VNU N.V.
AND
THE BANK OF NEW YORK,
as Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of ____________, 2004
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of ____________________,
2004 among VNU N.V., incorporated under the laws of The Netherlands (herein
called the Issuer), THE BANK OF NEW YORK, a New York banking corporation (herein
called the Depositary), and all Owners (as hereinafter defined) and holders from
time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer and ▇▇▇▇▇▇ Guaranty Trust Company of New York entered
into a deposit agreement dated as of April 15, 1991, as amended on ___________,
1996 (the "Old Deposit Agreement"); and
WHEREAS, the Issuer has removed ▇▇ ▇▇▇▇▇▇ Chase Bank (formerly known as
▇▇▇▇▇▇ Guaranty Trust Company of New York) as depositary under the Old Deposit
Agreement pursuant to Section 5.04 thereof and has appointed the Depositary as
successor depositary under the Old Deposit Agreement and the Depositary has
accepted that appointment; and
WHEREAS, the Issuer and the Depositary now wish to amend and restate the
Old Deposit Agreement pursuant to Section 6.01 thereof in the form of this
Amended and Restated Deposit Agreement; and
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Amended and Restated Deposit Agreement, for the deposit of Shares (as
hereinafter defined) of the Issuer from time to time with the Depositary or with
the Custodian (as hereinafter defined) as agent of the Depositary for the
purposes set forth in this Amended and Restated Deposit Agreement, for the
creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Amended and Restated Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto that the Old Deposit Agreement is hereby amended and
restated as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article" or
"Articles" or to a "Section" or "Sections", such references shall mean an
article or articles or a section or sections of this Deposit Agreement, unless
otherwise required by the context.
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SECTION 1.3 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.4 Custodian.
The term "Custodian" shall mean the Amsterdam office of ING Securities
Services, as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.5 Delivery; Deposit; Surrender; Transfer; Withdraw.
The terms "deliver", "deposit", "surrender", "transfer" or "withdraw", when
used (i) with respect to Shares: (a) in the case of book-entry Shares, shall
refer to an entry or entries in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities,
or (b) in the case of physical Share certificates, to the physical delivery,
deposit, withdrawal or transfer of certificates representing the Shares and (ii)
with respect to American Depositary Shares evidenced by Receipts, (a) in the
case of American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records maintained by (1) the Depositary, (2) The
Depository Trust Company ("DTC") or its nominee, or (3) institutions that have
accounts with DTC, as applicable, or (b) otherwise, shall refer to the physical
delivery, deposit, surrender, transfer or withdrawal of such American Depositary
Shares evidenced by Receipts.
SECTION 1.6 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
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SECTION 1.7 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and any successor as depositary hereunder. The term "Corporate Trust
Office", when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
SECTION 1.8 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.5.
SECTION 1.9 Dollars.
--------
The terms "$" or "Dollars" shall refer to United States dollars.
SECTION 1.10 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.11 Issuer.
The term "Issuer" shall mean VNU N.V., incorporated under the laws of The
Netherlands, and its successors.
SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
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SECTION 1.14 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed by
the Depositary to register Receipts and transfers of Receipts as herein
provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are (i) acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction or chain of transactions not involving any public offering or (ii)
subject to resale limitations under Regulation D under the Securities Act or
both, or (iii) held by an officer, director (or persons performing similar
functions) or other affiliate of the Issuer, or which would require registration
under the Securities Act in connection with the offer and sale thereof in the
United States, or (iv) subject to other restrictions on sale or deposit under
the laws of the United States or The Netherlands, or under a shareholder
agreement or the Articles of Association and By-laws of the Issuer.
SECTION 1.16 Securities Act.
The term "Securities Act" shall mean the United States Securities Act of
1933, as from time to time amended.
SECTION 1.17 Shares.
The term "Shares" shall mean common shares in registered form of the
Issuer, heretofore validly issued and outstanding and fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares or interim
certificates representing such Shares.
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ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless such Receipt shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at the time of signature a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary,
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notwithstanding any notice to the contrary, may treat the Owner thereof as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit. No Share shall be accepted for deposit unless
accompanied by evidence reasonably satisfactory to the Depositary (which may be
an opinion of counsel) that any necessary approval has been granted by any
governmental body in The Netherlands which is then performing the function of
the regulation of currency exchange, if any. If required by the Depositary,
Shares presented for deposit at any time, whether or not the transfer books of
the Issuer or the Foreign Registrar, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for
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Shares to be deposited, together with the other instruments herein specified,
for the purpose of forwarding such Share certificates to the Custodian for
deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine. The Depositary agrees to instruct each
Custodian to place all Shares accepted for deposit under this Deposit Agreement
into an account or accounts separate from any other Shares of the Issuer that
may be held by such Custodian.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer that any
Deposited Securities have been recorded upon the books of the Issuer or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to, or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered
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in the name or names and evidencing any authorized number of American Depositary
Shares requested by such person or persons, but only upon payment to the
Depositary of the fees and expenses of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.9, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the purpose
of effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
-----------------------------------------------
Upon surrender at the Corporate Trust Office of the Depositary of a Receipt
for the purpose of withdrawal of the Deposited Securities represented by the
9
American Depositary Shares evidenced by such Receipt, and upon payment of the
fee of the Depositary for the surrender of Receipts as provided in Section 5.9
and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) Shares in the name of such Owner or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the number of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
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At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates, if applicable, and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any reasonable regulations the Depositary may
establish consistent with the provisions of this Deposit Agreement, including,
without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or for any other reason, subject to the provisions of Section 7.7
hereof.
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Notwithstanding any other provision of this Deposit Agreement or the Receipts,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
not be suspended subject only to (i) temporary delays caused by closing the
transfer books of the Depositary or the Issuer or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act, unless a registration statement is in effect as to such
Shares. The Depositary will comply with reasonable written instructions of the
Issuer not to accept for deposit under this Deposit Agreement any Shares
identified in such instructions and under such circumstances as may be
reasonably specified in such instructions in order to facilitate the Issuer's
compliance with United States securities laws.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
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SECTION 2.9 Pre-Release of Receipts.
Unless requested in writing by the Issuer to cease doing so, the
Depositary, notwithstanding Section 2.3 hereof, may execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts or Shares are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial rights,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for the benefit of the Owners, and (iii)
will not take any action with respect to such Shares or Receipts, as the case
may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be), other than in satisfaction of such Pre-Release,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to disregard such limit from time to time as
it deems reasonably appropriate, and may, with the prior written consent of the
Issuer, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit
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Agreement, the collateral referred to in clause (b) above shall be held by the
Depositary as security for the performance of the Pre-Releasee's obligations to
the Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain or cause its agents to maintain records
of all Receipts surrendered and Deposited Securities withdrawn under Section
2.5, substitute Receipts delivered under Section 2.7 and cancelled or destroyed
Receipts under Section 2.8, in keeping with procedures ordinarily followed by
stock transfer agents located in the City of New York or as required by the laws
or regulations governing the Depositary.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary or the Issuer, upon the
Issuer's reasonable written request to the Depositary, may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. Upon the reasonable written request
of the Issuer,
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the Depositary shall provide the Issuer, as promptly as practicable, with copies
of any such proof of citizenship or residence, or exchange control approval that
it receives, unless such disclosure is prohibited by law.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner of such Receipt to the Depositary. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor,
if applicable, are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
SECTION 3.4 Compliance with Information Requests.
The Issuer and the Depositary may from time to time request Owners or
former Owners to provide information as to the capacity in which they hold or
held
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Receipts (or Shares, as the case may be) and regarding the identity of any other
persons then or previously interested in such Receipts and the nature of such
interest and various other matters. Each such Owner agrees to provide any such
information reasonably requested by the Issuer pursuant to this Section and such
agreement shall survive any disposition of their interest in Deposited
Securities. The Depositary agrees to use reasonable efforts to comply with
written instructions received from the Issuer requesting that the Depositary
forward, at the sole expense of the Issuer, any such requests to the Owners and
to forward to the Issuer any such responses to such requests received by the
Depositary.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, as promptly as
practicable, subject to the provisions of Section 4.5, convert such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Section 5.9 hereof, if
applicable) to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Issuer or its agent will remit to the appropriate
governmental agency in The Netherlands all amounts withheld and owing to such
agency. The Depositary will forward to the Issuer or its agent such information
from its records as the Issuer may reasonably request to enable the Issuer or
its agent to file necessary reports with governmental agencies, and the
16
Depositary or the Issuer or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities or property
received by it to be distributed to the Owners entitled thereto, after deduction
or upon payment of any fees and expenses of the Depositary or any applicable
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may reasonably deem equitable
and practicable for accomplishing such distribution; provided, however, that if
in the reasonable opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act in order to
be distributed to Owners or holders) the Depositary deems such distribution not
to be feasible, the Depositary may adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees and expenses of the Depositary as provided in Section 5.9) shall be
distributed by the Depositary to the Owners entitled thereto as in the case of a
distribution received in cash, pursuant to Section 4.1 of this Deposit
Agreement, provided that any unsold balance of such securities or property shall
be distributed by the Depositary to the Owners entitled thereto, if such
distribution is feasible without withholding for or on account of any taxes or
other governmental charges and without registration under the Securities Act, in
accordance with such equitable and practicable methods as the Depositary may
have adopted; provided, further, that no distribution to Owners pursuant to this
Section shall be unreasonably delayed by any action of the Depositary. To the
extent such property, or the net proceeds thereof, is not effectively
distributed to Owners as provided herein, the same
17
shall constitute Deposited Securities and each Receipt shall thereafter also
represent its proportionate interest in such property or net proceeds.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the Issuer
shall so request, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of fees of the Depositary as provided in Section
5.9. In lieu of delivering Receipts for fractional American Depositary Shares in
any such case, the Depositary shall sell the amount of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.1. If additional Receipts
are not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION 4.4 Rights.
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In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary
18
determines in its reasonable discretion, after consultation with the Issuer,
that it is lawful and feasible to make such rights available to all Owners or to
certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Issuer to the Depositary that (a) the Issuer has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Issuer has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be 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.
19
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.9 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create, or be construed to create, any obligation on the
part of the Issuer to file a registration statement with respect to such rights
or underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under the Securities Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Issuer upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.5 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,
20
property or rights, and if at the time of the receipt thereof the foreign
currency so received can in the judgment of the Depositary be converted on a
reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed, as
promptly as practicable, to the Owners entitled thereto or, if the Depositary
shall have distributed any warrants or other instruments which entitle the
holders thereof to such Dollars, then to the holders of such warrants and/or
instruments upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its
21
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date (which record date shall be as close as practicable to
the date corresponding to the record date fixed by the Issuer, if any, in
respect of the Shares or other Deposited Securities); (a) for the determination
of the Owners who shall be (i) entitled to receive such dividend, distribution
or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners at the close of
business on such record date shall be entitled, as the case may be, to receive
the amount distributable by the Depositary with respect to such dividend or
other distribution or such rights or the net proceeds of sale thereof in
proportion to the number of American Depositary Shares held by them respectively
and to give voting instructions and to act in respect of any other such matter.
The Depositary shall notify the applicable U.S. exchange of any action to fix a
record date for the American Depositary Shares in the customary manner as
applicable.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in
22
the sole discretion of the Depositary, which shall contain (a) such information
as is contained in such notice of meeting, and (b) a statement that the Owners
as of the close of business on a specified record date will be entitled, subject
to any applicable provision of Dutch law and of the Articles of Association of
the Issuer, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated to the Issuer.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, (the "Instruction
Date") the Depositary shall endeavor, in so far as practicable, to vote or cause
to be voted the amount of Shares or other Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the date
established by the Depositary for such purpose, the Depositary shall deem such
Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Issuer with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Issuer to vote such Deposited Securities, provided, that no such instruction
shall be given with respect to any matter as to which the Issuer informs the
Depositary (and the Issuer agrees to provide such information as promptly as
practicable in writing) that (x) the Issuer does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to
23
the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
Owners of American Depositary Shares will not be entitled to attend
shareholders' meetings, but will be entitled to instruct the Depositary in the
manner set forth above as to the manner of voting the Shares represented by
American Depositary Shares at any shareholders' meeting.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, if any, the new Deposited
Securities so received in exchange or conversion, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, and shall if the Issuer shall so request, execute and deliver additional
Receipts as in the case of a distribution in Shares, or call for the surrender
of outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
SECTION 4.9 Reports.
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The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Issuer pursuant to Section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Issuer shall be furnished in English.
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SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall furnish to the
Issuer a list, as of a recent date, of the names, addresses and holdings of
American Depositary Shares by all persons in whose names Receipts are registered
on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Issuer or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it (after notice to the Issuer when closure is
outside the
25
ordinary course of business) in connection with the performance of its duties
hereunder or at the reasonable written request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or, after consultation with the Issuer to the extent
practicable, appoint a Registrar or one or more co-registrars for registry of
such Receipts in accordance with any requirements of such exchange or exchanges.
The Issuer may, upon its reasonable request to the Depositary, inspect
transfer and registration records of the Depositary relating to Receipts, take
copies thereof and require the Depositary and any co-registrar to supply copies
of such portions of such records as the Issuer may reasonably request.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the Issuer.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or of the Netherlands or any other
country, or of any governmental or regulatory authority or stock exchange or any
other applicable law, or by reason of any provision, present or future, of the
Articles of Association or By-laws of the Issuer, or by reason of any provision
of any securities issued or distributed by the Issuer, or any offering or
distribution thereof, or by reason of any act of God or war or terrorism or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of this Deposit Agreement or the Deposited Securities it is provided shall be
done or performed; nor shall the Depositary or the Issuer or any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or holder of any Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of
26
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer.
------------------------------------------------------------
The Issuer assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or holders of Receipts, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder of any Receipt
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer 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
reasonable opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
Neither the Depositary nor the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel,
27
accountants, any person presenting Shares for deposit, any Owner or any other
person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
------------------------------------------
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Issuer, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by 60 days prior
written notice of such removal, which shall become effective upon the later to
occur of (i) the 60th day after delivery of the notice to the Depositary or (ii)
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer 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
28
the Issuer an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Issuer shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Owners of all outstanding Receipts and such other
related documents in accordance with reasonable industry standards. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice and upon giving notice to the Issuer, appoint a substitute
custodian or custodians, each of which shall thereafter be a Custodian
hereunder. Whenever the Depositary in its discretion determines that it is in
the best interest of the Owners to do so, it may appoint a substitute or
additional custodian or custodians, which shall thereafter be one of the
Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
29
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the translation into English, to the extent
required pursuant to any regulations of the Commission applicable, and the
prompt transmittal by the Issuer to the Depositary and the Custodian of such
notices and any other reports and communications which are made generally
available by the Issuer to holders of its Shares. If requested in writing by the
Issuer, the Depositary will arrange for the mailing, at the Issuer's expense, of
copies of such notices, reports and communications to all Owners. The Issuer
will timely provide the Depositary with the quantity of such notices, reports,
and communications, as requested by the Depositary from time to time, in order
for the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities, (each a
"Distribution") the Issuer will promptly notify the Depositary of such
Distribution and if requested by the Depositary,
30
the Issuer will promptly furnish to the Depositary a written opinion from U.S.
counsel for the Issuer, which counsel shall be satisfactory to the Depositary,
stating whether or not the Distribution requires a Registration Statement under
the Securities Act to be in effect prior to making such Distribution available
to Owners entitled thereto. If in the opinion of such counsel a Registration
Statement is required, an opinion given under the preceding sentence shall state
whether or not there is a Registration Statement in effect which will cover such
Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act or unless the
offer and sale of such Shares or proposed transaction are exempt from
registration under the Securities Act.
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Issuer to file any
registration statement with respect to any proposed, transaction.
SECTION 5.8 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors, officers,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Issuer or any of its directors, employees, agents and
affiliates.
31
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provieed in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Issuer), as applicable, furnished in writing by the
Depositary or any Custodian and not materially changed or altered by the Issuer
expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Issuer, its directors, officers,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any person
indemnified hereby.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of a 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 under this
32
Section) and shall consult in good faith with the Indemnifying Person as to the
conduct of the defense of such action or claim, which shall be reasonable in the
circumstances. No Indemnified Person shall compromise or settle any action or
claim without the consent of the Indemnifying Person, which consent shall not be
unreasonably withheld.
SECTION 5.9 Charges of Depositary.
The Issuer agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Issuer or Foreign Registrar and applicable to transfers of Shares to or from the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.1 through 4.4
hereof, to the extent permitted by the rules of any securities exchange on which
the American
33
Depositary Shares may be listed for trading, (7) a fee for the distribution of
securities pursuant to Section 4.2, such fee being in an amount equal to the fee
for the execution and delivery of American Depositary Shares referred to above
which would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares)
but which securities are instead distributed by the Depositary to Owners, and
(8) any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 and shall be payable at the sole discretion of the
Depositary by billing such Owners for such charge or by deducting such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and
other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Issuer
requests that such papers be retained for a longer period or turned over to the
Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary a list
setting forth, to the actual knowledge of the Issuer, those persons or entities
who beneficially own Restricted Securities and the Issuer shall update that list
on a regular basis. The
34
Issuer agrees to advise in writing each of the persons or entities so listed
that such Restricted Securities are ineligible for deposit hereunder. The
Depositary may rely on such a list or update but shall not be liable for any
action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Issuer and
the Depositary without the consent of Owners and holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Issuer terminate
this Deposit Agreement by mailing notice of such termination to the Owners of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Issuer a written notice of its
election to resign and a successor depositary shall not have
35
been appointed and accepted its appointment as provided in Section 5.4. On and
after the date of termination, the Owner of a Receipt will, upon (a) surrender
of such Receipt at the Corporate Trust Office of the Depositary, (b) payment of
the fee of the Depositary for the surrender of Receipts referred to in Section
2.5, and (c) payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof, and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights and other property as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of six months from the date of termination, the Depositary may sell
the Deposited Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Issuer shall be discharged from all
36
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. 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 shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any holder or Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.3 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 Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
--------
Any and all notices to be given to the Issuer 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 VNU N.V., P.O. Box 2000 MA,
Haarlem, The
37
Netherlands, Attention: Company Secretary, facsimile: 011-31-23-546-3938, or any
other place to which the Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Issuer may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York.
SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Issuer and the Depositary each agrees that it will not exercise any rights it
has under this
38
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but not
limited to, 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.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Issuer hereby (i) irrevocably designates and appoints VNU Inc., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇., Attention: Chief Legal Officer, as
the Issuer's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Issuer in any such suit or
proceeding. The Issuer agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Issuer further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Issuer fails to continue such
designation and appointment in full force and effect, the Issuer hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Issuer at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
39
IN WITNESS WHEREOF, VNU N.V. and THE BANK OF NEW YORK have duly executed
this agreement as of the day and year first set forth above and all Owners shall
become parties hereto upon acceptance by them of Receipts issued in accordance
with the terms hereof.
VNU N.V.
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
---------------------------------------
Name:
Title:
40
Exhibit A to Deposit Agreement
No. ________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents one (1) deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES OF THE
PAR VALUE OF 0.20 EUROS EACH
OF
VNU N.V.
(INCORPORATED UNDER THE LAWS OF THE NETHERLANDS)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that , or registered assigns IS THE OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited common shares (herein called "Shares") of VNU N.V.,
incorporated under the laws of The Netherlands (herein called the "Company"). At
the date hereof, each American Depositary Share represents one (1) Share which
is either deposited or subject to deposit under the deposit agreement at the
Amsterdam office of ING Securities Services (herein called the "Custodian"). The
Depositary's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, and its principal executive office is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
1
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the amended and restated Deposit Agreement, dated as of ____________, 2004
(herein called the "Deposit Agreement"), by and among the Company, the
Depositary, and all Owners and holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and holders of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office in New York
City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) Shares in the name of the Owner hereof or as ordered
by him or by certificates properly endorsed or accompanied by proper instruments
of transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt to such Owner or as ordered by him. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
2
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any reasonable regulations the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Company are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of the Deposit
Agreement or this Receipt, or for any other reason, subject to Article (22)
hereof. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under the provisions of the Securities Act, unless a registration
statement is in effect as to such Shares. The Depositary will comply with
reasonable written instructions of the Company not to accept for deposit under
the Deposit Agreement any Shares identified in such instructions and under such
circumstances as may be reasonably specified in such instructions in order to
facilitate the Issuer's compliance with United States securities laws.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends
3
or other distributions or the proceeds of any such sale in payment of such tax
or other governmental charge and the Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor,
if applicable, are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary or the Company, upon the
Company's reasonable written request to the Depositary, may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. Upon the reasonable written request
of the Company, the Depositary shall provide the Company, as promptly as
practicable, with copies of any such proof of citizenship or residence, or
exchange control approval that it receives, unless such disclosure is prohibited
by law. No Share shall be accepted for deposit unless accompanied by evidence
reasonably satisfactory to the Depositary (which may be an opinion of counsel)
that any necessary approval has been granted by any governmental body in The
Netherlands which is then performing the function of the regulation of currency
exchange, if any.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a
4
distribution of Receipts pursuant to Section 4.3 of the Deposit Agreement), or
by Owners, as applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to or from the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals under the Deposit Agreement, (3) such cable, telex and
facsimile transmission expenses as are expressly provided in the Deposit
Agreement, (4) such expenses as are incurred by the Depositary in the conversion
of foreign currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the
surrender of Receipts pursuant to Section 2.5 or 6.2 of the Deposit Agreement,
(6) a fee of $.02 or less per American Depositary Share (or portion thereof) for
any cash distribution made pursuant to the Deposit Agreement, including, but not
limited to Sections 4.1 through 4.4 of the Deposit Agreement, to the extent
permitted by the rules of any securities exchange on which the American
Depositary Shares may be listed for trading, (7) a fee for the distribution of
securities pursuant to Section 4.2 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Owners, and (8) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.6 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Issuer and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Issuer to cease doing so, the
Depositary, notwithstanding Section 2.3 of the Deposit Agreement, may execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts,
5
as the case may be, that is inconsistent with the transfer of beneficial
ownership (including, without the consent of the Depositary, disposing of such
Shares or Receipts, as the case may be), other than in satisfaction of such
Pre-Release, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary determines, in good faith,
will provide substantially similar liquidity and security, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of Shares not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners
under the Deposit Agreement, the collateral referred to in clause (b) above
shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required
6
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act of 1934.
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, as promptly as
practicable, if at the time of receipt thereof any amounts received in a foreign
currency can in the judgment of the Depositary be converted on a reasonable
basis into United States dollars transferable to the United States, and subject
to the Deposit Agreement, convert such dividend or distribution into Dollars and
shall distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in the Deposit Agreement, if applicable) to the Owners of
Receipts entitled thereto, provided, however, that in the event that the Company
or the Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution in respect of any Deposited Securities
an amount on account of taxes, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed to the Owners of Receipts entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in any manner that the Depositary may reasonably deem
equitable and practicable for accomplishing such distribution; provided,
7
however, that if in the reasonable opinion of the Depositary such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto, or
if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.9 of the Deposit Agreement)
shall be distributed by the Depositary to the Owners of Receipts entitled
thereto as in the case of a distribution received in cash, pursuant to Section
4.1 of the Deposit Agreement, provided that any unsold balance of such
securities or property shall be distributed by the Depositary to the Owners
entitled thereto, if such distribution is feasible without withholding for or on
account of any taxes or other governmental charges and without registration
under the Securities Act, in accordance with such equitable and practicable
methods as the Depositary may have adopted; provided, further, that no
distribution to Owners pursuant to this Section shall be unreasonably delayed by
any action of the Depositary. To the extent such property, or the net proceeds
thereof, is not effectively distributed to Owners as provided herein, the same
shall constitute Deposited Securities and each Receipt shall thereafter also
represent its proportionate interest in such property or net proceeds.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as provided in Section 5.9 of the Deposit
Agreement. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions set forth in the Deposit
Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
8
13. 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, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed, as
promptly as practicable, to the Owners entitled thereto or, if the Depositary
shall have distributed any warrants or other instruments which entitle the
holders thereof to such Dollars, then to the holders of such warrants and/or
instruments upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
9
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its reasonable discretion, after
consultation with the Company, that it is lawful and feasible to make such
rights available to all Owners or to certain Owners but not to other Owners, the
Depositary may distribute, to any Owner to whom it determines the distribution
to be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article, such Receipts
shall be 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.
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.9 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
10
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the provisions of the Securities Act; provided, that nothing in
the Deposit Agreement shall create, or be construed to create, any obligation on
the part of the Company to file a registration statement with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If an Owner of Receipts requests distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Securities Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date (which record date shall be as close as practicable to
the date corresponding to the record date fixed by the Company, if any, in
respect of the Shares or other Deposited Securities): (a) for the determination
of the Owners of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement. The
Depositary shall notify the applicable U.S. exchange of any action to fix a
record date for the American Depositary Shares in the customary manner as
applicable.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners of Receipts as of the close
of business on a specified record date will be entitled, subject to any
applicable provision of Dutch law and of the Articles of Association of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed
11
given in accordance with the last sentence of this paragraph if no instruction
is received, to the Depositary to give a discretionary proxy to a person
designated to the Company. Upon the written request of an Owner of a Receipt on
such record date, received on or before the date established by the Depositary
for such purpose (the "Instruction Date"), the Depositary shall endeavor, in so
far as practicable to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
Owners of American Depositary Shares will not be entitled to attend
shareholders' meetings, but will be entitled to instruct the Depositary in the
manner set forth above a to the manner of voting the Shares represented by
American Depositary Shares at any shareholders' meeting.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
if any, the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a distribution in
Shares, or call for the surrender of
12
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or of the Netherlands or any other
country, or of any governmental or regulatory authority or stock exchange or any
other applicable law, or by reason of any provision, present or future, of the
Articles of Association or By-laws of the Company, or by reason of any provision
of any Securities issued or distributed by the Company, or any Offering or
distribution thereof or by reason of any act of God or war or terrorism or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company incur any liability to any
Owner or holder of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its reasonable opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or holder of a Receipt, or any
other person believed by it in good faith to be competent to give such advice or
information. The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection
13
with the issue out of which such potential liability arises the Depositary
performed its obligations without negligence or bad faith while it acted as
Depositary. The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provieed in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Issuer), as applicable, furnished in writing by the
Depositary or any Custodian and not materially changed or altered by the Issuer
expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 60 days prior written
notice of such removal, which shall become effective upon the later to occur of
the (i) 60th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever
14
the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts to do so, it may appoint substitute or additional
custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Company and
the Depositary without the consent of Owners and holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners of Receipts, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner of a Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the
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Deposit Agreement and any applicable taxes or governmental charges). At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it thereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary under Sections 5.8 and 5.9 of the Deposit
Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, 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.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Company hereby (i) irrevocably designates and appoints VNU Inc., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇., Attention: Chief Legal Officer, as
the Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Issuer in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
the Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
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24. COMPLIANCE WITH INFORMATION REQUESTS.
The Company and the Depositary may from time to time request Owners or
former Owners to provide information as to the capacity in which they hold or
held Receipts (or Shares, as the case may be) and regarding the identity of any
other persons then or previously interested in such Receipts and the nature of
such interest and various other matters. Each such Owner agrees to provide any
such information reasonably requested by the Company pursuant to the Deposit
Agreement and this Article and such agreement shall survive any disposition of
their interest in Deposited Securities. The Depositary agrees to use reasonable
efforts to comply with written instructions received from the Company requesting
that the Depositary forward, at the sole expense of the Company, any such
requests to the Owners and to forward to the Company any such responses to such
requests received by the Depositary.
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