As filed with the Securities and Exchange Commission on
February 11, 2004 Registration No. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED FOR AMERICAN DEPOSITARY SHARES
EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS
-----------------------------
AKZO NOBEL N.V.
(Exact name of issuer of deposited securities as specified in its charter)
-----------------
N/A
(Translation of issuer's name into English)
--------------------------------------------
The Netherlands
(Jurisdiction of incorporation or organization of issuer)
--------------------------------------------
CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
--------------------------------
111 Wall Street
New York, New York 10043
(212) 657-5100
(Address, including zip code, and telephone number, including area
code, of Depositary's principal executive offices)
--------------------------------
Akzo Nobel Inc.
7 Livingstone Avenue
Dobbs Ferry, NY 10522
(Name, address, including zip code, and telephone number,
including area code of agent for service)
--------------------------------
Copies to:
Richard C. Morrissey Frettra M. Miller, Esq.
Sullivan & Cromwell LLP Citibank, N.A.
1 New Fetter Lane 388 Greenwich Street, 19th Floor
London EC4A 1AN New York, New York 10013
United Kingdom
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It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to
register the deposited shares, check the following box |_|.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Title of Each Amount to be Maximum Maximum Registration
Class of Securities Registered Aggregate Aggregate Fee
to be Registered Offering Offering
Price Per Price**
Unit*
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American Depositary 100,000,000 $5.00 $5,000,000.00 $633.50
Shares evidenced by
American Depositary
Receipts, each
American Depositary
Share representing
one (1) Ordinary
share, nominal
value Eur 2 per
share of Akzo Nobel
N.V. (the "Company")
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* Each unit represents one hundred (100) American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of such receipts evidencing such American Depositary Shares.
This Registration Statement may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of such counterparts together shall
constitute one and the same instrument.
PART I
INFORMATION REQUIRED IN PROSPECTUS
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
CROSS REFERENCE SHEET
Item Number and Caption Location in Form of American
-----------------------
Depositary Receipt ("Receipt")
Filed Herewith as Prospectus
------------------------------
1. Name of depositary and Face of Receipt - Introductory
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address of its principal article.
executive office
2. Title of American Depositary Face of Receipt - Top center.
---------------
Receipts and identity of
deposited securities
Terms of Deposit:
(i) The amount of deposited Face of Receipt - Upper right corner.
---------------
securities represented
by one American
Depositary Share
(ii) The procedure for voting, Reverse of Receipt - Paragraphs (16)
------------------
if any, the deposited and (17).
securities
(iii)The collection and Face of Receipt - Paragraph (14).
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distribution of
dividends
(iv) The transmission of Face of Receipt - Paragraphs (13) and
---------------
notices, reports and (16).
proxy soliciting
material
(v) The sale or exercise of Face of Receipt - Paragraphs (14) and
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rights (16).
(vi) The deposit or sale of Face of Receipt - Paragraphs (3),
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securities resulting (6), (14) and (18).
from dividends, splits or
plans of reorganization
(vii)Amendment, extension or Reverse of Receipt - Paragraphs (23)
------------------
termination or the and (24)(no provision for extensions)
deposit agreement
(viii)Rights of holders of Face of Receipt - Paragraph (13).
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Receipts to inspect the
the transfer books of the
depositary and the list
of holders of Receipts
(ix) Restrictions upon the Face of Receipt - Paragraphs (2),
---------------
right to deposit or (3), (4), (6), (7), (9) and (10).
withdraw the underlying
securities
(x) Limitation upon the Face of Receipt - Paragraph (7)
---------------
liability of the Reverse of Receipt - Paragraphs (19)
------------------
depositary and (20).
3. Fees and charges which may be Reverse of Receipt - Paragraph (10).
------------------
imposed directly or indirectly
against holders of Receipts
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraphs (11),
----------------
(19) and (20).
The Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended, and, accordingly, files certain reports with
the Securities and Exchange Commission (the "Commission"). These reports and
other information can be inspected by holders of Receipts and copied at public
reference facilities maintained by the Commission located at Room 1024, 450
Fifth Street, NW, Washington, D.C. 20549, and the following Regional Office of
the Commission: Chicago Regional Office, Suite 1400, Citicorp Center, 500 West
Madison Street, Chicago, Illinois 60661 and at the principal executive office of
the depositary.
PROSPECTUS
----------
THE PROSPECTUS CONSISTS OF THE FORM OF AMERICAN DEPOSITARY
RECEIPT, ATTACHED AS EXHIBIT A TO THE AMENDED AND RESTATED
DEPOSIT AGREEMENT FILED AS EXHIBIT (A) TO THIS REGISTRATION
STATEMENT AND INCORPORATED HEREIN BY REFERENCE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Amended and Restated Deposit Agreement, dated as of
October 15, 1999, by and among, Akzo Nobel N.V. (the "Company"), Citibank, N.A.,
as depositary (the "Depositary"), and all Holders and Beneficial Owners from
time to time of American Depositary Receipts issued thereunder (including the
form of American Depositary Receipt ("ADR") to be issued thereunder). - Filed
herewith as Exhibit (a).
(b) Any other agreement, to which the Depositary is a party
relating to the issuance of the American Depositary Shares registered hereby or
the custody of the deposited securities represented thereby. - None.
(c) Every material contract relating to the deposited
securities between the Depositary and the issuer of the deposited securities in
effect at any time within the last three years. - None.
(d) Opinion of Frettra M. Miller, counsel to the Depositary,
as to the legality of the securities to be registered. - Filed herewith as
Exhibit (d).
(e) Rule 466 Certification. - Filed herewith as Exhibit (e).
(f) Powers of Attorney for certain officers and directors and
the authorized representative of the Company. - Set forth on signature pages
hereto.
Item 4. UNDERTAKINGS
a) The Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by holders of the
ADRs, any reports and communications received from the issuer of the deposited
securities that are both (1) received by the Depositary as the holder of the
deposited securities and (2) made generally available to the holders of the
underlying securities by the issuer.
b) The Depositary hereby undertakes to prepare a separate document
stating the amount of any fee charged and describing the service for which it is
charged and to deliver promptly a copy of such fee schedule without charge to
anyone upon request. The Depositary undertakes to notify each registered holder
of an ADR thirty (30) days before any change in the fee schedule.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
Citibank, N.A., on behalf of the legal entity created by the Amended and
Restated Deposit Agreement, dated as of October 15, 1999, by and among Akzo
Nobel N.V., a company incorporated and existing under the laws of The
Netherlands, Citibank, N.A., as depositary, and the Holders and Beneficial
Owners of American Depositary Receipts issued thereunder (the "Deposit
Agreement"), certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 11th day of
February, 2004.
Legal entity created by the Amended and Restated
Deposit Agreement for the issuance of American
Depositary Receipts evidencing American
Depositary Shares, each representing one (1)
Ordinary Share, nominal value Eur 2 per share of
Akzo Nobel N.V.
CITIBANK, N.A., as Depositary
By: /s/ Susanna Ansala
-------------------------------
Name: Susanna Ansala
Title: Vice President
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, Akzo
Nobel N.V. certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in ________, on the 11th day of February, 2004.
AKZO NOBEL N.V.
By: /s/ F.W. Frohlich
-------------------------------
Name: F.W. Frohlich
Title: Deputy Chairman/CFO
By: /s/ F.H. Hensel
-----------------------------------------
Name: F.H. Hensel
Title: Senior Vice President Finance
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Kennith Frank, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all pre-
or post- effective amendments to this Registration Statement, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 11, 2004.
Name Title
/s/ G.J. (Hans) Wijers Chairman and Chief Executive Officer
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Name: G.J. (Hans) Wijers (Principal Executive Officer)
/s/ Fritz W. Frohlich Director, Chief Financial Officer
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Name: Fritz W. Frohlich (Principal Financial Officer)
/s/ Jacq J.M. Derckx Chief Accounting Officer
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Name: Jacq J.M. Derckx (Principal Accounting Officer)
/s/ A.T.M. (Toon) Wilderbeek Director
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Name: A.T.M. (Toon) Wilderbeek
/s/ Rudy M.J. van der Meer Director
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Name: Rudy M.J. van der Meer
/s/ Dag Stromqvist Director
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Name: Dag Stromqvist
/s/ Kennith Frank Authorized Representative in
-------------------------------
Name: Kennith Frank the United States
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(a) Amended and Restated
Deposit Agreement,
dated October 15, 1999
(d) Opinion of Counsel to
the Depositary
(e) Rule 466 Certification
(a) Amended and Restated Deposit Agreement, dated October 15, 1999
Execution
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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
AKZO NOBEL N.V.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of October 15, 1999
TABLE OF CONTENTS
ARTICLE I................................................................... 2
DEFINITIONS .............................................................. 2
Section 1.1 "Affiliate" ............................................ 2
Section 1.2 "American Depositary Share(s)" ......................... 2
Section 1.3 "ADS Record Date" ...................................... 3
Section 1.4 "Applicant" ............................................ 3
Section 1.6 "Business Day" ......................................... 3
Section 1.7 "Commission" ........................................... 3
Section 1.8 "Company" .............................................. 4
Section 1.9 "Custodian" ............................................ 4
Section 1.10 "Deliver................................................ 4
Section 1.11 "Deposit Agreement" .................................... 4
Section 1.12 "Depositary" ........................................... 4
Section 1.13 "Deposited Securities" ................................. 4
Section 1.14 "Dollars" .............................................. 5
Section 1.15 "DTC.................................................... 5
Section 1.16 "DTC Participant" ...................................... 5
Section 1.17 "Exchange Act" ......................................... 5
Section 1.18 "Foreign Currency" ..................................... 5
Section 1.19 "Holder" ............................................... 5
Section 1.20 "Original Deposit Agreement" ........................... 6
Section 1.21 "Original Depositary" .................................. 6
Section 1.22 "Pre-Release Transaction" .............................. 6
Section 1.23 "Principal Office" ..................................... 6
Section 1.24 "Receipt(s)" ........................................... 6
Section 1.25 "Registrar" ............................................ 6
Section 1.26 "Restricted ADRs"; "Restricted ADSs" ................... 7
Section 1.27 "Restricted Securities" ................................ 7
Section 1.28 "Securities Act" ....................................... 8
Section 1.29 "Share Registrar........................................ 8
Section 1.30 "Shares" ............................................... 8
Section 1.31 "United States" ........................................ 8
Section 1.32 "NECIGEF" .............................................. 8
Section 1.33 "Euro................................................... 9
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS .................................................... 9
Section 2.1 Appointment of Depositary............................... 9
i
Section 2.2 Form and Transferability of Receipts.................... 9
Section 2.3 Deposit with Custodian.................................. 12
Section 2.4 Registration and Safekeeping of Deposited Securities.... 14
Section 2.5 Execution and Delivery of Receipts..................... .15
Section 2.6 Transfer, Combination and Split-up of Receipts ......... 16
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.18
Section 2.8 Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc. 20
Section 2.9 Lost Receipts, etc...................................... 22
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records............................. 22
Section 2.11 Partial Entitlement ADSs................................ 23
Section 2.12 Restricted ADSs......................................... 24
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs ............................................ 26
Section 3. 1 Proofs, Certificates and Other Information ............. 26
Section 3.2 Liability for Taxes and Other Charges .................. 28
Section 3.3 Representations and Warranties on Deposit of Shares .... 28
Section 3.4 Compliance with Information Requests ................... 29
Section 3.5 Ownership Restrictions.................................. 30
ARTICLE IV
THE DEPOSITED SECURITIES............................................... 31
Section 4.1 Cash Distributions ..................................... 31
Section 4.2 Distribution in Shares ................................. 32
Section 4.3 Elective Distributions in Cash or Shares ............... 33
Section 4.4 Distribution of Rights to Purchase Additional ADSs ..... 34
Section 4.5 Distributions Other Than Cash, Shares or Rights
to Purchase Shares ................................ 37
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form ....................................... 39
Section 4.7 Redemption ............................................. 39
Section 4.8 Conversion of Foreign Currency ......................... 40
Section 4.9 Fixing of ADS Record Date .............................. 42
Section 4.10 Voting of Deposited Securities ......................... 43
Section 4.11 Changes Affecting Deposited Securities ................. 45
Section 4.12 Available Information .................................. 46
Section 4.13 Reports ................................................ 46
Section 4.14 List of Holders ........................................ 47
Section 4.15 Taxation ............................................... 47
ii
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY............................. 49
Section 5.1 Maintenance of Office and Transfer Books by the
Registrar.......................................... 49
Section 5.2 Exoneration............................................. 50
Section 5.3 Standard of Care........................................ 51
Section 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary................ 52
Section 5.5 The Custodian........................................... 54
Section 5.6 Notices and Reports..................................... 55
Section 5.7 Issuance of Additional Shares, ADSs etc................. 56
Section 5.8 Indemnification......................................... 58
Section 5.9 Fees and Charges of Depositary.......................... 60
Section 5.10 Pre-Release............................................. 61
Section 5.11 Restricted Securities Owners............................ 62
ARTICLE VI
AMENDMENT AND TERMINATION................................................. 63
Section 6.1 Amendment/Supplement ................................... 63
Section 6.2 Termination ............................................ 64
ARTICLE VII
MISCELLANEOUS ............................................................ 66
Section 7.1 Counterparts ........................................... 66
Section 7.2 No Third-Party Beneficiaries ........................... 66
Section 7.3 Severability ........................................... 67
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.67
Section 7.5 Notices ................................................ 67
Section 7.6 Governing Law and Jurisdiction ......................... 69
Section 7.7 Assignment ............................................. 71
Section 7.8 Compliance with U.S. Securities Laws ................... 71
Section 7.9 Titles ................................................. 72
Exhibits
Form of Receipt............................................................. A-1
Fee Schedule................................................................ B-1
iii
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of October 15, 1999,
by and among (i) AKZO NOBEL N. V., a company incorporated and existing under the
laws of The Netherlands, and its successors (the "Company"), (ii) CITIBANK,
N.A., a national banking association organized under the laws of the United
States of America acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company has duly authorized and has outstanding Shares (as
hereinafter defined);
WHEREAS, the Company and Morgan Guaranty Trust Company of New York (the
"Original Depositary") previously entered into the Deposit Agreement, dated as
of January 4, 1989, as amended by Amendment No. 1 to Deposit Agreement, dated as
of January 1, 1991, and as further amended by Amendment No. 2 to Deposit
Agreement, dated as of June 29, 1998 (as so amended, the "Original Deposit
Agreement");
WHEREAS, the Company has removed the Original Depositary and wishes to
amend and restate the Original Deposit Agreement upon the terms hereof to, inter
ali4, appoint a new depositary to act under the terms hereof,
WHEREAS, the Company desires to appoint Citibank, N.A. as depositary
and to provide for the deposit of Shares and the creation of American Depositary
Shares representing the Shares so deposited and for the execution and delivery
of American Depositary Receipts evidencing such American Depositary Shares;
WHEREAS, the Depositary is willing to act as the Depositary for such
ADR facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the
terms of this Deposit Agreement are to be listed on NASDAQ National Market
System; and
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to such term by
---------
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean,
---------------------------- ------
with respect to any American Depositary Receipt, the rights and interests in the
2
Deposited Securities granted to the Holders and Beneficial Owners pursuant to
the terms and conditions of this Deposit Agreement and the American Depositary
Receipts issued hereunder. The depositary shares issued and outstanding under
the Original Deposit Agreement shall, from and after the date hereof, for all
purposes be treated as American Depositary Shares issued and outstanding
hereunder and shall, from and after the date hereof, be subject to the terms
hereof. Each American Depositary Share shall represent one (1) Share, until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.2 or a change in Deposited Securities referred to in Section 4. 11
with respect to which additional American Depositary Shares are not issued, and
thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
Section 1.3 "ADS Record Date" shall have the meaning given to such
---------------
term in Section 4.9.
Section 1.4 "Applicant" shall have the meaning given to such term in
---------
Section 5.10.
Section 1.5 "Beneficial Owner" shall mean as to any ADS, any person or
----------------
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR(s) evidencing such
ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner.
Section 1.6 "Business Day" shall mean any day on which both the banks
------------
in The Netherlands and the banks in New York are open for business.
Section 1.7 "Commission" shall mean the Securities and Exchange
----------
Commission of the United States or any successor governmental agency in the
United States.
3
Section 1.8 "Company" shall mean Akzo Nobel N. V., a company
-------
incorporated and existing under the laws of The Netherlands and previously known
as "Akzo N. V." and its successors.
Section 1.9 "Custodian" shall mean, as of the date hereof, Citibank
---------
N.A. - Amsterdam Branch, having its principal office at Europlaza, Hoogoordreef
54B, 1101 B.E. Amsterdam Z.O., The Netherlands, as the custodian for the
purposes of this Deposit Agreement, and any other entity that may be appointed
by the Depositary pursuant to the terms of Section 5.5 as successor, substitute
or additional custodian hereunder, as the context shall require. The term
"Custodian" shall mean any Custodian individually or all custodians
collectively, as the context requires.
Section 1.10 "Deliver" and "Delivery" shall mean, when used in respect
------- --------
of ADSs, Deposited Securities and Shares, the physical delivery of the
certificate(s) representing such security, or the electronic delivery of such
security by means of book-entry transfer, if available.
Section 1.11 "Deposit Agreement" shall mean the Original Deposit
-----------------
Agreement as amended and restated by this Amended and Restated Deposit Agreement
and all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof
Section 1.12 "Depositary" shall mean Citibank, N.A., a national banking
----------
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.13 "Deposited Securities" shall mean Shares at any time
---------------------
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. Securities,
4
cash and any other property delivered to the Custodian in respect or in lieu of
ADSs issued under the Original Deposit Agreement and defined as "deposited
securities" thereunder, shall, for all purposes, be considered to be, and
treated as, Deposited Securities hereunder. The collateral delivered in
connection with Pre-Release Transactions described in Section 5. 10 hereof shall
not constitute Deposited Securities.
Section 1.14 "Dollars" and "$" shall refer to the lawful currency of
------- --
the United States.
Section 1.15 "DTC" shall mean The Depository Trust Company, a national
---
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.16 "DTC Participant" shall mean any financial institution (or
---------------
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.17 "Exchange Act" shall mean the United States Securities
------------
Exchange Act of 1934, as from time to time amended.
Section 1.18 "Foreign Currency" shall mean any currency other than
----------------
Dollars.
Section 1.19 "Holder" shall mean the person in whose name a Receipt is
------
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. Persons in
whose name a depositary receipt is registered on the books of the Original
Depositary as of the date hereof will, from and after the date hereof, be
treated for all purposes as a Holder under the terms hereof. If a Holder is not
the Beneficial Owner of the ADSs evidenced by the Receipt registered in its
name, such person shall be deemed to have all requisite authority to act on
5
behalf of the Beneficial Owners of the ADSs evidenced by such Receipt.
Section 1.20 "Original Deposit Agreement" shall have the meaning set
--------------------------
forth in the recitals of his Deposit Agreement.
Section 1.21 "Original Depositary" shall have the meaning set forth in
-------------------
the recitals of his Deposit Agreement.
Section 1.22 "Pre-Release Transaction" shall have the meaning set forth
-----------------------
in Section 5. 10.
Section 1.23 "Principal Office" when used with respect to the
----------------
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 111 Wall Street, New York,
New York 10043, U.S.A. The Principal Office shall serve as the sole designated
transfer office for ADSs issued hereunder.
Section 1.24 "Receipt(s)", "American Depositary Receipt(s)" and
---------- ------------------------------
"ADR(s)" shall mean the certificate(s) issued by the-Depositary to evidence the
------
American Depositary Shares issued under the terms of this Deposit Agreement, as
such Receipts may be amended from time to time in accordance with the provisions
of this Deposit Agreement. The depositary receipts issued and outstanding on the
date hereof under the terms of the Original Deposit Agreement shall, from and
after the date hereof and for all purposes, be treated as Receipts issued
hereunder and shall, from and after the date hereof, be subject to the terms
hereof in all respects. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
6
Section 1.25 "Registrar" shall mean the Depositary or any bank or trust
---------
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances and transfers
of Receipts as herein provided, and shall include any co-registrar appointed by
the Depositary for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary. Each Registrar (other than
the Depositary) appointed pursuant to this Deposit Agreement shall be required
to give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
Section 1.26 "Restricted ADRs"; "Restricted ADSs" shall mean any ADRs
----------------------------------
and ADSs issued pursuant to Section 2.12. Any such Restricted ADRs shall be held
by the Holder thereof to certificated form and legended in accordance with
applicable U.S. laws and shall be subject to the appropriate restrictions on
sale, deposit, cancellation and transfer under such laws.
Section 1.27 "Restricted Securities" shall mean Shares, Deposited
---------------------
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, The Netherlands, or under a shareholder agreement or
the Articles of Association of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being sold to persons other than an Affiliate of the
Company in a transaction (i) covered by an effective resale registration
7
statement, or (ii) exempt from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are
not, when held by such person(s), Restricted Securities.
Section 1.28 "Securities Act" shall mean the United States Securities
--------------
Act of 1933, as from time to time amended.
Section 1.29 "Share Registrar" shall mean NECIGEF (as hereinafter
---------------
defined) or any other institution organized under the laws of The Netherlands,
which carries out the duties of registrar for the Shares or any successor as
Share Registrar for such Shares appointed by the Company.
Section 1.30 "Shares" shall mean the Company's Ordinary Shares, nominal
------
value NLG 5 per share, validly issued and outstanding and fully paid and may, if
the Depositary so agrees after' consultation with the Company, include evidence
of the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in nominal value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4. 11 in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
maximum extent permitted by law, represent the successor securities resulting
from such change in nominal value, split-up, consolidation, exchange,
conversion, reclassification or event.
Section 1.31 "United States" shall have the meaning assigned to it in
-------------
Regulation S as promulgated by the Commission under the Securities Act.
Section 1.32 "NECIGEF" shall mean The Netherlands Central Institute for
-------
Giro Securities (Nederlands Centraal Instituut Voor Giraal Effektenverkeer)
8
which provides the book-entry settlement system for equity securities in The
Netherlands, or any successor entity thereto.
Section 1.33 "Euro" and "(euro)" shall mean the single currency of the
-----------------
participating member states in the Third Stage of European Economic and Monetary
Union pursuant to the treaty establishing the European Community, as amended
from time to time.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
-------------------------
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance-of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement and by continuing to hold from and after the date hereof any
depositary share issued under the Original Deposit Agreement, shall be deemed
for all purposes to (a) be a party to and bound by the terms of this Deposit
Agreement and (b) appoint the Depositary its attorney-in-fact, with full power
to delegate, to act on its behalf and to take any and all actions contemplated
in this Deposit Agreement, to adopt any and all procedures necessary to comply
with applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of this
Deposit Agreement (the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof).
9
Section 2.2 Form and Transferability of Receipts.
------------------------------------
(a) Form. ADSs shall be evidenced by definitive Receipts which shall be
----
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. Receipts may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The Receipts
shall be substantially in the form set forth in Exhibit A to the Deposit
---------
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in the Deposit Agreement or required by law.
Receipts shall be (i) dated, (ii) signed by the manual or facsimile signature of
a duly authorized signatory of the Depositary, (iii) countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the Delivery of such Receipt by the Depositary. The Receipts
shall bear a CUSIP number that is different from any CUSIP number that was, is
or may be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not Receipts issued hereunder.
10
(b) Legends. The Receipts may be endorsed with or have incorporated in
-------
the text thereof such legends or recitals not inconsistent with the provisions
of the Deposit Agreement (i) as may be necessary to enable the Depositary to
perform its obligations hereunder, (ii) as may be required to comply with any
applicable laws or regulations, or with the rules and regulations of any
securities exchange or market upon which ADSs may be traded, listed or quoted,
or to conform with any recognized usage with respect thereto, (iii) as may be
necessary to indicate any special limitations or restrictions to which any
particular Receipts or ADSs are subject by reason of the date of issuance of the
Deposited Securities or otherwise, or (iv) as may be required by any book-entry
system in which the ADSs are held.
(c) Title. Subject to the limitations contained herein and in the
-----
Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary may deem and treat the Holder of a Receipt (that
is, the person in whose name a Receipt is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. The Depositary shall
have no obligation nor be subject to any liability under this Deposit Agreement
or any Receipt to any holder of a Receipt or any Beneficial Owner unless such
holder is the Holder of such Receipt registered on the books of the Depositary
or, in the case of a Beneficial Owner, such Beneficial Owner or the Beneficial
Owner's representative is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
------------------
acceptance of the American Depositary Shares into DTC. A single ADR in the form
11
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co.") and will
provide that it represents the aggregate amount of ADSs from time to time
indicated in the records of the Depositary as being issued hereunder and that
the aggregate amount of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. As such, the nominee for DTC
will be the only "Holder" of the ADR evidencing all ADSs held through DTC.
Citibank, N.A. (or such other entity as is appointed by DTC) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
Section 2.3 Deposit with Custodian. Subject to the terms and
----------------------
conditions of this Deposit Agreement and applicable law, Shares or evidence of
rights to receive Shares (other than Restricted Securities) may be deposited by
any person (including the Depositary in its individual capacity but subject,
however, in the case of the Company or any Affiliate of the Company, to
12
Section 5.7 hereof) at any time, whether or not the transfer books of the
Company or the Share Registrar, if any, are closed, by Delivery of the Shares to
the Custodian.
Every deposit of shares shall be accompanied by the following: (A) (i)
in the case of Shares represented by certificates issued in registered form,
appropriate instruments of transfer or endorsement, in a form satisfactory to
the Custodian, (ii) in the case of Shares represented by certificates in bearer
form, the requisite appurtenant dividend sheet, or (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer to
the Custodian, (B) such certifications and payments (including, without
limitation, the Depositary's fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person(s) stated in
such order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in The Netherlands, and (E)
if the Depositary so requires, (i) an agreement, assignment or instrument
reasonably satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
reasonably satisfactory to the Depositary or the Custodian and (ii)
13
if the Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares for any and all purposes until the Shares
so deposited are registered in the name of the Depositary, the Custodian or any
nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.12) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of The Netherlands
and any necessary approval has been granted by any governmental body in The
Netherlands, if any, which is then performing the function of the regulator of
currency exchange. The Depositary may issue Receipts against evidence of rights
to receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
----------------------------------------------------
Depositary shall instruct the Custodian upon each Delivery of certificates
14
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped (if and
when required), to the Share Registrar for transfer and registration of the
Shares (as soon as transfer and registration can be accomplished and at the
expense of the person for whom the deposit is made) in the name of the
Depositary, the Custodian or a nominee of either. Deposited Securities shall be
held by the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee in each case on behalf of the Holders and Beneficial
Owners, at such reasonable place or places as the Depositary or the Custodian
shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Articles of Incorporation of the Company.
The Depositary will comply with reasonable written instructions of the Company
that the Depositary shall not accept for deposit hereunder any Shares identified
in such instructions at such times and under such circumstances as may
reasonably be specified in such instructions in order to facilitate the
Company's compliance with the securities laws in the United States.
Section 2.5 Execution and Delivery of Receipts. The Depositary has
----------------------------------
made arrangements with the Custodian to confirm to the Depositary, as promptly
as practicable (i) that a deposit of Shares has been made pursuant to Section
2.3 hereof, (ii) that such Deposited Securities have been recorded in the name
of the Depositary, the Custodian or a nominee of either on the shareholders'
15
register maintained by or on behalf of the Company by the Share Registrar if
registered Shares have been deposited or if deposit is made by book-entry
transfer, confirmation of such transfer in the books of NECIGEF, (iii) that all
required documents have been received, and (iv) the person(s) to whom or upon
whose order American Depositary Shares are deliverable in respect thereof and
the number of American Depositary Shares to be so delivered thereby. Such
notification may be made by letter sent by first class airmail postage prepaid,
cable, telex, SWIFT message or, at the risk and expense of the person making the
deposit, by facsimile or other means of electronic transmission. Upon receiving
such notice from the Custodian, the Depositary, subject to the terms and
conditions of this Deposit Agreement and applicable law, shall, as promptly as
practicable, issue the American Depositary Shares representing the Shares so
deposited to or upon the order of the person(s) named in the notice delivered to
the Depositary and shall execute and deliver at its Principal Office Receipt(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of American Depositary Shares to which such person(s) are
entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing American Depositary Shares and
executing and delivering such Receipt(s) (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the Receipt(s). The Depositary shall, as promptly as practicable, only issue
American Depositary Shares in whole numbers and deliver American Depositary
Receipts evidencing whole numbers of American Depositary Shares. Nothing herein
shall prohibit any Pre-Release Transaction upon the terms set forth in this
Deposit Agreement.
16
Section 2.6 Transfer, Combination and Split-up of Receipts.
----------------------------------------------
(a) Transfer. The Registrar shall register the transfer of Receipts
--------
(and of the ADSs represented thereby) on the books maintained for such purpose
and the Depositary shall cancel such Receipts and execute new Receipts
evidencing the same aggregate number of ADSs as those evidenced by the Receipts
canceled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
the Receipts have 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) the surrendered Receipts have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities
industry practice), (iii) the surrendered Receipts have been duly stamped (if
required by the laws of the State of New York or of the United States), and (iv)
all applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each
case, to the terms and conditions of the applicable Receipts, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof
(b) Combination & Split Up. The Registrar shall register the split-up
----------------------
or combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall cancel such Receipts and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the Receipts canceled by the
Depositary, shall cause the Registrar to countersign such new Receipts and shall
17
Deliver such new Receipts to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) the Receipts have 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 thereof, and (ii) 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 and Exhibit B hereto) have been paid, subject,
however, in each care, to the terms and conditions of the applicable Receipts,
of the Deposit Agreement and of applicable law, in each case, as in effect at
the time thereof.
(c) Co-Transfer Agents. The Depositary may, upon consultation with the
------------------
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and . split-ups of Receipts at designated transfer
offices on behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to such
Receipts (but only to the same extent that the Depositary would be entitled to
such evidence under this Deposit Agreement) and will be entitled to protection
and indemnity to the same extent as the Depositary. Such co-transfer agents may
be removed and substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.6 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of this Deposit Agreement. If so requested in writing by
the Company, the Depositary shall provide to the Company a copy of such notice
provided by such co-transfer agent.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.
--------------------------------------------------------
The Holder of ADSs shall be entitled to Delivery as promptly as practicable (at
18
the Custodian's designated office) of the Deposited Securities at the time
represented by the ADS(s) upon satisfaction of each of the following conditions:
(i) the Holder (or a duly authorized attorney of the Holder) has duly Delivered
ADSs to the Depositary at its Principal Office (and if applicable, the Receipts
evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, the Receipts
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are 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 reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of the Receipts,, evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Articles of Association and 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
Receipts 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 as promptly as
practicable at the Custodian's designated office the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
19
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 the Receipts evidencing the ADSs so canceled, of the
Articles of Association of the Company, of applicable laws and of 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 ADSs representing less
than one Share. In the case of the Delivery of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADS(s)s so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and reasonable expenses incurred by,
the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any Receipt 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. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
20
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.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc, of
--------------------------------------------------------
Receipts'; Suspension of Delivery, Transfer, etc.
------------------------------------------------
(a) Additional Requirements. As a condition precedent to the execution
-----------------------
and delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or the
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Shares or presenter of ADSs or of a
Receipt of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn) and payment of any applicable fees and charges of the Depositary
as provided in Section 5.9 and Exhibit B hereof, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof and (iii) compliance with (A)
any laws or governmental regulations relating to the execution and delivery of
Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of the applicable Receipt, this
Deposit Agreement and applicable law.
21
(b) Additional Limitations. The issuance of ADSs against deposits of
----------------------
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the Share
Registrar are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of the Company's Articles of Association or of any
applicable law, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of this Deposit Agreement or the applicable Receipt(s) or, under any
provision of, or governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject, in all cases, to
Section 7.8 hereof
(c) Regulatory Restrictions. Notwithstanding any provision of this
-----------------------
Deposit Agreement or any Receipt to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
22
Section 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
------------------
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
----------------------------------------------------
Maintenance of Records. All Receipts surrendered to the Depositary shall be
----------------------
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled after holding such canceled Receipts for the period, if any, required
by any applicable law or regulation, provided the Depositary maintains a record
of all destroyed Receipts. Any ADSs held in book-entry form (L,, through
accounts at DTC) shall be deemed canceled when the Depositary causes the number
of ADSs evidenced by the Balance Certificate to be reduced by the number of ADSs
surrendered (without the need to physically destroy the Balance Certificate).
23
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
------------------------
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall, as promptly as practicable, (a) give notice
thereof to Holders of Partial Entitlement ADSs and give Holders of Partial
Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for
Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c) take
such actions as are necessary to remove the distinctions between (i) the Partial
Entitlement ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs
and ADSs on the other. Holders and Beneficial Owners of Partial Entitlement ADSs
shall only be entitled to the entitlements of Partial Entitlement Shares.
Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled only to
the entitlements of Full Entitlement Shares. All provisions and conditions of
this Deposit Agreement shall apply to Partial Entitlement ADRs and ADSs to the
same extent as Full Entitlement ADRs and ADSs, except as contemplated by this
Section 2.11. The Depositary is authorized to take any and all other actions as
may be necessary (including, without limitation, making the necessary notations
24
on Receipts) to give effect to the terms of this Section 2.11. The Company
agrees to give timely written notice to the Depositary if any Shares issued or
to be issued are Partial Entitlement Shares and shall assist the Depositary with
the establishment of procedures enabling the identification of Partial
Entitlement Shares upon Delivery to the Custodian.
Section 2.12 Restricted ADSs. The Company may from time to time request
---------------
that the Depositary establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Shares in the form of ADSs issued
under the terms hereof and to benefit from the services provided by the
Depositary hereunder (such Shares, "Restricted Shares"). Upon receipt of a
written request from the Company (at least 30 days in advance of the proposed
deposit of Restricted Securities) to accept Restricted Shares for deposit
hereunder and at the expense of the Company, the Depositary agrees to establish
procedures permitting the deposit of such Restricted Shares and the issuance of
ADSs representing such deposited Restricted Shares (such ADSs, the "Restricted
ADSs," and the ADRs evidencing such Restricted ADSs, the "Restricted ADRs"). The
Company shall assist the Depositary in the establishment of such procedures and
agrees that it shall take all steps necessary and satisfactory to the Depositary
to insure that the establishment of such procedures does not violate the
provisions of the Securities Act or any other applicable laws. The depositors of
such Restricted Shares and the holders of the Restricted ADSs may be required
prior to the deposit of such Restricted Shares or the transfer of the Restricted
ADRs evidencing such Restricted ADSs or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
25
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances in which the
Restricted ADRs may be transferred, and the specific circumstances in which the
Restricted Shares evidenced by such Restricted ADSs may be withdrawn from the
depositary receipts facility established hereby. In the event that the
Depositary shall be requested to accept Restricted Shares hereunder, (i) the
Depositary shall cause the Custodian to hold Restricted Shares deposited
hereunder separate and distinct from all other Shares accepted for deposit
hereunder, and (ii) the Restricted ADSs issued hereunder and representing such
deposited Restricted Shares shall be kept separate and distinct from all other
ADSs issued hereunder, by means of separate CUSIP numbering and legending (if
necessary). If the Restricted Shares accepted for deposit hereunder shall become
unrestricted, (a) any distinctions and separations between the newly
unrestricted Shares accepted for deposit hereunder, on the one hand, and all
other Shares accepted for deposit hereunder, on the other, shall be eliminated,
and (b) any distinctions and separation (including, but not limited to any
separate CUSIP numbering or legending) between the newly unrestricted ADSs
issued hereunder, on the one hand, and all other ADSs issued hereunder, on the
other, shall be eliminated. The Restricted Shares and the Restricted ADSs shall
not be eligible for Pre-Release Transactions described in Section 5. 10. In the
event that the Restricted Shares and Restricted ADSs become unrestricted, they
shall be eligible for such Pre-Release Transactions. The Restricted ADSs shall
not be eligible for inclusion in any book-entry settlement system, including,
without limitation, DTC, and shall not in any way be fungible with the ADSs
issued under the terms hereof that are not Restricted ADSs. In the event that
the Restricted Shares become unrestricted, the ADSs representing such Shares
26
shall also become unrestricted, and shall be eligible for inclusion in any
book-entry settlement system to the same extent as any other ADSs issued
hereunder, and such ADSs shall be fully fungible with any other ADSs issued
hereunder. The Restricted ADRs evidencing such Restricted ADSs shall be
transferable only by the Holder thereof upon delivery to the Depositary of (i)
all documentation otherwise contemplated by this Deposit Agreement and (ii) an
opinion of counsel satisfactory to the Depositary setting forth, inter alia the
conditions upon which the Restricted ADR presented is, and the Restricted ADSs
evidenced thereby are, transferable by the Holder thereof under applicable
securities laws and the transfer restrictions contained in the legend set forth
on the Restricted ADR presented for transfer. In the event that the Restricted
ADRs issued hereunder shall become unrestricted, such ADRs shall be transferable
upon the same terms as any other ADRs issued hereunder.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
------------------------------------------
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
27
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration on the books of the Company or of the appointed
agent of the Company for the registration and transfer of Shares) as the
Depositary or the Custodian may reasonably deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations hereunder. The Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof or, to the extent not limited by the terms of Section
7.8 hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation and withdrawal. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
28
Section 3.2 Liability for Taxes and Other Charges. If any tax or other
-------------------------------------
governmental charge shall become payable by the Custodian or the Depositary with
respect to any ADR or any Deposited Securities or American Depositary Shares,
such tax or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of such
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner remaining liable for
any deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is- received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
---------------------------------------------------
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do and (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
29
mortgage or adverse claim, and (except as contemplated by Section 2.12) are not,
and the American Depositary Shares issuable upon such deposit will not be,
Restricted Securities and the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
------------------------------------
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to applicable law, the
rules and requirements of any stock exchange on which the Shares are, or will
be, registered, traded or listed or the Articles of Association of the Company,
which are made to provide information, inter alia, as to the capacity in which
such Holder or Beneficial Owner owns American Depositary Shares (and Shares as
the case may be) and regarding the identity of any other person(s) interested in
such American Depositary Shares and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company, and at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
30
Section 3.5 Ownership Restrictions. Notwithstanding any other provision
----------------------
in this Deposit Agreement or any Receipt, the Company may restrict transfers of
the Shares where such transfer might result in ownership of Shares exceeding
limits imposed by applicable law or the Articles of Association of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of the American Depositary Shares where such transfer may result in the total
number of Shares represented by the American Depositary Shares owned by a single
Holder or Beneficial Owner to exceed any such limits. The Company may, in its
sole discretion but subject to applicable law, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of American -
Depositary Shares, the removal or limitation of voting rights or mandatory sale
or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the American Depositary Shares held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Association of the Company.
Holders and Beneficial Owners acknowledge that, under The Netherlands Act on the
Disclosure of Holdings in Listing Companies, as in effect as of the date hereof,
shareholders (including Holders and Beneficial Owners of ADSs) must promptly
notify the Company and The Netherlands Securities Investment Board if their
holding reaches, exceeds or falls below 5%, 10%, 25%, 50% or 66-2/3% of the
capital interest and/or voting rights in the Company and agree to comply with
such notification requirements.
31
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
------------------
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Shares, rights, securities or other entitlements under the terms
hereof, the Depositary will (i) promptly convert or cause to be converted such
cash dividend, distribution or proceeds into Dollars (on the terms described in
Section 4.8) (ii) establish the ADS Record Date upon the terms described in
Section 4.9, and (iii) distribute promptly the amount thus received (net of (a)
the applicable fees and charges of and reasonable expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled - thereto as of the
ADS Record Date in proportion to the number of American Depositary Shares held
as of the ADS Record Date. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent, and any balance not so distributed shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon written request. The Depositary
32
will forward to the Company or its agent such information from its records as
the Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies to obtain benefits under the
applicable tax treaties for the Holders or Beneficial Owners. The Depositary or
the Company may file such reports to obtain such benefits for the Holders and
Beneficial Owners.
Section 4.2 Distribution in Shares. If any distribution upon any
----------------------
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, as promptly as
practicable and subject to Section 5.9 hereof, distribute to the Holders as of
the ADS Record Date in proportion to the number of American Depositary Shares
held as of the ADS Record Date, additional American Depositary Shares, which
represent in the aggregate the number of Shares received as such dividend, or
free distribution, subject to the other terms of this Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
reasonable expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional American Depositary Shares are not so distributed, each American
Depositary Share issued and outstanding after the ADS Record Date shall, to the
extent permissible by law, thenceforth also represent rights and interests in
the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number of
Shares or American Depositary Shares, as the case may be, represented by the
33
aggregate of such fractions and distribute the net proceeds upon the terms
described in Section 4.1; provided, however, that no distribution to Holders
pursuant to this Section 4.2 shall be unreasonably delayed by any action of the
Depositary or any of its agents. In the event that the Depositary determines
that any distribution in property (including Shares) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, or, if
the Company, in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in - such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of such (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms described in Section 4.1.
The Depositary shall hold and/or distribute any unsold balance of such property
in accordance with the provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the
----------------------------------------
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall give notice thereof
to the Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
34
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in The
Netherlands in respect of the Shares for which no election is made, either (X)
cash upon the terms described in Section 4.1 or (Y) additional ADSs representing
such additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs. The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed dividend (X) in
cash, the dividend shall be distributed upon the terms described in Section 4.1,
or (Y) in ADSs, the dividend shall be distributed upon the terms described in
Section 4.2. Nothing herein shall obligate the Depositary to make available to
Holders a method to receive the elective dividend in Shares (rather than ADSs).
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
--------------------------------------------------
(a) Distribution to ADS Holders. Whenever the Company intends to
---------------------------
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
35
least 60 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the Holders.
The Depositary shall make such rights available to Holders only if (i) the
Company shall have requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied or if the Company requests that the
rights not be made available to Holders of ADSs, the Depositary shall proceed
with the sale of the rights as contemplated in Section 4.4(b) below. In the
event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9) and,
after consultation with the Company, establish procedures to distribute rights
to purchase additional ADSs (by means of warrants or otherwise) and to enable
the Holders to exercise such rights (upon payment of the subscription price and
of the applicable (a) fees and charges of, and reasonable expenses incurred by,
the Depositary and (b) taxes). The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not request the Depositary
--------------
to make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
36
documentation within the terms of Section 5.7 or reasonably determines it is not
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 reasonably determine whether it is lawful and 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 reasonably deem practical. The
Company shall assist the Depositary to the extent necessary to determine such
legality and practicability. The Depositary shall, upon such sale, convert and
distribute as promptly as practicable the proceeds of such sale (net of
applicable (a) fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
---------------
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials provided by the Company and forwarded to the
Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4,
if registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
37
rights to the Holders unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect.
Because the laws of The Netherlands presently do not contemplate the issuance of
rights in negotiable form and the possibility of such issuance is unlikely, a
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly. In the event that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary
reasonably deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights or to endeavor to have any such registration
statement declared effective.
38
Section 4.5 Distributions Other Than Cash Shares or Rights to
--------------------------------------------------
Purchase Shares.
---------------
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall, as promptly as
practicable, distribute the property so received to the Holders of record, as of
the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may reasonably deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and reasonable expenses incurred by,
the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
39
may reasonably deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary reasonably determines that all or a
portion of such distribution is not practicable, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may reasonably deem practicable and shall (i)
cause the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute, as promptly as practicable, the proceeds of such conversion received
by the Depositary (net of applicable (a) fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances; provided, however, that no
distribution to the Holders pursuant to this Section 4.5 shall be unreasonably
delayed by any action of the Depositary or any of its agents.
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form. Subject to the terms of this Article IV, distributions in respect
of Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
40
coupons, talons or certificates, as the case may be, in connection with any
such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right
----------
of redemption in respect of any of the Deposited Securities, the Company shall
give notice thereof to the Depositary at least 60 days prior to the intended
date of redemption which notice shall set forth the
particulars of the proposed redemption. Upon receipt of such (i) notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have reasonably
determined that such proposed redemption is practicable, the Depositary shall
mail by first class airmail postage prepaid to each Holder a notice setting
forth the intended exercise by the Company of the redemption rights and any
other particulars set forth in the Company's notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company, as promptly
as practicable, the Deposited Securities in respect of which redemption rights
are being exercised against payment of the applicable redemption price. Upon
receipt of confirmation from the Custodian that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall, as promptly as practicable, convert, transfer, and distribute
the proceeds (net of applicable (a) fees and charges of, and the reasonable
expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel
ADRs upon delivery of such ADSs by Holders thereof and the terms set forth in
Sections 4.1 and 6.2 hereof. If less than all outstanding Deposited Securities
are redeemed, the ADSs to be retired will be selected by lot or on a pro rata
basis, as may be reasonably determined by the Depositary. The redemption price
per ADS shall be the per share amount received by the Depositary upon the
redemption of the Deposited Securities represented by American Depositary Shares
(subject to the terms of Section 4.8 hereof and the applicable fees and charges
41
of, and expenses incurred by, the Depositary, and taxes) multiplied by the
number of Deposited Securities represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or
------------------------------
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which pursuant to applicable law can, in the reasonable judgment of the
Depositary, at such time be converted on a practicable basis, by sale or in any
other manner that it may determine in accordance with applicable law, into
Dollars transferable to the United States and distributable to the Holders
entitled thereto, the Depositary shall, 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 shall distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any reasonable expenses incurred on behalf of the Holders in
complying with currency exchange control or other governmental requirements) in
accordance with the terms of the applicable sections of this Deposit Agreement.
If the Depositary shall have distributed warrants or other instruments that
entitle the holders thereof to such Dollars, the Depositary shall distribute
such Dollars to the holders of such warrants and/or instruments upon surrender
thereof for cancellation, in either case without liability for interest thereon.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Holders on account of any application
of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof and such approval or license is obtainable on a
42
reasonable basis, the Depositary may, as promptly as practicable, file such
application for approval or license with such government or agency thereof In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its reasonable
judgment the conversion of any Foreign Currency, in whole or in part, and the
transfer and distribution of proceeds of such conversion received by the
Depositary is not practical or lawful, or if any approval or license of any
governmental authority or agency thereof that is required for such conversion,
transfer and distribution is denied or, in the reasonable judgment of the
Depositary, not obtainable at a reasonable cost or within a reasonable period,
the Depositary may, in its reasonable discretion, (i) make such conversion and
distribution in Dollars to the Holders for whom such conversion, transfer and
distribution is lawful and practicable, (ii) distribute the Foreign Currency (or
an appropriate document evidencing the right to receive such Foreign Currency)
to Holders for whom this is lawful and practicable or (iii) hold (or cause the
Custodian to hold) such Foreign Currency (without liability for interest
thereon) for the respective accounts of the Holders entitled to receive the
same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
-------------------------
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
43
Depositary shall fix a record date (the "ADS Record Date") for the determination
of the Holders of Receipts who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consent, to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. The
Depositary shall use its best efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in The Netherlands. Subject to applicable law and
the provisions of Section 4.1 through 4.8 and to the other terms and conditions
of this Deposit Agreement, only the Holders of Receipts at the close of business
in New York on such ADS Record Date shall be entitled to receive such
distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
Section 4. 10 Voting of Deposited Securities. As soon as practicable
------------------------------
after receipt of notice of any meeting at which, the holders of Shares are
entitled to vote, or of solicitation of consents or proxies from holders of
Shares or other Deposited Securities, the Depositary shall fix the ADS Record
Date in respect of such meeting or solicitation of consent or proxy. The
Depositary shall if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least 30 days prior to the date of
such vote or meeting), at the Company's expense and provided no U.S. legal
prohibitions exist, mail to Holders: (a) such notice of meeting or solicitation
of consent or proxy, (b) a statement that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
provisions of this Deposit Agreement, the Articles of Association of the
44
Company and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part and provided to the
Depositary in English by the Company), to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares,
and (c) a brief statement as to the manner in which such instructions may be
given. Voting instructions may be given, only in respect of a number of American
Depositary Shares representing an integral number of Shares or other Deposited
Securities. Upon the timely receipt from a Holder of American Depositary Shares
as of the ADS Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of this Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by such Holder's
American Depositary Shares in accordance with such instructions. Shares or other
Deposited Securities for which no specific voting instructions are received by
the Depositary from the Holder shall not be voted.
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 for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions or deemed instructions from
Holders. If voting instructions are received by the Depositary from any Holder
on or before the date established by the Depositary for the receipt of such
instructions, which are signed but without further indication as to specific
45
instructions, the Depositary will deem such Holder to have instructed the
Depositary to vote in favor of the items set forth in such instructions. Shares
or other Deposited Securities for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
The Depositary shall use its best efforts, if requested in writing by
the Company prior to the mailing to Holders of such meeting materials, to
deliver, at least two business days prior to the date of such meeting, to the
Company, to the attention of its Secretary, copies of all instructions received
from Holders in accordance with which the Depositary will vote, or cause to be
voted, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipts at such meeting. Delivery of instructions will be
made at the expense of the Company (unless otherwise agreed in writing by the
Company and the Depositary).
Notwithstanding anything else contained in this Deposit Agreement, 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 Shares or other
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Shares or other Deposited Securities and to deliver to the Depositary an opinion
of the Company's U.S. counsel addressing any actions requested to be taken if
requested by the Depositary.
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.
46
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
--------------------------------------
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. The Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of an opinion of counsel to the
Company satisfactory to the Depositary that such distributions are not in
violation of any applicable laws or regulations, execute and deliver additional
Receipts as in the case of a stock dividend on the Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts, in either
case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
47
reasonably deem proper and may allocate the net proceeds of such sales (net of
(a) fees and charges of, and reasonable 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 as promptly as
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not have any obligation to make the
determination of the lawfulness of making such distribution available to Holders
in general or to any Holder in particular, nor shall the Depositary have any
responsibility for any such determination made by any third party. The
Depositary shall not be responsible for (i) any foreign exchange exposure or
loss incurred in connection with such sale, or (ii) any liability to the
purchaser of such securities.
Section 4.12 Available Information. The Company is subject to the
---------------------
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N. W., Washington D.C.
20549 and at the Commission's New York City office located at Seven World Trade
Center, 13th Floor, New York, New York 10048.
Section 4.13 Reports. The Depositary shall make available for
-------
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The Depositary shall
48
also, upon the written request of the Company, mail to Holders copies of such
reports when furnished by the Company pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
---------------
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
--------
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may
reasonably deem necessary or proper to fulfill the Depositary's or the
Custodian's obligations under applicable law. The Holders and Beneficial Owners
shall indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each of
49
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit as
promptly as practicable to the Depositary information about such taxes or
governmental charges withheld or paid, and, if so requested, the tax receipt (or
other proof of payment to the applicable governmental authority) therefor, in
each case, in a form reasonably satisfactory to the Depositary, The Depositary
shall, to the extent required by U.S. law, report to Holders any taxes withheld
by it or the Custodian, and, if such information is provided to it by the
Company, any taxes withheld by the Company. The Depositary and the Custodian
shall not be required to provide the Holders with any evidence of the remittance
by the Company (or its agents) of any taxes withheld, or of the payment of taxes
by the Company, except to the extent the evidence is provided by the Company to
the Depositary. Neither the Depositary nor the Custodian shall be liable for the
failure by any Holder or Beneficial Owner to obtain the benefits of credits on
the basis non-U.S. tax paid against such Holder's or Beneficial Owner's income
tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of
50
the American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
---------------------------------------------------------
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of Receipts, the surrender
of Receipts for the purpose of withdrawal of Deposited Securities in accordance
with the provisions of this Deposit Agreement.
The Registrar shall keel books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Holders of such Receipts, provided that such inspection shall not be, to
the Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to this Deposit Agreement or the
Receipts.
The Company shall have the right to inspect at all reasonable times
transfer and registration records of the Depositary, make copies thereof and
require the Depositary, the Registrar and any co-transfer agents or
51
co-registrars to supply, at the expense of the Company, copies of such portions
of such records as the Company may reasonably request.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Section 7.8 hereof
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or may confer with the
Company to appoint a Registrar or one or more co-registrars for registration of
Receipts and transfers, combinations and split-ups, and to countersign such
Receipts in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary.
Section 5.2 Exoneration. Neither the Depositary nor the Company nor any
-----------
of their respective officers, directors, employees, agents or affiliates shall
be obligated to do or perform any act which is inconsistent with the provisions
of this Deposit Agreement or incur any liability (1) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
The Netherlands or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
52
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
----------------
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
53
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
54
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section 5.4 Depositary. The Depositary may at any time resign as
----------
Depositary hereunder by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof); or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
55
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.08 and 5.09), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
-------------
Citibank N.A. - Amsterdam Branch as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Securities and no other Custodian has previously been
appointed hereunder, the Depositary shall, after consultation with the Company,
promptly appoint a substitute custodian that is organized under the laws of The
Netherlands. The Depositary shall require such resigning or discharged Custodian
to deliver the Deposited Securities held by it, together with all such records
maintained by it as Custodian with respect to such Deposited Securities as the
Depositary may request, to the Custodian designated by the Depositary. Whenever
the Depositary determines, in its discretion, that it is appropriate to do so,
56
it may appoint an additional custodian with respect to any Deposited Securities,
or discharge the Custodian with respect to any Deposited Securities and appoint
a substitute custodian, which shall thereafter be Custodian hereunder with
respect to the Deposited Securities. Immediately upon any such change, the
Depositary shall give notice in writing of the name and address of such newly-
appointed Custodian to all Holders of Receipts, each other Custodian and the
Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which
-------------------
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
57
or proposed provisions of the Articles of Association of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) an English
language version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual and
semi-annual reports prepared in accordance with the applicable requirements of
the Commission. The Depositary shall arrange at the request of the Company and
at the Company's expense, for the mailing of copies thereof to all Holders or
make such notices, reports and other communications available to all Holders on
a basis similar to that for holders of Shares or other Deposited Securities or
on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Company has delivered to the Depositary and the Custodian a copy of the
Company's Articles of Association along with the provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any Affiliate
of the Company in connection with such Shares, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein. The Depositary may
rely upon such copy for all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
58
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
---------------------------------------
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or not
application of such transaction to Holders and Beneficial Owners (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act and (b) an opinion of
counsel in The Netherlands stating that (1) making the transaction available to
Holders and Beneficial Owners does not violate the laws or regulations of The
Netherlands and (2) all requisite regulatory consents and approvals have been
obtained in The Netherlands. If the filing of a registration statement is
required, the Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably satisfactory to
59
it that such registration statement has been declared effective. If, being
advised by counsel, the Company determines that a transaction is required to be
registered under the Securities Act, the Company will either (i) register such
transaction to the extent necessary, (ii) alter the terms of the transaction to
avoid the registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a
sale of Shares or other Deposited Securities previously issued and reacquired by
the Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
---------------
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
60
by (i) the Depositary under the terms hereof due to the negligence or bad faith
of the Depositary and its directors, officers, employees, agents and Affiliates
or (ii) the Custodian under the terms hereof due to the negligence or bad faith
of the Custodian, provided, however, that the Depositary shall have no duty to
indemnify for the acts or omissions of any Custodian hereunder unless the
Custodian is a branch or subsidiary of Citibank, N.A.
The Company agrees to indemnify the Depositary, the Custodian and any
of their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability, tax,
charge or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or as a result of any
offering documents in respect thereof or (c) out of acts performed or omitted,
including, but not limited to, any delivery by the Depositary on behalf of the
Company of information regarding the Company supplied to the Depositary by the
Company in connection with this Deposit Agreement, the Receipts, the American
Depositary Shares, the Shares, or any Deposited Securities, in any such case (i)
by the Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent such loss, liability,
tax, charge or expense is due to the negligence or bad faith of any of them, or
(ii) by the Company or any of its directors, officers, employees, agents and
Affiliates.
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
61
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders,
------------------------------
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6. 1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees
and charges and to reimburse the Depositary for such reasonable out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
62
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
reasonable expenses as provided above shall survive the termination of this
Deposit Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms and
------------------------
provisions of this Section 5. 10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
63
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, United States
government securities or such other collateral as the Depositary deems
appropriate, in light of the security and liquidity of the collateral, (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 reasonably 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 reasonably 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) as security
for the performance of the Applicant's obligations to the Depositary in
connection with a Pre-Release Transaction, including the Applicant's obligation
to deliver Shares or ADSs upon termination of a Pre-Release Transaction (and
64
shall not, for the avoidance of doubt, constitute Deposited Securities
hereunder).
Section 5.11 Restricted Securities Owners. The Company agrees to
----------------------------
advise in writing each of the persons or entities who, to the knowledge of the
Company, holds Restricted Securities that such Restricted Securities are
ineligible for deposit hereunder and, to the extent practicable, shall require
each of such persons to represent in writing that such person will not deposit
Restricted Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at any time,
--------------------
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a)
65
the American Depositary Shares to be registered on Form F-6 under the Securities
Act or (b) the American Depositary Share(s) to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share(s), to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement and the Receipt as amended and supplemented thereby. In no event shall
any amendment or supplement impair the right of the Holder to surrender such
Receipt and receive therefor the Deposited Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment or supplement of the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Receipts at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and the Receipts in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
-----------
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 90
days shall have expired after (i) the Depositary shall have delivered to the
66
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of a Receipt will, upon
surrender of such Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of Receipts referred
to in Section 2.7 and subject to the conditions and restrictions therein set
forth, and upon payment of any applicable taxes or governmental charges, be
entitled to Delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of this Deposit Agreement, the Registrar
thereafter shall discontinue the registration of transfers of Receipts, and the
Depositary shall suspend the distribution of dividends to the-Holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.7, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
67
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
with respect to the Receipts, the Deposited Securities and the American
Depositary Shares, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of they
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder or Beneficial Owner during business hours.
68
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
----------------------------
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates front engaging in such transactions or establishing or
maintaining such relationships, (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
------------
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties: Binding Effect.
--------------------------------------------------------
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein. Holders and beneficial owners of depositary shares
issued under the Original Deposit Agreement agree, by continuing to hold such
69
depositary shares or to have such beneficial interest, to be parties to this
Deposit Agreement, and are bound by all of the terms and conditions hereof
Section 7.5 Notices. Any and all notices to be given to the Company
-------
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Akzo Nobel N. V., Velperweg 76, 680058 Arnhem, The Netherlands,
Attention: Company Secretary, or to any other address which the Company may
specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A., 111 Wall Street, New York, New York 10043,' U.S.A. Attention:
ADR Department, or to any other address which the Depositary may specify in
writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Europlaza, Hoogoordreef 54B, 1101 B.E. Amsterdam Z.O., The Netherlands or to any
other address which the Custodian may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
70
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
------------------------------
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited Securities and
the obligations and duties of the Company in respect of the holders of Shares
and other Deposited Securities, as such, shall be governed by the laws of The
Netherlands (or, if applicable, such other laws as may govern the Deposited
Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City
of New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
71
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers AZO Nobel Inc. (the "Agent") now
at 7 Livingstone Avenue, Dobbs Ferry, New York 10522 as its authorized agent to
receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
arising out of or relating to the Shares Deposited Securities, the American
Depositary Shares, the Receipts or this Deposit Agreement brought against the
Company in any federal or state court as described in the preceding sentence or
in the next paragraph of this Section 7.6. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new
agent in New York on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any such suit, action or proceeding against
the Company, by service by mail of a copy thereof upon the Agent (whether or not
the appointment of such Agent shall for any reason prove to be ineffective or
such Agent shall fail to accept or acknowledge such service), with a copy mailed
to the Company by registered or certified air mail, postage prepaid, to its
address provided in Section 7.5 hereof The Company agrees that the failure of
the Agent to give any notice of such service to it shall not impair or affect in
any way the validity of such service or any judgment rendered in any action or
proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
any such suit, action or proceeding against (a) the Company, (b) the Depositary
72
in its capacity as Depositary under this Deposit Agreement or (c) against both
the Company and the Depositary, in any such case, in any state or federal court
of the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited Securities.
73
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4
----------
hereof, this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
------------------------------------
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 Titles. All references in this Deposit Agreement to
------
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of this Deposit
Agreement unless expressly provided otherwise. The words "this Deposit
Agreement', "herein", "hereof', "hereby", "hereunder", and words of similar
import refer to the Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
74
IN WITNESS WHEREOF, AKZO NOBEL N.V. and CITIBANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof, or upon acquisition of any beneficial interest therein.
Holders and beneficial owners of depositary shares issued under the terns of the
Original Deposit Agreement shall automatically become parties hereto by
continuing to hold the depositary shares evidenced by receipts issued thereunder
after the effective date hereof.
AKZO NOBEL N. V.
By: /s/ F.W. Frohlich
----------------------------------
Name: F.W. Frohlich
Title: Deputy Chairman/CFO
By: /s/ F.H. Hensel
-----------------------------------
Name: F.H. Hensel
Title: Senior Vice President Finance
CITIBANK, N.A.
By:
------------------------------------
Name:
Title:
75
IN WITNESS WHEREOF, AKZO NOBEL N.V. and CITIBANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof, or upon acquisition of any beneficial interest therein.
Holders and beneficial owners of depositary shares issued under the terns of the
Original Deposit Agreement shall automatically become parties hereto by
continuing to hold the depositary shares evidenced by receipts issued thereunder
after the effective date hereof.
AKZO NOBEL N. V.
By:
-----------------------------------
Name: F.W. Frohlich
Title: Deputy Chairman/CFO
By:
-----------------------------------
Name: F-H. Hensel
Title: Senior Vice President Finance
CITIBANK, N.A.
By: /s/ Susan A. McFarland
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Name: Susan A. McFarland
Title: Vice President
EXHIBIT A
[FORM OF RECE]PT]
Number CUSIP NUMBER: [_________]
American Depositary Shares
(each American Depositary Share
representing one (1) fully paid
Ordinary Share, nominal value
NLG 5 per Share
AMERICAN DEPOSITARY RECEIPT FOR
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
AKZO NOBEL N. V.
(Incorporated under the laws of The Netherlands)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ___________ is the owner of
_______________________________American Depositary Shares (hereinafter "ADS"),
representing deposited ordinary shares, nominal value NLG 5 per share, including
evidence of rights to receive such ordinary shares (the "Shares") of Akzo Nobel
N. V., a corporation incorporated under the laws of The Netherlands (the
"Company"). As of the date of the Deposit Agreement (as hereinafter defined),
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each ADS represents 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 Branch (the "Custodian"). The ratio of
American Depositary Shares to Shares is subject to amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 111 Wall Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one
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of an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Amended and Restated
Deposit Agreement, dated as of October 15, 1999 (as amended from time to time,
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Holders and Beneficial Owners from time to time of American Depositary Shares
("ADSs") evidenced by Receipts issued thereunder, each of whom by accepting an
ADS (or an interest therein) agrees to become a party thereto and becomes bound
by all the terms and conditions thereof. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed
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provisions of the Deposit Agreement and the Articles of Association, 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.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
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The Holder of this Receipt (and of the ADSs evidenced hereby) shall be entitled
to Delivery as promptly as practicable (at the Custodian's designated office) of
the Deposited Securities at the time represented by the ADS(s) evidenced hereby
upon satisfaction of each of the 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 Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt 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 reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case,
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to the terms and conditions of this Receipt, 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
Receipt 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 as promptly as
practicable 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 Receipt, of the Articles of Association of the
Company, of applicable laws and of the rules of 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 ADSs representing less
than one Share. In the case of surrender of ADSs 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 Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and reasonable expenses incurred by, the Depositary and
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(b) taxes withheld) to the person surrendering the ADSs. Notwithstanding
anything else contained in this Receipt or the Deposit Agreement, the Depositary
may make delivery at the Principal Office of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of stock
or rights, which may at the time be held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder surrendering ADSs represented by this
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held 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 Receipts. The Registrar
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shall register the transfer of this Receipt (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
cancel this Receipt and execute new Receipts evidencing the same aggregate
number of ADSs as those evidenced by this Receipt when canceled, shall cause the
Registrar to countersign such new Receipts, and shall Deliver such new Receipts
to or upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this Receipt 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
Receipt has been properly endorsed or is accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard securities
industry practice), (iii) this Receipt has been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all applicable
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fees and charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B to the Deposit Agreement) have been paid, in each case, however,
subject to the terms and conditions of this Receipt, 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
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the number
of ADSs evidenced by this Receipt (when canceled), shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the -order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this Receipt 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 and
Exhibit B to the Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this Receipt, 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
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precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of ADSs or of a Receipt of a sum sufficient to
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reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary, a Registrar or the
Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of the Company's Articles of Association
or of any applicable law, any government or governmental body or commission or
any securities exchange upon which the Receipts or Share are listed, or under
any provision of the Deposit Agreement or this Receipt, or under any provision
of, or governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (24) hereof Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders are entitled to surrender outstanding ADSs
to withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company
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or the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(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
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other provision of the Deposit Agreement or this Receipt, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to the law of The Netherlands, the rules and
requirements of any stock exchange on which Shares or ADSs are or will be
registered, traded or listed, or the Articles of Association of the Company,
which are made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares, as the case may be) and regarding the
identity of any other persons then or previously interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
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Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association of the Company. The Company
may also restrict, in such manner as it deems appropriate, transfers of ADSs
where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
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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. Holders and Beneficial
Owners acknowledge that, under The Netherlands Act on the Disclosure of Holdings
in Listing Companies, as in effect as of the date hereof, shareholders
(including Holders and Beneficial Owners of ADSs) must promptly notify the
Company and The Netherlands Securities Investment Board if their holding
reaches, exceeds or falls below 5%, 10%, 25%, 50% or 662/3% of the capital
interest and/or voting rights in the Company and agree to comply with such
notification requirements.
(7) Liability of Holder for Taxes and Other Charges. If any tax or
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other governmental charge shall become payable. with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or Depositary may withhold or deduct from any distributions
made in respect of such Deposited Securities and may sell for the account of the
Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article(24) hereof) the withdrawal of Deposited Securities until payment in
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until payment in full of such tax, charge, penalty or interest is received.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian and any of their agents, employees and Affiliates for,
and hold each of then harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
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depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do and (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and (except as contemplated in Section 2.12 of the
Deposit Agreement) are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities and the Share presented for deposit have not been stripped
of any rights or entitlements. Such representations and warranties shall survive
the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. If any such representations or
warranties are false in any way, the Company and Depositary shall be authorized,
at the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
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presenting Shares for deposit and any Holder and any Beneficial Owner may be
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required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties and to provide such other information or documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (24) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the deliver of any Deposited Securities until such proof or
other information is filed or such certificates are executed, or such
representations are made or such information and documentation are provided, in
each case to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the
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following fees for the services performed under the terms of the Deposit
Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or portion thereof) so issued under the terms of the
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Deposit Agreement (excluding issuances pursuant to
paragraph (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so
surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00
per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
rights and other entitlements). No fee shall be payable
for the distribution of cash dividends or the distribution
of stock dividends or other free distributions of Shares
or other Deposited Securities;
(iv) to any Holder of ADRs, a fee and in excess of $5.00 per
100 ADSs (or portion thereof) issued pursuant to tock
dividends or other free stock distributions or upon the
exercise of rights. No fee shall be payable or the
distribution of ADSs pursuant to stock dividends or other
free distributions of shares if such fees are prohibited
by the exchange upon which ADSs are listed.
(v) to any person presenting an ADR Certificate for transfer,
a fee not in excess of $1.50 per ADR Certificate presented
for transfer.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
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(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
ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and reasonable 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 reasonable 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
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and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of
the Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and
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every successive Holder of this Receipt by accepting or holding the same
consents and agrees, that title to this Receipt (and to each ADS evidenced
hereby) shall be transferable on the same terms as a certificated security under
the laws of the State of New York, provided that the Receipt has been properly
endorsed or is accompanied by proper instruments of transfer. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name. this Receipt is registered on the
books of the Depositary) as the absolute owner thereof for all purposes. The
Depositary shall have no obligation nor be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the American Depositary
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Shares represented hereby) shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless this Receipt has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
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
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Receipts. Receipts bearing the manual or facsimile signature of a duly-
authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such Receipt
by the Depositary.
(13) Available Information Reports; Inspection of Transfer Books. The
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Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549 and at the Commission's New York City office located at
Seven World Trade Center, 13th Floor, New York, New York 10048. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
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The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof Dated:
CITIBANK, N.A. CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By:
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Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
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Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will (i) promptly convert or cause
to be converted such dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) establish the ADS Record Date upon the
terms described in Section 4.9, and (iii) will distribute promptly the amount
thus received (net of (a) applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company to the
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relevant governmental authority.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall or cause such
Shares to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or their nominees. 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, as promptly as practicable, 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 reasonable expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed,
each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net (a) of the applicable fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms set forth in the Deposit Agreement.
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
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opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) taxes and
fees and (b) charges of, and reasonable expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
record date according to paragraph (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
dividend shall be distributed as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to
A-19
make available to the Holder hereof a method to receive the elective
distribution in Shares (rather than ADSs). There can be no assurance that the
Holder hereof will be given the opportunity to receive elective distributions on
the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares 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 requested that such rights be made
available to Holders, (ii) the Depositary shall have received the documentation
contemplated in the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described in the Deposit
Agreement) and, after consultation with the Company, establish procedures to
distribute rights to purchase additional ADSs (by means of warrants or
otherwise) and to enable the Holders to exercise the rights (upon payment of the
subscription price and of the applicable (a) fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes). Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise rights to subscribe for Shares (rather than ADSs). If (i)
the Company does not request the Depositary to make the rights available to
Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or reasonably determines it is not practicable to make the
rights available to Holders, or (iii) any rights made available are not
A-20
exercised and appear to be about to lapse, the Depositary shall reasonably
determine whether it is lawful and practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may reasonably deem practicable. The Depositary shall,
upon such sale, convert and distribute as promptly as practicable the proceeds
of such sale (net of applicable fees and charges of and reasonable expenses
incurred by, the Depositary and taxes) upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale or exercise, or (iii) the content of any materials provided by
the Company and forwarded to the ADR Holders on behalf of the Company in
connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders unless and until a registration statement
under the Securities Act (or other applicable law) covering such offering is in
effect. In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
A-21
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.
Because the law of The Netherlands presently does not contemplate the issuance
of rights in negotiable form and the possibility of such issuance is unlikely,
a liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights or to endeavor to have any such
registration statement declared effective.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable.
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Upon satisfaction of such conditions, the Depositary shall, as promptly as
practicable, distribute the property so received to the Holders of record, as of
the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may reasonably deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and reasonable expenses incurred by,
the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
may reasonably 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 reasonably deem practicable and shall (i)
cause the proceeds of such sale, if any, to be converted into Dollars and (ii7
distribute, as promptly as practicable, the proceeds of such conversion received
by the Depositary (net of (a) applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that
----------
it intends to exercise its right of redemption in respect of any of the
Deposited Securities, and a satisfactory opinion of counsel, and upon its
reasonable determination that such proposed redemption is practicable, the
Depositary shall mail by first class airmail postage prepaid to each Holder a
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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, as
promptly as practicable, convert, transfer, distribute the proceeds (net of
applicable (a) fees and charges of, and reasonable expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be reasonably determined by
the Depositary. The redemption price per ADS shall be the dollar equivalent of
per share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
the Deposit Agreement and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Units or
Deposited Securities represented by each ADS redeemed.
(16) Fixing of 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, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to
A-24
to give or withhold such consent, or to receive such notice or solicitation or
to otherwise take action, or to exercise the rights of Holders with respect to
such changed number of Shares represented by each ADS. Subject to applicable law
and the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, mail to Holders: (a) such notice of meeting or solicitation of consent or
proxy, (b) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the provisions of
this 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 and provided to the Depositary in English
by the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given. Voting
A-25
instructions may be given, only in respect of a number of American Depositary
Shares representing an integral number of Shares or other Deposited Securities.
Upon the timely receipt from a Holder of American Depositary Shares as of the
ADS Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of this Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by such Holder's
American Depositary Shares in accordance with such instructions. Shares or
other Deposited Securities for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
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 for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions or deemed instructions from
Holders. If voting instructions are received by the Depositary from any Holder
on or before the date established by the Depositary for the receipt of such
instructions, which are signed but without further indication as to specific
instructions, the Depositary will deem such Holder to have instructed the
Depositary to vote in favor of the items set forth in such instructions. Shares
or other Deposited Securities for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
A-26
The Depositary shall use its best efforts, if requested in writing by
the Company prior to the mailing to Holders of such meeting materials, to
deliver, at least two business days prior to the date of such meeting, to the
Company, to the attention of its Secretary, copies of all instructions received
from Holders in accordance with which the Depositary will vote, or cause to be
voted, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipts at such meeting. Delivery of instructions will be
made at the expense of the Company (unless otherwise agreed in writing by the
Company and the Depositary).
Notwithstanding anything else contained in this Deposit Agreement, 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 Shares or other
Deposited Securities if the takerfg of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Shares or other Deposited Securities and to deliver to the Depositary an opinion
of the Company's U.S. counsel addressing any actions requested to be taken if
requested by the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in
--------------------------------------
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
A-27
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of Receipt contained
in this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or private
sale, at such place or places and upon such terms as it may reasonably deem
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes)
for the account of the Holders otherwise entitled to such securities and
distribute the net proceeds so allocated as promptly as practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The
Depositary shall not have any obligation to make the determination of the
lawfulness or feasibility of making such distinction available to Holders in
general or to any Holder in particular, nor shall the Depositary have any
responsibility for any such determination made by any third party. The
A-28
Depositary shall not be responsible for (i) any foreign exchange exposure or
loss incurred in connection with such sale, or (ii) any liability to the
purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company nor any of
-----------
their respective officers, 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
Receipt, by reason of any provision of any present or future law or regulation
of the United States, The Netherlands or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future of the Articles of Association of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made
A-29
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of ADS or (v) for any consequential
or punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no
----------------
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith. The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of this Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth
A-30
of the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of this Deposit
Agreement or for the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary under
--------------------
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided ip
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (1) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
A-31
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(22) Amendment/Supplement. This Receipt and any provisions of the
--------------------
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement
A-32
so becomes effective shall be deemed, by continuing to hold such ADS(s), to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and this Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 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 in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
A-33
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
A-34
account, without liability for interest for the pro rata benefit of the Holders
whose Receipts have not theretofore been surrendered. After making such sale,
the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, the Deposited Securities
and the ADSs, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
------------------------------------
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary Limitations. Subject to the
--------------------------------------------
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in 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
A-35
the Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) accompanied by or subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (z) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all
times fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate, in light of the security and
liquidity of the collateral, (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
A-36
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant) as security for the performance of the Applicant's obligations
for the Depositary in connection with a Pre-Release Transaction, including the
Applicant's obligation to deliver Shares or ADSs upon termination of a
Pre-Release Transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
A-37
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________________ whose taxpayer
identification number is _______________________________ and whose address
including postal zip code is ______________ the within Receipt and all rights
thereunder, hereby irrevocably constituting and appointing
_________________________________ attorney-in-fact to transfer said Receipt on
the books of the Depositary with full power of substitution in the premises.
Dated: Name:
-------------------------------
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with
the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person executing
the endorsement must give his/her full
title in such capacity and proper
evidence of authority to act in such
capacity, if not on file with the
Depositary, must be forwarded with this
Receipt.
All endorsements or assignments of
Receipts must be guaranteed by a member
of a Medallion Signature Program approved
by the Securities Transfer Association,
Inc.
A-38
SIGNATURE GUARANTEED
Legends
[The Receipts issued in respect of Partial Entitlement
American Depositary Shares shall bear the following
legend on the face of the Receipt: "This Receipt
evidences American Depositary Shares representing
partial entitlement Ordinary Shares, nominal value NLG 5,
of Akzo Nobel N.V. and as such do not entitle the
holders thereof to the same per-share entitlement as other
Ordinary Shares (which are "full entitlement" Ordinary
Shares) issued and outstanding at such time. The American
Depositary Shares represented by this Receipt shall entitle
holders to distributions and entitlements identical to
other American Depositary Shares when the Ordinary Shares
represented by such American Depositary Shares become "full
entitlement" Ordinary Shares.]
A-39
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the
persons depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
--------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) Issuance of ADSs upon Up to $5.00 per Person for whom
deposit of Shares 100 ADSs (or deposits are made or
(excluding issuances fraction thereof) ADSs.
as a issued result
of distributions
described in
paragraph (4) below).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per Person surrendering
Securities, property 100 ADSs (or ADSs or making
and cash against fraction thereof) withdrawal.
surrender of ADSs. surrendered.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(3) Distribution of (a) No fee. Person to whom
cash dividends or (b) distribution is made.
ADSs pursuant to
stock dividends (or
other free
distributions of
Shares or other
Deposited Securities)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(4) Distribution of cash Up to $2.00 per
proceeds (i.e., upon 100 ADSs (or
sale of rights and fraction thereof)
other entitlements) held.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(5) Distribution of ADSs Up to $5.00 per Person to whom
pursuant to (i) stock 100 ADSs (or distribution is made.
dividends or other fraction thereof)
free stock prohibited by the
distributions, or issued, unless
(ii) exercise of exchange upon
rights. which the ADSs
are listed.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(6) Transfer of ADRs. $1.50 per Person presenting
Certificate certificate for
presented. transfer.
--------------------------------------------------------------------------------
B-1
H. Charges
-------
Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such 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 Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and reasonable 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 reasonable expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
B-2
(d) Opinion of counsel to the Depositary
Frettra M. Miller
Vice President and
Senior Counsel
Tel212/816-5675
Fax212/816-2689
frettra.m.miller@citigroup.com
February 11, 2004
Citibank, N.A.
ADR Department
111 Wall Street
New York, N.Y. 10043
Re: American Depositary Receipts evidencing American Depositary Shares
representing one (1) Ordinary Share, nominal value Eur 2, of Akzo Nobel N.V.
Ladies and Gentlemen:
I refer to the Registration Statement to be filed on Form F-6 (the
"Registration Statement") by the legal entity created by the Deposit Agreement
(as defined herein) for which you are acting as the depositary, for the purpose
of registering under the Securities Act of 1933, as amended, 100,000,000
American Depositary Shares ("ADSs") evidenced by American Depositary Receipts
("ADRs") to be issued under the Amended and Restated Deposit Agreement, dated
as of October 15, 1999 by and among Citibank, N.A., as depositary, Akzo Nobel
N.V., a company organized and existing under the laws of The Netherlands (the
"Company"), and the Holders and Beneficial Owners from time to time of ADSs
issued thereunder, a copy of which is being filed as Exhibit (a) to the
Registration Statement (the "Deposit Agreement"). Each ADS will (subject to
amendments in accordance with the terms of the Deposit Agreement) represent one
(1) ordinary share, nominal value Eur 2, or evidence of the right to receive
such shares, of the Company. Capitalized terms used herein without definition
shall have the meaning assigned thereto in the Deposit Agreement.
Assuming that the Deposit Agreement will have been duly executed and delivered
at the time of their issuance or has been duly executed and delivered by the
Company, I am of the opinion that the ADSs covered by the Registration
Statement, when issued in accordance with the terms of the Deposit Agreement,
will be legally issued and will entitle the Holders thereof to the rights
specified in the Deposit Agreement and the ADRs.
I hereby consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement.
I am a member of the Bar of the State of New York. This opinion is limited to
the laws of the State of New York and the Federal laws of the United States.
Very truly yours,
/s/ Frettra M. Miller
(e) Rule 466 Certification
Certification under Rule 466
----------------------------
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a Registration Statement on Form F-6 (File
No. 333-10984), which the Commission declared effective, with terms of
deposit identical to the terms of this Registration Statement.
(2) That its ability to designate the date and time of effectiveness under
Rule 466 has not been suspended.
Citibank, N.A., as depositary
By: /s/ Frettra M. Miller
----------------------------------
Name: Frettra M. Miller
Title: Vice President
Dated: February 11, 2004