[FORM OF FACE OF RECEIPT]
Number_________________________ CUSIP NO.:
American Depositary
Shares (Each American
Depositary Share
representing one-fourth (1/4) of one
Ordinary Share
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of Royal DSM N. V.
(Incorporated under the laws of the Kingdom of The Netherlands)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that __________________________________ is the
owner of __________________________________ American Depositary Shares
(hereinafter "ADS"), representing deposited Ordinary Shares, including evidence
of rights to receive such Ordinary Shares (the "Shares") of Royal DSM N. V., a
corporation incorporated under the laws of the Kingdom of The Netherlands (the
"Company"). As of the date of the Deposit Agreement (hereinafter referred to),
each ADS represents one-fourth (1/4) of one (1) Share deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Citibank, N.A. - Amsterdam (the "Custodian"). The ratio of
American Depositary Shares to Shares is subject to subsequent amendment as
provided in Articles IV and VI of the Deposit Agreement. The Depositary's
Principal Office is located at 388 Greenwich Street, New York, New York 10013,
U.S.A
A-1
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Amended and Restated Deposit
Agreement, dated as of December 3, 2001 (as further amended and supplemented
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs
evidenced by ADRs issued thereunder. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of ADRs and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time, received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement or by continuing to hold, from and after the date hereof,
any American depositary share issued and outstanding under the Original Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement, and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in the Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of the Deposit Agreement and the applicable ADRs, the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association of the Company, to which reference is
hereby made. All capitalized terms used herein which are not otherwise defined
herein shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities. The Depositary has made arrangements for the
acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC
must rely on the procedures of DTC and the DTC Participants to exercise and be
entitled to any rights attributable to such ADSs. The ADR evidencing the ADSs
held through DTC will be registered in the name of a nominee of DTC. So long as
the ADSs are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the ADR registered in the name of DTC (or its nominee)
will be shown on, and transfers of such ownership will be effected only through,
records maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or
their nominees).
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the
A-2
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this ADR) for the purpose of withdrawal of
the Deposited Securities represented thereby, (ii) if so required by the
Depositary, this ADR has been properly endorsed in blank or is accompanied by
proper instruments of transfer in blank (including signature guarantees in
accordance with standard securities industry practice), (iii) if so required by
the Depositary, the Holder of the ADSs has executed and delivered 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 the
person(s) designated in such order, and (iv) all applicable fees and charges of,
and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this ADR, of the Deposit Agreement, of the Company's Articles
of Association, of any applicable laws and the rules of NECIGEF, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) shall direct the Custodian to Deliver (without unreasonable
delay) at the Custodian's designated office the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of title
for the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this ADR, of the Articles of Association of the Company, of any applicable laws
and the rules of the NECIGEF, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADRs evidencing ADSs
representing less than one Share. In the case of surrender of an ADR evidencing
a number of ADS representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be Delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) return to the person surrendering such ADSs the number of
ADSs representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Shares represented by the ADS(s) so surrendered and remit
the proceeds thereof (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal.
A-3
At the request, risk and expense of any Holder so surrendering ADSs represented
by this ADR, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held by the Custodian in respect of, the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Principal Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the U.S.),
and (iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
subject, however, in each case, to the terms and conditions of this ADR, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender of any ADR, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
an ADS or
A-4
an ADR of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn) and payment of any applicable fees and charges of the Depositary
as provided in the Deposit Agreement and in this ADR, (ii) the production of
proof satisfactory to it as to the identity and genuineness of any signature or
any other matters contemplated by the Deposit Agreement, and (iii) compliance
with (A) any laws or governmental regulations relating to the execution and
Delivery of ADRs or ADSs or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR and the Deposit Agreement and
applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of ADRs in particular instances may be refused, or the registration of
transfer of ADRs generally may be suspended, during any period when the transfer
books of the Company, the Depositary, a Registrar or the Share Registrar are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this ADR, or under any provisions of, or
governing, the Deposited Securities, meeting of shareholders of the Company or
for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADS(s) to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the ADRs or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A. (1) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
agrees to comply with requests (an "Information Request") from the Company
pursuant to the rules and requirements of Euro NEXT Amsterdam N.V., the Deutsch
Borse AG and the SWX Swiss Exchange and any stock exchange on which the Shares
or the ADSs are, or will be, registered, traded or listed, or the Articles of
Association of the Company, which are made to provide information, inter alia,
as to the capacity in which such Holder or Beneficial Owner owns ADSs (and
Shares, as the case may be) and regarding the identity of any other person(s)
interested in such ADSs and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward,
upon the request of the Company and at the Company's
A-5
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to the such requests received by the Depositary.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion, but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. The Depositary shall use its
reasonable efforts to comply with reasonable instructions of the Company as
provided in Section 3.5 of the Deposit Agreement and this Article (6).
The Company has advised the Depositary that under the Dutch Act on the
Disclosure of Holdings in listing Companies, shareholders including Holders and
Beneficial Owners must promptly notify the Company and The Netherlands
Securities Investment Board if their holdings reach, exceed or fall below 5%,
10%, 25%, 50% or 66-2/3% of the capital interest and/or voting rights in the
Company. Holders and Beneficial Owners agree to comply with such requirements.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable with respect to any ADR or any
Deposited Securities or ADSs, such tax or other governmental charge shall be
payable by the Holders to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of the Holder and/or
Beneficial Owner any or all of the Deposited Securities represented by such
Holder's and/or Beneficial Owner's ADS(s) and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the Depositary.
may refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Article (24) hereof) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold
A-6
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Notwithstanding any
other provision of the Deposit Agreement, every person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities, (v) the Shares presented for deposit have not been stripped of any
rights or entitlements. Such representations and warranties shall survive the
deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time (i) to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions
of, or governing, the Deposited Securities and (ii) to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may reasonably deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under the Deposit Agreement. The Depositary and the
Registrar, as applicable, may withhold the execution, Delivery or registration
of transfer of any ADR or the distribution or sale of any dividend or other
distribution of rights or of the proceeds thereof or, to the extent not limited
by the terms of Article (24) hereof and the terms of the Deposit Agreement, the
delivery of any Deposited Securities until such proof or other information is
filed or such certifications are executed, or such representations are made, or
such other information and documentation are provided, in each case to the
Depositary's, Registrar's, and Company's satisfaction.
A-7
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares
(excluding issuances pursuant to paragraph (iv) below), a fee not in
excess of U.S. $5.00 per 100 ADSs (or portion thereof) so issued
under the terms of the Deposit Agreement;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities, a fee not in excess of U. S. $5.00 per 100
ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $5.00 per 100
ADSs (or portion thereof) held for the distribution of cash proceeds
(i.e., upon the sale of unexercised rights and other entitlements)
under the terms of the Deposit Agreement; and
(iv) to any Holder of ADRs, a fee not in excess of U.S. $5.00 per 100
ADSs (or portion thereof) issued pursuant to stock dividends or
other free stock distributions or upon the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADS s;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
A-8
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary. The
right of the Depositary to receive payment of fees, charges and expenses shall
survive termination of the Deposit Agreement.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that the ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the contrary, the
Depositary and the Company may deem and treat the Holder of this ADR (that is,
the person in whose name this ADR is registered on the books of the Depositary)
as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the
Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner
unless such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
A-9
(13) Available Information; Reports: Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Exchange
Act. These reports and documents can be inspected and copied at public reference
facilities maintained by the Commission located at 100 F Street, N.E.,
Washington, D.C. 20549. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the ADRs.
After consultation with the Company, to the extent reasonably practicable,
the Registrar may close the transfer books with respect to the ADRs, at any time
or from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties under the Deposit Agreement, or at
the reasonable written request of the Company subject, in all cases, to Article
(24) hereof.
Dated:
Countersigned CITIBANK, N.A., as Depositary
By: By:
------------------------------- -------------------------------
Authorized Signatory
The address of the Principal Office of the Depositary is 388 Greenwich
Street, New York, New York 10013, U.S.A.
A-10
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the U.S., (i) promptly convert or cause to be converted such
cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms set forth in the Deposit Agreement and in Article (16), and (iii) promptly
distribute the amount thus received (net of (a) the applicable fees and charges
hereof, and expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit from the Custodian, the Depositary shall, subject to and in
accordance with the Deposit Agreement, establish the ADS Record Date and either
(i) the Depositary shall distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in aggregate the number of Shares received as such
dividend, or free distribution, subject to the terms of the Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights
and interests in the additional integral number of Shares distributed upon the
Deposited Securities
A-11
represented thereby (net of (a) the applicable fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U. S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall promptly distribute the net proceeds of any such sale (after deduction of
such (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit Agreement.
No distribution to Holders pursuant to this Article (14) shall be unreasonably
delayed by any action of the Depositary. To the extent such securities, or
property or the net proceeds thereof are not distributed to Holders as provided
in this Article (14) the same shall, to the maximum extent permitted by law,
constitute Deposited Securities and each ADS shall thereafter also represent its
proportionate interest in such securities, property or net proceeds. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS record date according to Article (16) and establish procedures to enable
the Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
distribution shall be made as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares. If such
elective distribution is not legal or reasonably practicable or if the
Depositary did not receive satisfactory documentation set forth in the Deposit
Agreement, the Depositary shall, to the extent permitted by law, distribute to
Holders, on the basis of the same determination as is made in The Netherlands in
respect of the Shares for which no election is made, either (x) cash or (y)
additional ADSs representing such additional Shares, in each case, upon the
terms described in the Deposit Agreement. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holder hereof a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that the Holder hereof will be given the
A-12
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution of rights is reasonably practicable. If
such conditions are not satisfied, the Depositary shall sell the rights as
described below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in the
Deposit Agreement) and establish procedures (x) to distribute such rights to
purchase additional ADSs (by means of warrants or otherwise), (y) in proportion
to the number of ADSs held by each such Holder to whom a distribution is to be
made hereunder, and to enable the Holders to exercise the rights (upon payment
of the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise such rights to subscribe for Shares (rather than ADSs). If
(i) the Company does not timely request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not reasonably practicable
to make the rights available to Holders, or (iii) any rights made available are
not exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
or private sale) as it may deem practicable. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or reasonably practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the
A-13
Holders (i) unless and until a registration statement under the Securities Act
(or other applicable law) covering such offering is in effect or (ii) unless the
Company furnishes the Depositary opinion(s) of counsel for the Company in the
U.S. and counsel to the Company in any other applicable country in which rights
would be distributed, in each case reasonably satisfactory to the Depositary, to
the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein or in the Deposit Agreement shall obligate the Company to
file any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Subject to the terms of Article IV of the Deposit Agreement, distributions
in respect of Deposited Securities that are held by the Depositary in bearer
form shall be made to the Depositary for the account of the respective Holders
of ADSs with respect to which any such distribution is made upon due
presentation by the Depositary or the Custodian to the Company of any relevant
coupons, talons, or certificates. The Company shall promptly notify the
Depositary of such distributions. The Depositary or the Custodian shall promptly
present such coupons, talons or certificates, as the case may be, in connection
with any such distribution.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine, upon consultation with the Company,
whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is reasonably practicable. Upon satisfaction of such conditions, the Depositary
shall distribute the property so received as promptly as practicable to the
Holders of record as of the ADS Record Date, in proportion to the number of ADSs
held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of
A-14
any taxes withheld. The Depositary may dispose of all or a portion of the
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted, as soon as practicable into
Dollars and (ii) distribute the proceeds of such conversion received by the
Depositary (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms hereof. If the Depositary is unable to sell such property for the account
of the Holders, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and satisfactory documentation under the terms of the Deposit
Agreement, and upon determining that such proposed redemption is practicable,
the Depositary shall distribute to each Holder a notice setting forth the
Company's intention to exercise the redemption rights and any other particulars
set forth in the Company's notice to the Depositary. Upon receipt of
confirmation that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer,
distribute the proceeds (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof and upon the terms of the Deposit
Agreement. If less than all outstanding Deposited Securities are redeemed, the
ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of the Deposit Agreement
and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or proxy,
or any other matter, the Depositary shall, fix a record date (the "ADS Record
Date") for the determination of
A-15
the Holders of ADRs who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law, the
terms and conditions of this ADR and the Deposit Agreement, only the Holders of
ADRs at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing at least 25 Business days before the date of
the relevant meeting or response date (the Depositary having no obligation to
take any further action if the request shall not have timely been received by
the Depositary at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders as of the ADS Record Date (a) such notice of
meeting or solicitation of consent or proxy, (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs, and (c) a brief statement as to the manner in which such voting
instructions may be given. Voting instructions may be given only in respect of a
number of ADSs representing an integral number of Deposited Securities. Upon the
timely receipt from a Holder of ADSs as of the ADS Record Date in the manner
specified by the Depositary and satisfaction of the conditions set forth below,
the Depositary shall endeavor, insofar as practicable and permitted under
applicable law and the provisions of the Articles of Association of the Company
and the Deposit Agreement, the law of The Netherlands and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by the ADSs in respect of which
voting instructions have been received.
Neither the Depositary nor the Custodian shall, under any circumstances,
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in
favor of the items set forth in such voting instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted. Notwithstanding anything else
A-16
contained herein, the Depositary shall, if so requested in writing by the
Company, represent all Deposited Securities (whether or not voting instructions
have been received in respect of such Deposited Securities from Holders as of
the ADS Record Date) for the sole purpose of establishing quorum at a meeting of
shareholders. Notwithstanding anything else contained in the Deposit Agreement
or this ADR, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
value, split-up, cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's prior approval, and shall, if the Company
shall so request, subject to the terms of the Deposit Agreement and the
Depositary's reasonable satisfaction with the documentation provided under the
Deposit Agreement, execute and deliver additional ADRs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR contained in
this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall, if the
Company requests, subject to the Depositary's reasonable satisfaction with the
documentation provided under the Deposit Agreement, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Holders in general or
any Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities. If requested in writing by the Company, upon the occurrence of any
such change, conversion or exchange covered by this Article (18) in
A-17
respect of Deposited Securities, the Depositary shall give notice thereof in
writing to the Holders thereof.
(19) Exoneration. Neither the Depositary nor the Company, nor any of their
respective directors, employees, agents or Affiliates shall be obligated to do
or perform any act which is inconsistent with the provisions of the Deposit
Agreement or incur any liability (i) if the Depositary or the Company shall be
prevented or forbidden from, or subjected to any civil or criminal penalty or
restraint on account of, or delayed in, doing or performing any act or thing
required by the terms of the Deposit Agreement and this ADR, by reason of any
provision of any present or future law or regulation of the U.S., The
Netherlands or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint or by reason of any provision, present or future
of the Articles of Association of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, any Custodian and the Company, and their respective controlling
persons, directors, employees, agents and Affiliates may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the ADRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability shall be furnished as often as may be required (and no Custodian shall
be under any obligation whatsoever with respect to such
A-18
proceedings, the responsibility of each Custodian being solely to the
Depositary). The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment by the Company of
a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal, which notice of removal shall be effective on
the earlier of (i) the 90th day after delivery thereof to the Depositary, or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. In case at
any time the Depositary acting hereunder shall resign or be removed, the Company
shall use its best efforts to appoint a successor depositary, which shall be a
bank or trust company having an office in the Borough of Manhattan, the City of
New York. Every successor depositary shall be required by the Company to execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed (except as required by applicable law), shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in the Deposit Agreement), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADRs and such other information relating to ADRs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
A-19
(22) Amendment/Supplement. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges of the Depositary in connection with foreign exchange control
regulations, and taxes and other governmental charges, delivery and other such
expenses), or which shall otherwise materially prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding ADRs until the expiration of thirty (30) days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding ADRs. The parties to the Deposit Agreement agree that any amendments
or supplements which (i) are reasonably necessary (as agreed by the Company and
the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s) to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADR and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holder's ADR(s) at the Principal Office of the Depositary, upon the payment
A-20
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of the Deposited Securities represented by such ADR. If any ADRs shall
remain outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to the Deposited
Securities, shall sell rights as provided in the Deposit Agreement, and shall
continue to deliver the Deposited Securities, subject to the conditions and
restrictions set forth in the Deposit Agreement, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for ADRs surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a ADR, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six (6) months from the date of termination of
the Deposit Agreement, the Depositary may sell the Deposited Securities then
held under the terms of the Deposit Agreement and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by it
under the terms of the Deposit Agreement, in an unsegregated account, without
liability for interest, for the pro rata benefit of the Holders whose ADRs have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect to
the ADRs, the Deposited Securities and the ADSs, except (a) to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments) and (b) for its obligations to the Company under the
Deposit Agreement. Upon the termination of the Deposit Agreement, the Company
shall be discharged from all obligations under the Deposit Agreement except as
set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A. (1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
A-21
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that, the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
A-22
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto __________________________________ whose taxpayer
identification number is __________________________________ and whose address
including postal zip code is _____ , the within ADR and all rights thereunder,
hereby irrevocably constituting and appointing _________________________________
attorney-in-fact to transfer said ADR on the books of the Depositary with full
power of substitution in the premises.
Dated: Name:
----------------------------------
By:
Title:
NOTICE: The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatsoever.
If the endorsement be executed by an attorney, executor, administrator, trustee
or guardian, the person executing the endorsement must give his/her full title
in such capacity and proper evidence of authority to act in such capacity, if
not on file with the Depositary, must be forwarded with this ADR.
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
A-23