Exhibit 1
[EXECUTION COPY]
================================================================================
HUSQVARNA AB (publ)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Dated as of June _____, 2006
================================================================================
ARTICLE 1. DEFINITIONS................................................ 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES........................... 1
SECTION 1.02 BENEFICIAL OWNER..................................... 2
SECTION 1.03 COMMISSION........................................... 2
SECTION 1.04 COMPANY.............................................. 2
SECTION 1.05 CUSTODIAN............................................ 2
SECTION 1.06 DELIVER; DELIVERY.................................... 2
SECTION 1.07 DEPOSIT AGREEMENT.................................... 2
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE................... 2
SECTION 1.09 DEPOSITED SECURITIES................................. 3
SECTION 1.10 DOLLARS; SEK......................................... 3
SECTION 1.11 FOREIGN REGISTRAR.................................... 3
SECTION 1.12 OWNER................................................ 3
SECTION 1.13 RECEIPTS............................................. 3
SECTION 1.14 REGISTRAR............................................ 3
SECTION 1.15 RESTRICTED SECURITIES................................ 3
SECTION 1.16 SECURITIES ACT OF 1933............................... 4
SECTION 1.17 SHARES............................................... 4
SECTION 1.18 SWEDEN............................................... 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS .............. 4
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS................. 4
SECTION 2.02 DEPOSIT OF SHARES.................................... 5
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS................... 6
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP
OF RECEIPTS....................... ................ 7
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES....... 7
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.......................... 8
SECTION 2.07 LOST RECEIPTS, ETC................................... 9
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS........................................... 9
SECTION 2.09 PRE-RELEASE OF RECEIPTS.............................. 9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS...................... .................. 10
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.... 10
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES..... 11
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES...................... 11
ARTICLE 4. THE DEPOSITED SECURITIES................................... 11
SECTION 4.01 CASH DISTRIBUTIONS................................... 11
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS...... 12
SECTION 4.03 DISTRIBUTIONS IN SHARES.............................. 12
SECTION 4.04 RIGHTS............................................... 13
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY....................... 15
SECTION 4.06 FIXING OF RECORD DATE................................ 16
SECTION 4.07 VOTING OF DEPOSITED SECURITIES....................... 16
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES............... 17
SECTION 4.09 REPORTS.............................................. 18
SECTION 4.10 LISTS OF OWNERS...................................... 18
SECTION 4.11 WITHHOLDING.......................................... 18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY............. 19
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY.................................. 19
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY.......................... 19
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE COMPANY.................................... 20
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY............ 21
SECTION 5.05 THE CUSTODIANS....................................... 21
SECTION 5.06 NOTICES AND REPORTS.................................. 22
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC....... 22
SECTION 5.08 INDEMNIFICATION...................................... 23
SECTION 5.09 CHARGES OF DEPOSITARY................................ 24
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS.................... 25
SECTION 5.11 EXCLUSIVITY.......................................... 25
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS................. 25
ARTICLE 6. AMENDMENT AND TERMINATION.................................. 25
SECTION 6.01 AMENDMENT............................................ 25
SECTION 6.02 TERMINATION.......................................... 26
ARTICLE 7. MISCELLANEOUS.............................................. 27
SECTION 7.01 COUNTERPARTS......................................... 27
SECTION 7.02 NO THIRD PARTY BENEFICIARIES......................... 27
SECTION 7.03 SEVERABILITY......................................... 27
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES;
BINDING EFFECT..................................... 27
SECTION 7.05 NOTICES.............................................. 27
SECTION 7.06 ASSIGNMENT........................................... 28
SECTION 7.07 SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS....................... 28
SECTION 7.08 GOVERNING LAW........................................ 29
3
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June ____, 2006 among HUSQVARNA AB
(publ), incorporated under the laws of the Kingdom of Sweden (herein called the
Company), THE BANK OF NEW YORK, a New York banking corporation (herein called
the Depositary), and all Owners and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder and the American Depositary Shares
evidenced thereby.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and between the parties hereto as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified on Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
1
SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time
to time any beneficial interest in the American Depositary Shares evidenced by
any Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.04 Company.
The term "Company" shall mean Husqvarna AB (publ), incorporated
under the laws of Sweden, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the Stockholm, Sweden, offices of
each of SEB Merchant Banking and Svenska Handelsbanken, each as agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereafter be appointed by the Depositary pursuant to the
terms of Section 5.05, as substitute or additional custodian or custodians
hereunder, as the context shall require and shall also mean all of them
collectively.
SECTION 1.06 Deliver; delivery.
The terms "deliver" and "delivery," when used with respect to Shares
or other Deposited Securities shall may refer to an entry or entries or an
electronic transfer or transfers in the records of a depositary institution
authorized under Swedish law to effect transfers of such securities (which may
but need not be the VPC (as hereinafter defined)), and not to the physical
delivery of certificates evidencing such securities, as the context allows.
SECTION 1.07 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended or restated from time to time in accordance with the provisions
hereof.
SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 101 Barclay
Street, New York, New York 10286.
2
SECTION 1.09 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.05.
SECTION 1.10 Dollars; SEK.
The term "Dollars" shall mean United States dollars; the term "SEK"
shall mean Swedish Kronor.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean VPC AB Aktiebolag, a company
incorporated under the laws of Sweden ("VPC"), which carries out the duties of
registrar for nearly all Swedish companies listed on the Stockholm Stock
Exchange, including the Company, or any entity that may from time to time carry
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of the Shares. VPC operates under the supervision of the Swedish
Financial Supervisory authority and is authorized as a securities depository and
clearing-house.
SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
SECTION 1.14 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (other than pursuant to transactions in accordance
with Regulation S of the Securities Act of 1933) (as defined in Rule 144 to the
Securities Act of 1933), or which
3
are held by an officer, director (or persons performing similar functions) or
other affiliate of the Company, or which would require registration under the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States or Sweden, or under a shareholder agreement or the
Articles of Association of the Company.
SECTION 1.16 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.17 Shares.
The term "Shares" shall mean Class B Shares of the Company,
heretofore validly issued and outstanding, fully-paid and nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares or hereafter
validly issued and outstanding and fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares or interim certificates
representing such Shares.
SECTION 1.18 Sweden.
The term "Sweden" shall mean the Kingdom of Sweden.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts 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. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall maintain books on which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered.
Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of such
Receipts.
4
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be reasonably required by the
Depositary or required to comply with any applicable law or regulations
thereunder or with the rules and regulations of any securities exchange upon
which American Depositary Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when such Receipt is properly endorsed or accompanied by proper
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the Owner thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the Depositary that
any necessary approval has been granted by any governmental body in Sweden which
is then performing the function of the regulation of currency exchange. If
required by the Depositary, Shares presented for deposit at any time, whether or
not the transfer books of the Company or the Foreign Registrar, if applicable,
are closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
5
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
The nominee of the Depositary may be a Custodian or another Swedish
entity entitled to act as a nominee under relevant Swedish laws and regulations.
Certificates for Shares, if any, may be kept in a joint deposit account by such
nominee, and all Shares deposited with the nominee may be represented by one
single certificate.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section
2.02 hereunder (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company
that any Deposited Securities have been recorded upon the books of the Company
or the Foreign Registrar, if applicable, in the name of the Depositary or its
nominee or such Custodian or its nominee), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person or
persons entitled thereto, a Receipt or Receipts, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fees of
the Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
6
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt. Delivery of such Deposited Securities may be made by
the delivery of (a) certificates in the name of such Owner or as ordered by him
or certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of
7
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the Stockholm, Sweden,
office of such Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, except that the
Depositary may make delivery to such person or persons at the Corporate Trust
Office of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary or the Custodian may require payment
from the depositor of Shares or the presentor 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 as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.06.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary or the appointed agent of the
Company for transfer and registration of such Shares are closed, or if any such
action is deemed necessary or advisable by the
8
Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding anything to the
contrary in this Deposit Agreement or the Receipts, the surrender of outstanding
Receipts and withdrawal of Deposited Securities may not be suspended, subject
only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, 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 this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933
prior to public offer and sale in the United States unless a registration
statement is in effect as to such Shares.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
The Depositary may issue Receipts against rights to receive Shares
from the Company (or any agent of the Company recording Share ownership). No
such issue of Receipts will be deemed a "Pre-Release" that is subject to the
restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Deposited
Securities upon the receipt and cancellation of Receipts which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such Receipt has been
9
Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipt to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 deem appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to delivery Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or other information as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or 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
10
executed or such representations and warranties made. The Depositary shall, upon
request, provide the Company, in a timely manner, with copies of any such proofs
of citizenship or residence, or exchange control approval which it receives.
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner or
Beneficial Owner of such Receipt to the Depositary. The Depositary may refuse to
effect any transfer of such Receipt or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced by such Receipt until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner or Beneficial Owner thereof any part or all of
the Deposited Securities represented by the American Depositary Shares evidenced
by such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
and the Owner or Beneficial Owner of such Receipt shall remain liable for any
deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares are validly issued,
fully paid, nonassessable and free of any preemptive rights of the holders of
outstanding Shares and that the person making such deposit is duly authorized so
to do. Every such person shall also be deemed to represent that such Shares and
the Receipts evidencing American Depositary Shares representing such Shares are
not Restricted Securities. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Custodian or the Depositary shall receive any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
shall, subject to the provisions of Section 4.05, convert or cause to be
converted such dividend or distribution into Dollars and shall distribute such
amount (net of the fees and expenses of the Depositary as provided in Section
5.09) to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them,
respectively; provided, however, that in the event that the Company or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only
11
such amount, however, as can be distributed without attributing to any Owner a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Owners entitled thereto. The Company or
its agent or the Depositary or its agent, as appropriate, will remit to the
appropriate governmental agency in Sweden all amounts withheld and owing to such
agency. The Depositary will as promptly as practicable forward to the Company or
its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by the Custodian to be distributed to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary deems such distribution not to be feasible, the
Depositary, upon consultation with the Company to the extent practicable, may
adopt such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.09) shall be distributed by the Depositary to the Owners
entitled thereto as in the case of a distribution received in cash pursuant to
Section 4.01 hereof.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, upon
consultation with the Company, and shall if the Company shall so request,
distribute as promptly as practicable to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them, respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including
12
the withholding of any tax or other governmental charge as provided in Section
4.11 and the payment of the fees of the Depositary as provided in Section 5.09.
The Depositary may withhold any such distribution if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds, if any, available in Dollars
to such Owners; provided, that the Depositary will, if requested by the Company,
take action as follows:
(i) if at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such
rights available to all or certain Owners by means of warrants or
otherwise, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate or employ
such other method as it may deem feasible in order to facilitate the
exercise, sale or transfer of rights by such Owners; or
(ii) if, at the time of the offering of any rights the Depositary
determines in its discretion that it is not lawful and feasible to make
such rights available to all or certain Owners by means of warrants or
otherwise, or if the rights represented by such warrants or other
instruments are not exercised and appear to be about to lapse, the
Depositary shall use reasonable efforts to sell the rights, warrants or
other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such
sales (net of the fees of the Depositary as provided in Section 5.09 and
all taxes and governmental charges payable in connection with such rights
and subject to the terms and conditions of this Deposit Agreement) for the
account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without
regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of
13
any Receipt or otherwise, and distribute such proceeds, all in the manner
and subject to the conditions described in Section 4.01; provided,
however, that if by the terms of such rights offering or by reason of
applicable law, the Depositary may neither make such rights available to
such Owners nor dispose of such rights and make the net proceeds available
to such Owners, then the Depositary shall allow the rights to lapse
(without incurring liability to any person as a consequence thereof).
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction from such an Owner pursuant to such warrants or
other instruments to the Depositary to exercise such rights, upon payment by
such Owner to the Depositary for the account of such Owner of an amount equal to
the purchase price of the Shares to be received upon the exercise of the rights,
and upon payment of the fees of the Depositary and any other charges as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase the Shares, and the Company shall
cause the Shares so purchased to be delivered to the Depositary on behalf of
such Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement,
and shall, pursuant to Section 2.03 of this Deposit Agreement, execute and
deliver Receipts to such Owner; provided, however, that in the case of a
distribution pursuant to the second paragraph of this section, such deposit
shall be made, and depositary shares shall be delivered, under other depositary
arrangements to be entered into between the Company and the Depositary which
provide for issuance of depositary receipts subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under applicable
United States laws.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create, or be construed to create, any
obligation on the part of the Company to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective. If an Owner of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon
14
which the Depositary may rely that such distribution to such Owner is exempt
from such registration.
Subject to Section 5.03 of this Deposit Agreement, the Depositary
shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in
particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall as promptly as practicable convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars shall as promptly as practicable
be distributed to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.09.
If such conversion with regard to a particular Owner or distribution
can be effected only with the approval or license of any government or agency
thereof, the Depositary shall file such application for approval or license, if
any, as it may deem advisable.
If at any time the Depositary shall determine that in its reasonable
judgment any foreign currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency
15
received by the Depositary to, or hold such balance uninvested and without
liability for interest thereon for the respective accounts of, the Owners
entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever 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 holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient,
the Depositary shall fix a record date (which shall, to the extent practicable,
be the same date as the corresponding date fixed by the Company) (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii)
responsible for any fee assessed by the Depositary pursuant to this Deposit
Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Owners on such record date shall be entitled, as the case may be,
to receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively.
SECTION 4.07 Voting of Deposited Securities.
As of the date of the Deposit Agreement, the Company does not intend
to request distribution of voting materials for exercise of voting rights by the
holders of American Depositary Shares. If the Company in its discretion shall
decide to extend voting rights to Owners and Beneficial Owners, upon receipt of
notice of any meeting or solicitation of consents or proxies of holders of
Shares or other Deposited Securities, if requested in writing by the Company,
the Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners as of the close of business
on a specified record date will be entitled, subject to any applicable provision
of Swedish law and of the Articles of Association of the Company and the
provisions of the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part, it being understood that the Company shall prepare
such summary), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares, (c) a statement as
to the manner in which such instructions may be given and (d) a statement that
by instructing the Depositary as to the exercise of voting rights with respect
to the Deposited Securities such Beneficial Owner will be deemed (i) to
authorize the
16
Depositary to cause the number of Deposited Securities evidenced by the number
of American Depositary Shares held by such Beneficial Owner to be registered in
the name of such Beneficial Owner in a temporary voting account five (5) days
prior to the date on which such vote is to occur and immediately after such vote
to register such Deposited Securities in the name of the Depositary or the
Custodian or their respective nominees, and (ii) to authorize the Company and
the Depositary to make such other arrangements as they may deem necessary or
advisable consistent with Swedish law, the Articles of Association of the
Company and the terms of the Deposited Securities to permit the Depositary to
carry out such instructions, and (iii) to agree not to transfer, surrender or
otherwise dispose of such Beneficial Owner's American Depositary Shares
representing such Deposited Securities until after the date such vote is to
occur. The parties acknowledge that under Swedish law and the Company's Articles
of Association as in effect on the date hereof, an Owner will only be entitled
to exercise the voting rights, if any, pertaining to the Shares or other
Deposited Securities (but not any fraction thereof) represented by the ADSs if
such Owner is entered in the register of sharesholders maintained by VPC not
later than the fifth day prior to such meeting, and gives notice of his
intention to attend the meeting, in person or by proxy, not later than 4:00 p.m.
on a date specified in the notice convening the meeting. Upon the written
request of a Beneficial Owner on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request and will notify the Company in advance of its intention to so
vote, or cause to be voted, as required to preserve such voting rights. Neither
the Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting, vote, attempt to exercise the right to vote, or in any
way make use of, for purposes of establishing a quorum or otherwise, Deposited
Securities except pursuant to and in accordance with such written instructions
from Owners. Deposited Securities for which no specific voting instructions are
received by the Depositary from the applicable Owner shall not be voted.
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in ratio value, split-up, consolidation, cancellation 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 in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the right to receive new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, with the Company's approval, and
shall if the Company shall so request, execute and deliver additional Receipts
as in
17
the case of a dividend in Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
Upon the occurrence of any such change, conversion or exchange
covered by this Section in respect of the Deposited Securities, the Depositary
shall, as promptly as practicable, give notice thereof, at the Company's
expense, in writing to all Owners of Receipts.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary or the Custodian or the nominee of either 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, upon written
request, send to the Owners copies of such reports and communications when
furnished by the Company pursuant to Section 5.06. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company unless otherwise agreed between the Company and the
Depositary, furnish to it a list, as of a recent date, of the names, addresses
and holdings of American Depositary Shares by all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
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 charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them,
respectively.
18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder, or at the reasonable request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the reasonable request of the
Company.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
None of the Depositary, the Company or any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, (i) if by reason of any provision of
any present or future law or regulation of the United States, Sweden or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Articles of Association
of the Company, or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the Depositary or the Company shall be prevented, delayed or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of this Deposit Agreement it is
provided shall be done or performed, (ii) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) for the inability of any
Owner or
19
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 Owners or
Beneficial Owners, or (v) for any special, consequential or punitive damages for
any breach of the terms of this Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that it agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
20
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith and in accordance with the terms of
this Deposit Agreement.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
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 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it, and the
Depositary shall be responsible for the compliance by the Custodian with the
applicable provisions of this Deposit Agreement. If the Depositary is notified
of the resignation of a Custodian and, upon the effectiveness of such
resignation there would be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian
21
or custodians, each of which shall thereafter be a Custodian hereunder. The
Depositary in its discretion may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal to the Depositary and the Custodian of
such notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing by
the Company, the Depositary will arrange for the timely mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Company, which counsel shall be reasonably
satisfactory to the Depositary, stating whether or not the Distribution requires
a Registration Statement under the Securities Act
22
of 1933 to be in effect prior to making such Distribution available to Owners
entitled thereto. If in the opinion of such counsel a Registration Statement is
required, such counsel shall furnish to the Depositary a written opinion as to
whether or not there is a Registration Statement in effect which will cover such
Distribution.
The Company agrees with the Depositary that neither the Company nor
any company or other entity controlled by, controlling or under common control
with the Company will at any time deposit any Shares, either originally issued
or previously issued and reacquired by the Company or any such affiliate, unless
a Registration Statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted in connection with this Deposit Agreement or the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The indemnities contained in this paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.09) of a Receipt or Receipts in accordance with Section
2.09 and which would not otherwise have arisen had such Receipt or Receipts not
been the subject of a Pre-Release pursuant to Section 2.09; provided, however,
that the indemnities provided in the preceding paragraph shall apply to any
liability or expense (i) to the extent that such liability or expense would have
arisen had a Receipt or Receipts not been the subject of a Pre-Release, or (ii)
which may arise out of any misstatement or alleged misstatement or omission or
alleged omission in any registration statement, proxy statement, prospectus (or
placement memorandum), or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or any Custodian (other than the Company), as
applicable, furnished in writing and not materially changed or altered by the
Company expressly for use in any of the foregoing documents, or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may
23
arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due to their
negligence or bad faith.
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 right otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which shall be reasonable in the circumstances.
No indemnified person shall compromise or settle any action or claim without the
consent of the indemnifying person, which consent shall not be unreasonably
withheld or delayed.
The obligations of this Section 5.08 shall survive the termination
of this Deposit Agreement and the succession or substitution of any person
indemnified hereby.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American
24
Depositary Shares referred to above which would have been charged as a result of
the deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Owners, and (8) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.06 and shall be
payable at the sole discretion of the Depositary by billing such Owners for such
charge or by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be retained for a longer period or turned over
to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance
of depositary receipts so long as The Bank of New York is acting as Depositary
hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a
list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners or Beneficial
Owners of Receipts in any respect which they may deem necessary or desirable.
Any amendment which shall
25
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty (30) days after notice of
such amendment shall have been given to the Owners of outstanding Receipts.
Every Owner at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.02 Termination.
The Depositary shall at any time at the direction of the Company
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least thirty (30) days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to the
Company and the Owners of all Receipts then outstanding if at any time ninety
(90) days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04. On and after the date of termination, the Owner of a Receipt will,
upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.05, and (c) 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 the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, the fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, 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, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been
26
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of this Deposit Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or Beneficial Owner of a Receipt during
business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03 Severability.
In case 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 7.04 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof or any beneficial
interest therein.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to the
Company at Husqvarna AB (publ), Box 30224, SE 104 25, Stockholm, Sweden, for the
attention of: General Counsel,
27
or any other place to which the Company may have transferred its principal
office, upon notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office, upon notice to the
Company.
Any and all notices to be given to any Owner 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 Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail 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. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Assignment.
This Deposit Agreement may not be assigned by either the Company or
the Depositary.
SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Company hereby (i) irrevocably designates and appoints Husqvarna
Outdoor Products, Inc. 1030 Stevens Creek Road, Augusta, GA 30407, telephone +
(706) 826 6900, facsimile + (706) 823 8968, as the Company's authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to the Shares or Deposited Securities, the American Depositary Shares,
the Receipts or this Agreement, (ii) consents and submits to the jurisdiction of
any state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Company further agrees to
take any and all action, including the filing of any and all such documents and
28
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or this Agreement remains in force. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
SECTION 7.08 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of Sweden.
29
IN WITNESS WHEREOF, Husqvarna AB (publ) and THE BANK OF NEW YORK
have duly executed this agreement as of the day and year first set forth above
and all Owners and Beneficial Owners shall become parties hereto upon acceptance
by them of Receipts issued in accordance with the terms hereof.
HUSQVARNA AB (publ)
By:___________________________
Name: Lars Worsoe-Petersen
Title: Head of Human Resources
THE BANK OF NEW YORK,
as Depositary
By:___________________________
Name: David S. Stueber
Title: Managing Director
EXHIBIT A
[Form of Face of Receipt]
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents two deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR CLASS B SHARES OF
HUSQVARNA AB (publ)
(INCORPORATED UNDER THE LAWS OF THE KINGDOM OF SWEDEN)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ______________________________, or registered
assigns IS THE OWNER OF _____________________________________
AMERICAN DEPOSITARY SHARES
representing deposited Class B Shares (herein called "Shares") of Husqvarna AB
(publ), incorporated under the laws of Sweden (herein called the "Company"). At
the date hereof, each American Depositary Share represents two Shares deposited
or subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the Stockholm, Sweden offices of each of SEB Merchant Banking and
Svenska Handelsbanken (herein called the "Custodian"). The Depositary's
Corporate Trust Office is located at a different address than its principal
executive office. Its Corporate Trust Office is located at 101 Barclay Street,
New York, N.Y. 10286, and its principal executive office is located at One Wall
Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of June ____, 2006 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
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 become bound by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners and Beneficial Owners of the 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 Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such Owner is
then entitled in respect of this Receipt. Such delivery will be made without
unreasonable delay at the option of the Owner hereof, either at the office of
the Custodian or at the Corporate Trust Office of the Depositary, provided that
the forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Corporate Trust Office of the Depositary shall be at the risk
and expense of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose; provided, that the Depositary may close the
2
transfer books, at any time or from time to time when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement or at
the request of the Company. This Receipt may be split into other such Receipts,
or may be combined with other such Receipts into one Receipt, evidencing the
same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require payment from the depositor of the Shares or the presentor of this
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 as provided in this Receipt,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any
regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement or this Receipt, including, without limitation, this Article
3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the 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 Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, 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 required to be registered under
the provisions of the Securities Act of 1933 prior to public offer and sale in
the United States unless a registration statement is in effect as to such
Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such
3
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner hereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares are validly
issued, fully paid, non-assessable, and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
such Shares and the Receipts evidencing American Depositary Shares representing
such Shares are not Restricted Securities. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or other
information as the Depositary may deem necessary or proper. The Depositary may
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or sale or 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. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in Sweden which is then
performing the function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary
4
in the conversion of foreign currency pursuant to Section 4.05 of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Section
2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of Receipts
pursuant to Section 2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to Sections 4.01 through 4.04 of the Deposit
Agreement, (7) a fee for the distribution of securities pursuant to Section 4.02
of the Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares),
but which securities are instead distributed by the Depositary to Owners and (8)
any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit Agreement and shall be payable at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.05 of the Deposit Agreement, deliver Deposited Securities upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipt to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the
5
Depositary determines, in good faith, will provide substantially similar
liquidity and security, (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 deem appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt, 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 New York; provided,
however, that 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 the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes, and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
10. 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 shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts shall have been
appointed and such Receipts are countersigned by the manual or facsimile
signature of a duly authorized officer of the Registrar.
6
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at 100 F Street, N.E., Washington, D.C. 20549.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary or the Custodian or the nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also, upon written
request, send to Owners of Receipts copies of such reports when furnished by the
Company pursuant to the Deposit Agreement. Any such reports and communications,
including any such proxy soliciting materials, furnished to the Depositary by
the Company shall be furnished in English to the extent such materials are
required to be translated into English pursuant to any regulations of the
Commission.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Custodian or the Depositary receives any cash dividend or
other cash distribution on any Deposited Securities, the Depositary will, if at
the time of receipt thereof any amounts received in a foreign currency can in
the judgment of the Depositary be converted on a reasonable basis into United
States dollars transferable to the United States, and subject to the Deposit
Agreement, as promptly as practicable convert or cause to be converted such
dividend or distribution into dollars and will as promptly as practicable
distribute such amount (net of the fees and expenses of the Depositary as
provided in Article 7 hereof and Section 5.09 of the Deposit Agreement) to the
Owners of Receipts entitled thereto; provided, however, that in the event that
the Company 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, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
7
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by the Custodian
to be distributed to the Owners of Receipts entitled thereto, in any manner that
the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may, upon consultation with the
Company to the extent practicable, adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Article 7 hereof and Section 5.09 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash,
pursuant to Section 4.01 of the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, upon consultation with the Company, and shall if the
Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement. The Depositary may withhold any such
distribution if it has not received satisfactory assurances from the Company
that such distribution does not require registration under the Securities Act of
1933. In lieu of delivering Receipts for fractional American Depositary Shares
in any such case, the Depositary will sell the amount of Shares represented by
the aggregate of such fractions and distribute the net proceeds of such sale,
all in the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
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 charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
8
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds, if any, available in Dollars
to such Owners; provided, that the Depositary will, if requested by the Company,
take action as follows: (i) if at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all or certain Owners by means of warrants or
otherwise, the Depositary may distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate or employ such other method as it may deem
feasible in order to facilitate the exercise, sale or transfer of rights by such
Owners; or (ii) if at the time of the offering of any rights the Depositary
determines in its discretion that it is not lawful and feasible to make such
rights available to all or certain Owners by means of warrants or otherwise, or
if the rights represented by such warrants or other instruments are not
exercised and appear to be about to lapse, the Depositary shall use reasonable
efforts to sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise all in the manner and subject to the conditions described in Section
4.01 of the Deposit Agreement; provided, however, that if by the terms of such
rights offering or by reason of applicable law, the Depositary may neither make
such rights available to such Owners nor dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse (without incurring liability to any person as a consequence thereof).
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
9
Upon instruction from such an Owner pursuant to such warrants or other
instruments to the Depositary to exercise such rights, upon payment by such
Owner to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges as set forth in
such warrants or other instruments, the Depositary shall, on behalf of such
Owner, exercise the rights and purchase the Shares, and the Company shall cause
the Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver
Receipts to such Owner; provided, however, that in the case of a distribution
pursuant to the second paragraph of this Article 13, such deposit shall be made
and depositary shares shall be delivered under other depositary arrangements to
be entered into between the Company and the Depositary which provide for
issuance of depositary receipts subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under applicable United States laws.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement or this Receipt shall create, or be construed to create, any
obligation on the part of the Company to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective. If an Owner of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
Subject to Section 5.03 of the Deposit Agreement, the Depositary shall not
be responsible for any failure to determine that it may be lawful or feasible to
make such rights available to Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall as promptly as practicable convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars shall be distributed as promptly
as practicable to the Owners entitled thereto or, if the Depositary shall have
distributed any
10
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion with regard to a particular Owner or distribution can
be effected only with the approval or license of any government or agency
thereof, the Depositary may file such application for approval or license, if
any, as it may deem advisable.
If at any time the Depositary shall determine that in its reasonable
judgment any foreign currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever 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 holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient, the Depositary shall fix a
record date (which shall, to the extent practicable, be the same date as the
corresponding date fixed by the Company) (a) for the determination of the Owners
of Receipts who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) responsible for any fee
assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after
which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
11
16. VOTING OF DEPOSITED SECURITIES.
As of the date of the Deposit Agreement, the Company does not intend to
request distribution of voting materials for exercise of voting rights by the
holders of American Depositary Shares. If the Company in its discretion shall
decide to extend voting rights to Owners and Beneficial Owners, upon receipt of
notice of any meeting or solicitation of consents or proxies of holders of
Shares or other Deposited Securities, if requested in writing by the Company,
the Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners of Receipts as of the close
of business on a specified record date will be entitled, subject to any
applicable provision of law and of the Articles of Association of the Company
and the provisions of the Deposited Securities (which provisions, if any, shall
be summarized in pertinent part, it being understood that the Company shall
prepare such summary), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares, (c) a
statement as to the manner in which such instructions may be given and (d) a
statement that by instructing the Depositary as to the exercise of voting rights
with respect to the Deposited Securities such Beneficial Owner will be deemed
(i) to authorize the Depositary to cause the number of Deposited Securities
evidenced by the number of American Depositary Shares held by such Beneficial
Owner to be registered in the name of such Beneficial Owner in a temporary
voting account five (5) days prior to the date on which such vote is to occur
and immediately after such vote to register such Deposited Securities in the
name of the Depositary or the Custodian or their respective nominees, and (ii)
to authorize the Company and the Depositary to make such other arrangements as
they may deem necessary or advisable consistent with Swedish law, the Articles
of Association of the Company and the terms of the Deposited Securities to
permit the Depositary to carry out such instructions, and (iii) to agree not to
transfer, surrender or otherwise dispose of such Beneficial Owner's American
Depositary Shares representing such Deposited Securities until after the date
such vote is to occur. The parties acknowledge that, under Swedish law and the
Company's Articles of Association as in effect on the date hereof, an Owner will
only be entitled to exercise the voting rights, if any, pertaining to the Shares
or other Deposited Securities under (but not any fraction thereof) represented
by the ADSs if such Owner is entered in the register of shareholders maintained
by VPC not later than the fifth day prior to such meeting, and gives notice of
his intention to attend the meeting, in person or by proxy, not later than 4:00
p.m. on a date specified in the notice convening the meeting. Upon the written
request of a Beneficial Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by such American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request and will notify the Company in advance of its intention to so
vote, or cause to be voted, as required to preserve such
12
voting rights. Neither the Depositary nor the Custodian shall under any
circumstances exercise any discretion as to voting, vote, attempt to exercise
the right to vote, or in any way make use of, for purposes of establishing a
quorum or otherwise, Deposited Securities except pursuant to and in accordance
with such written instructions from Owners. Deposited Securities for which no
specific voting instructions are received by the Depositary from the applicable
Owner shall not be voted.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in ratio value, split-up, consolidation,
cancellation 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
in respect of Deposited Securities shall be treated as new Deposited Securities
under the Deposit Agreement, and American Depositary Shares shall thenceforth
represent the right to receive new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, with the Company's
approval, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities. Upon the occurrence of any such
change, conversion or exchange covered by this Section in respect of the
Deposited Securities, the Depositary shall, as promptly as practicable, give
notice thereof, at the Company's expense, in writing to all Owners of Receipts.
18. LIABILITY OF THE COMPANY AND THE DEPOSITARY.
None of the Depositary, the Company or any of their respective directors,
employees, agents or affiliates shall incur any liability to any Owner or
Beneficial Owner of any Receipt, (i) if by reason of any provision of any
present or future law or regulation of the United States or Sweden or any other
country, or of any governmental or regulatory authority, or by reason of any
provision, present or future, of the Articles of Association of the Company, or
by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement it is provided shall be done or
performed, (ii) by reason of any non-performance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of the Deposit
Agreement it is provided shall or may be done or performed, (iii) by reason of
any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement, (iv) for the inability of any Owner or Beneficial
13
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 the Deposit Agreement, made available to Owners or Beneficial Owners, or (v)
for any special, consequential or punitive damages for any breach of the terms
of the Deposit Agreement. Where, by the terms of a distribution pursuant to
Sections 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering. Neither the Company nor
the Depositary assumes any obligation or shall be subject to any liability under
the Deposit Agreement to Owners or Beneficial Owners of Receipts, except that
they agree to perform their obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. The Depositary shall not be subject
to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit, or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or Beneficial Owner of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any such vote is cast or
the effect of any such vote, provided that any such action or nonaction is in
good faith and in accordance with the terms of the Deposit Agreement. The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with a matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises, the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal, effective upon
the appointment of a successor depositary and its acceptance of such appointment
as provided in the Deposit
14
Agreement. The Depositary in its discretion may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty (30) days after notice of such amendment shall have been given to the
Owners of outstanding Receipts. Every Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT
The Depositary at any time at the direction of the Company shall terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least thirty (30) days prior to the date fixed in
such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time ninety (90) days shall
have expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.05 of the Deposit Agreement, and (c) 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 the American
Depositary Shares evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners 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
15
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary with respect
to indemnification, charges, and expenses.
22. SUBMISSION TO JURISDICTION.
In the Deposit Agreement, the Company has (i) appointed Husqvarna Outdoor
Products, Inc. 1030 Stevens Creek Road, Augusta, GA 30407, telephone + (706) 826
6900, facsimile + (706) 823 8968, as the Company's authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, (ii) consented and submitted to the jurisdiction of any state
or federal court in the State of New York in which any such suit or proceeding
may be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding.
16