now or hereafter in
effect, to or upon the written order of the person or persons designated in the
order delivered to the Depositary as provided above, evidence of the electronic
transfer (if available) of the Deposited Securities represented by such ADSs
together with any certificate or other proper documents of or relating to title
of such securities, property or cash.
A-2
If electronic transfer is unavailable for the Shares or any other securities,
property or cash to which the holder is entitled, physical delivery may be made
by the delivery of the securities, property, or cash for which electronic
delivery is unavailable. The Depositary may make delivery to such person or
persons at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing ADSs
representing less than one Share. The Depositary may, in its discretion, refuse
to accept for surrender a number of American Depositary Shares representing a
number of Shares other than a whole number of Shares. In the case of surrender
of a Receipt evidencing a number of ADS representing other than a whole number
of Shares, the Depositary shall cause ownership of the appropriate whole number
of Shares to be delivered in accordance with the terms hereof, and shall, at the
discretion of the Depositary, either (i) issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share, or (ii) sell or cause to be sold
the fractional Shares represented by the Receipt so surrendered and remit the
proceeds thereof (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the Receipt. At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or certificates
and other proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its book upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by the laws of the State of New York and of
the United States of America. Subject to the terms and conditions of the Deposit
Agreement including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and if
necessary cause the Registrar to countersign such Receipt(s)) and deliver same
to or upon the order of the person entitled to such Receipts evidencing the same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts and upon payment of the applicable fees
and charges of the Depositary subject to the terms and conditions of this
Deposit Agreement the Depositary shall execute and deliver, a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(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
A-3
(i) payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in the
Deposit Agreement and in this Receipt, (ii) the production of proof reasonably
satisfactory to it as to the identity and genuineness of any signature or any
other matters and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts and ADSs or to the withdrawal
of Deposited Securities and (B) such reasonable regulations of the Depositary or
the Company consistent with the Deposit Agreement and applicable law.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary or a Registrar are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Receipts or Share are listed, or under any
provision of the Deposit Agreement or provisions of, or governing, the Deposited
Securities or any meeting of shareholders of the Company or for any other
reason, subject in all cases to Article (24) hereof. Notwithstanding any
provision of the Deposit Agreement to the contrary, the surrender of outstanding
ADS evidenced by Receipts and withdrawal of Deposited Securities may not be
suspended except as required in General Instructions I.A.(l) to Form F-6 (as
such instructions may be amended from time to time) in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
(5)Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Netherlands law, the rules and requirements of the New York
Stock Exchange, Inc. the Amsterdam Stock Exchange and the Articles of
Association of the Company, which are made to provide information as to the
capacity in which such Holder or Beneficial Owner owns ADSs and regarding the
identity of any other persons then or previously interested in such ADSs and the
nature of such interest and various other matters whether or not they are
Holders and/or Beneficial Owner at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
A-4
(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, instruct the Depositary to take action with
respect to the ownership interest of any Holder or Beneficial Owner in excess of
the limits set forth in the preceding sentence, including but not limited to the
imposition of restrictions on the transfer of ADSs, the removal or limitation
..of voting rights or a mandatory sale or disposition on behalf of a Holder or
Beneficial Owner of the Shares represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association of
the Company.
(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 (and the certificates therefor) are validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares, have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim
and are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities and have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance, cancellation and transfer of depositary shares. If any
such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of
A-5
citizenship or residence, taxpayer status, payment of all applicable taxes or
other governmental charges, exchange control approval, legal or beneficial
ownership of ADSs and Deposited Securities, compliance with applicable laws and
the terms of the Deposit Agreement and the provisions of, or governing, the
Deposited Securities or other information as the Depositary or the Custodian may
reasonably deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement. Subject to Article (24) hereof and the terms of the Deposit
Agreement, the Depositary and the Registrar, as applicable, may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution of rights or of the proceeds thereof or
the delivery of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such representations and
warranties made or such information and documentation are provided. Holders and
Beneficial Owners acknowledge that, under the Dutch Act on the Disclosure of
Holdings in Listed Companies, shareholders must promptly notify the Company and
The Netherlands Securities Investment Board if their holding reaches, exceeds or
falls below 5%, 10%, 25%, 50% or 66-2/3% of the capital interest and/or voting
rights in the Company and agree to comply with such notification requirements.
(10) Xxxxxxx of Depositary. The Depositary shall charge fees for receiving
deposits and issuing Receipts, for delivering deposited Shares against surrender
of Receipts, for transfer of Receipts, for splits and combination of Receipts,
for distribution of dividends, for sales or exercise of rights or for other
services performed upon the terms set forth in the Deposit Agreement. The
Depositary and the Company reserve the right to modify, reduce or increase any
fees or charges for services performed. The Depositary shall charge any party to
whom Receipts are issued (including, without limitation, deposit or issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock for the Shares or Deposited Securities, or a distribution of
Receipts pursuant to Section 4.03 or 4.11 of the Deposit Agreement), or who
surrenders Receipts a fee of U.S.$5.00 or less per 100 American Depositary
Shares (or portion thereof) for the issuance or surrender, respectively, of a
Receipt. In addition the Depositary shall charge to the Holders a fee of
U.S.$2.00 or less per 100 American Depositary Shares (or portion thereof) for
any cash distribution made pursuant to the Deposit Agreement, including but not
limited to, Sections 4.02 through 4.05 thereof, and $5.00 or less per 100
American Depositary Shares (or portion thereof) in case of stock dividend, made
pursuant to the Deposit Agreement including, but not limited to Section 4.02
through 4.05 thereof. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. In addition, Holders, Beneficial
Owners, and persons depositing Shares (other than the Company) will be requested
to pay taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement. Any other charges and expenses of the Depositary under
the Deposit Agreement will be paid by the Company upon agreement between the
Depositary and the Company concerning the nature and amount of such charges and
expenses. All fees and charges may at any time and from time to time be changed
by agreement between the Company and the Depositary. The charges and expenses of
the Custodian, nominee or any other agent of the Depositary are for the sole
account of the Depositary. The provisions in respect of these charges may be
changed in the manner indicated in Article (22) of this Receipt.
A-6
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however, that the
Company and the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for all purposes, and neither the
Depositary nor the Company shall have the obligations or be subject to any
liability hereunder or under the Deposit Agreement to any holder of a Receipt
unless such holder is the Holder (that is, the person) registered on the books
of the Depositary.
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company 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 and the
Company's Articles of Association as amended, 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 Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Article 24
hereof.
A-7
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
------------------------------- -------------------------------
Authorized Officer 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 reasonable
judgment of the Depositary (upon the terms of the Deposit Agreement), be
converted on a practicable basis, into Dollars transferable to the United
States, promptly convert or cause to be converted such dividend, distribution or
proceeds into Dollars and will distribute promptly the amount thus received (net
of any applicable fees and charges of, and expenses incurred by, the Depositary
and taxes withheld, in each case, to the extent permitted by the provisions of
the Deposit Agreement) to the Holders entitled thereto as of the ADS Record Date
in proportion to the number of ADS representing such Deposited Securities held
as of the ADS Record Date. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent, 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
Receipts 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. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees upon receipt of confirmation of such
deposit, the Depositary shall, subject to and in accordance with the Deposit
Agreement, establish the ADS Record Date and either (i) distribute to the
Holders as of the ADS Record Date in proportion to the number of ADSs held as of
the ADS Record Date, additional ADSs, which represent in aggregate the number of
Shares received as such dividend, or free distribution, subject to the terms of
this Deposit Agreement (including, without limitation, the applicable fees and
charges of, and expenses incurred by, the Depositary and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement) or (ii) if
additional ADSs are not so distributed, -each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement.
A-9
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective, the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary reasonably deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and fees and charges of, and expenses incurred by, the Depositary, in
each case, to the extent permitted by the provisions of the Deposit Agreement)
to Holders entitled thereto upon the terms of the Deposit Agreement. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
Upon receipt of notice indicating that the Company wishes an elective
distribution to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs upon the
terms described in the Deposit Agreement.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares (or any rights of any other
nature) to be made available to Holders of ADSs, the Depositary upon
consultation with the Company, shall determine, whether it is lawful and
reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to any Holders only if the Company
shall have requested that such rights be made available to Holders, the
Depositary shall have received the documentation required by the Deposit
Agreement, and the Depositary shall have determined that such distribution of
rights is reasonably practicable. If such conditions are not satisfied, the
Depositary shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures to distribute such rights (by means of warrants or
otherwise) to enable the Holders to exercise the rights (upon payment of the
applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise such rights to subscribe
for Shares (rather than ADSs). If (i) the Company does not request the
Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails to
receive the documentation required by the Deposit Agreement or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public and private sale) as it may reasonably deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and expenses 'incurred by, the
Depositary and taxes, in each case, to the extent permitted by the provisions of
the Deposit Agreement) upon the terms hereof and in the Deposit Agreement. If
the Depositary is unable to make any rights available to Holders or to arrange
for the sale of the rights upon the terms described above, the Depositary shall
allow such rights to lapse. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such rights
A-10
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 to the contrary, if registration (under
the Securities Act or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to offer
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
unless and until a registration statement under the Securities Act covering such
offering is in effect. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of Receipts
evidencing ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary reasonably deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
The Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld, in each case,
to the extent permitted by the provisions of the Deposit Agreement. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may reasonably deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
A-11
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may reasonably deem proper and shall (i) cause
the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes, in each case, to the extent permitted by the provisions of the
Deposit Agreement) to the Holders upon the terms hereof. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances. Any benefit
received upon such disposition should be for the benefit of the Holders.
(15) Redemption. Upon receipt of notice from the Company that it intends
to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, the Depositary shall mail to
each Holder a notice setting forth the Company's intention to exercise the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. Upon receipt of confirmation that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, distribute the proceeds (net of applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes, in
each case, to the extent permitted by the provisions of the Deposit Agreement)
retire ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof upon
the terms of the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary.
(16) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any distribution, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, or any other matter, the Depositary shall, after consultation
with the Company, fix a record date ("ADS Record Date") for the determination of
the Holders of Receipts who shall be entitled to receive such distribution, to
give instructions for the exercise of voting rights at any such meeting, or to
give or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to the terms and
conditions of this Receipt and the Deposit Agreement, the Holders of Receipts at
the close of business on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities.
ADS Voting Instructions. As soon as practicable after receipt of
notice pursuant to Section 5.6 of the Deposit Agreement of any meeting of
holders of Shares or other Deposited Securities. The Depositary shall fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights as provided in Section 4.9 of the Deposit Agreement.
The Depositary shall, if requested in writing by the Company in a timely manner
(which request must be received by the Depositary at least 30 days prior to such
meeting) and provided no U.S. legal
A-12
prohibitions exists, mail to the Holders of record a notice which shall contain:
(a) such information as is contained in such notice of meeting, (b) a statement
in English, in a form provided by the Company, that the Holders of record at the
close of business on a specified record date will be entitled, subject to the
terms of this Article, any applicable provisions of Dutch law, the corporate
charter and by-laws of the Company and the provisions of or governing Deposited
Securities (which provisions, if any, shall have been summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights pertaining to the number of Deposited Securities represented by
their respective Receipts and (c) a statement addressing the manner in which
such instructions may be given, including an indication that instructions may be
given (or may be deemed to have been given in accordance with the last sentence
of the next paragraph if no instructions are received prior to the deadline set
for such purposes) to the Depositary to give a discretionary proxy to a person
designated by the Company. In the event the notice of meeting and request of the
Company is not received by the Depositary at least 30 days prior to the meeting,
the Depositary shall not have any obligation to notify the Holders and shall not
vote or cause to be voted the Deposited Securities. Upon the written request of
a Holder on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as is
practicable and permitted under applicable law and the provisions of the
corporate charter and by-laws of the Company and the provisions of or governing
the Deposited Securities, to vote or cause to be voted the number of Deposited
Securities represented by the American Depositary Shares evidenced by the
Holder's Receipt in accordance with the instructions set forth in such request.
Discretionary Proxy to Management. The Depositary agrees not to, and
shall take reasonable steps to ensure that the Custodian and each of its
nominees, if any, do not, vote the Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt other than
in accordance with such instructions from the Holder or as provided below. The
Depositary may not itself exercise any voting discretion over any Shares. If the
Depositary does not receive instructions from a Holder on or before the date
established by the Depositary for such purpose, such Holder shall be deemed, and
the Depositary shall deem such Holder, to have instructed the Depositary to give
a discretionary proxy to a person designated by the Company to vote the
Deposited Securities; provided that (y) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
that (i) the Company does not wish such proxy to be given, (ii) substantial
opposition exists or (iii) the rights of holders of Shares will be adversely
affected and (x) the Depositary shall not have any obligation to give such
discretionary proxy to a person designated by the Company if (i) the Company
shall not have delivered to the Depositary the local counsel opinion and the
representation and indemnity letter described in the next paragraph and (ii) the
person designated to receive the discretionary proxy shall not have delivered to
the Depositary an undertaking stating that such person shall not exercise the
rights granted to such person pursuant to the terms of such proxy in
contravention of the provisions of sub paragraph (x) above.
Prior to requesting the delivery of a discretionary proxy upon the
terms set forth herein, the Company shall deliver to the Depositary (a) an
opinion of the Company's local counsel (of recognized standing in such country
and reasonably satisfactory to the Depositary) at the expense of the Company
stating that (i) such action does not violate any local laws and (ii) nothing in
the proxy materials indicates any matter which under local law would be deemed
to adversely affect the rights of the holders of Shares, and (b) a
representation and indemnity letter from the Company
A-13
(executed by a senior officer of the Company) (i) designating the person to whom
any discretionary proxy should be given, (ii) confirming that the Company wishes
such discretionary proxy to be given, (iii) certifying that the Company has not
and shall not request the discretionary proxy to be given as to any matter as to
which substantial opposition exists or which may adversely affect the rights of
holders of Shares or other Deposited Securities and (iv) agreeing to indemnify
the Depositary and the Custodian and their respective officers, directors and
employees against, and hold each of them harmless from, any liability or expense
(including fees and disbursements of counsel) which may arise out of or in
connection with any action of the Depositary or the Custodian in granting such
discretionary proxy.
If, at the time of a vote, for any reason the standing instructions
deemed given herein would not be valid and binding on the Holders, or the
Depositary is unable to obtain the legal opinion or the representation and
indemnity letter above, the Depositary shall not vote the Shares or other
Deposited Securities as to which specific instructions have not been received.
Legal Prohibitions. Notwithstanding anything else contained in the
Deposit Agreement, the Depositary shall not have any obligation to take any
action with respect to any meeting of holders of Shares or other Deposited
Securities if the taking of such action violates U.S. laws. The Issuer agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Shares or other Deposited
Securities and to deliver to the Depositary an opinion of Issuer's U.S. counsel
addressing any actions requested to be taken if requested by the Depositary.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities.
Alternatively, the Depositary may, with the Company's approval, and shall, if
the Company shall so request, subject to the terms of the Deposit Agreement and
receipt of reasonably satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this Receipt, specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, 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 fees and
charges of, and expenses incurred by, the Depositary and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement) for the account
of the Holders otherwise entitled to such securities and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to the Deposit Agreement. The Depositary shall not be
responsible for (i) any failure to determine
A-14
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, the Company
or their respective controlling persons or agents shall be prevented or
forbidden from, or subjected to any civil or criminal penalty or restraint on
account of, or delayed in, doing or performing any act or thing required by the
terms of the Deposit Agreement and this Receipt, by reason of any provision of
any present or future law 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 the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document .believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without 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
the 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
A-15
or Deposited Securities, for the credit-worthiness of any third party, for
allowing any rights to lapse upon the terms of the Deposit Agreement or for the
failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due to it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(22) Amendment, Supplement. This Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges of the Depositary in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs or Shares to be traded solely
in electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such ADS, to consent and agree
to such amendment or supplement and to be bound by the Deposit Agreement as
amended or supplemented
A-16
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 notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' ADSs at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of ADSs referred to in Article (2)
hereof and in the Deposit Agreement and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the
A-17
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 Receipts. The Depositary may issue
Receipts against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; provided, however, that the Depositary may (i) issue Receipts prior to
the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which Shares may not have been received (each such
transaction a "Pre-Release Transaction"). The Depositary may receive Receipts in
lieu of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. The Depositary may also set limits with respect to the number of
Receipts and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
A-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.
SIGNATURE GUARANTEED
________________________________
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 and Beneficial Owners 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 Up to $5.00 per 100 ADSs (or Party for whom deposits are
deposit of Shares fraction thereof) issued made or party receiving ADSs
(excluding issuances
contemplated by paragraphs (3)(b)
and (5) below).
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(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Party surrendering ADSs or
Securities, property and cash fraction thereof) surrendered. making withdrawal.
against surrender of ADSs.
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(3) Distribution of (a) cash No fee, so long as prohibited Party to whom distribution is
dividend or (b) ADSs by the exchange upon which made.
pursuant to stock dividends (or the ADSs are listed.
other free distribution of stock).
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(4) Distribution of cash Up to $2.00 per 100 ADSs Party to whom distribution is
proceeds (i.e., upon sale held. made.
of rights and other entitlements).
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(5) Distribution of ADSs Up to $5.00 per 100 ADSs Party to whom distribution is
pursuant to exercise of rights. issued. made.
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II. Charges. Holders and Beneficial Owners shall be responsible for the
following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
B-1
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
B-2
