KONINKLIJKE KPN N.V. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
KONINKLIJKE
KPN N.V.
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of December 30, 2005
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain Definitions | ||
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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2
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(d)
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Custodian
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2
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(e)
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Deliver,
execute, issue et al.
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2
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(f)
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Delivery
Order
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2
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(g)
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Deposited
Securities
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2
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(h)
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Direct
Registration System
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2
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(i)
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Holder
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2
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(j)
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Securities
Act of 1933
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2
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(k)
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Securities
Exchange Act of 1934
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2
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(l)
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Shares
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2
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(m)
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Transfer
Office
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2
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(n)
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Withdrawal
Order
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2
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Section
2.
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ADRs |
3
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Section
3.
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Deposit of Shares |
3
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| Section 4. | Issue of ADRs |
4
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Section
5.
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Distributions on Deposited Securities |
4
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Section
6.
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Withdrawal of Deposited Securities |
4
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Section
7.
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Substitution of ADRs |
4
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Section
8.
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Cancellation and Destruction of ADRs |
5
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Section
9.
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The Custodian |
5
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Section
10.
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Intentionally Omitted |
5
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Section
11.
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Lists of Holders. |
5
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Section
12.
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Depositary's Agents |
5
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Section
13.
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Successor Depositary |
5
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Section
14.
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Reports |
5
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Section
15.
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Additional Shares |
6
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Section
16.
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Indemnification |
6
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Section
17.
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Notices |
7
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Section
18.
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Miscellaneous |
7
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Section
19.
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Consent to Jurisdiction |
8
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Section
20.
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Amendment and Restatement of Old Deposit Agreement |
9
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TESTIMONIUM
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10
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SIGNATURES
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10
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i
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EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
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Issuance
of ADRs
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A-2
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(2)
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Withdrawal
of Deposited Securities
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A-2
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(3)
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Transfers
of ADRs
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A-3
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(4)
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Certain
Limitations
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A-3
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(5)
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Taxes
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A-4
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(6)
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Disclosure
of Interests
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A-4
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(7)
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Charges
of Depositary
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A-5
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(8)
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Available
Information
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A-6
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(9)
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Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM
OF REVERSE OF ADR
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A-7
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(10)
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Distributions
on Deposited Securities
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A-7
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(11)
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Record
Dates
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A-7
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(12)
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Voting
of Deposited Securities
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A-8
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(13)
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Changes
Affecting Deposited Securities
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A-9
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(14)
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Exoneration
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A-9
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(15)
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Resignation
and Removal of Depositary; the Custodian
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A-10
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(16)
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Amendment
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A-10
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(17)
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Termination
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A-11
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(18)
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Appointment
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A-11
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ii-
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of December 30, 2005 (the
"Deposit Agreement") among KONINKLIJKE KPN N.V. and its successors (the
"Company"),
JPMORGAN CHASE BANK, N.A., as depositary hereunder (the "Depositary"), and
all
holders from time to time of American Depositary Receipts issued hereunder
("ADRs") evidencing
American Depositary Shares ("ADSs") representing deposited Shares (defined
below). The
Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit
Agreement. All capitalized terms used herein have the meanings ascribed to
them
in Section
1
or elsewhere in this Deposit Agreement.
W
I T N E
S S E T H
WHEREAS,
the Company and Citibank, N.A. entered into a Deposit Agreement dated as
of
November 29, 1994 (the "Old Deposit Agreement") to provide for the deposit
of
Shares of the Company
with Citibank, N.A. or with the Custodian as agent of Citibank, N.A. for the
purposes set
forth
in such Old Deposit Agreement, for the creation of American depositary shares
representing
the Shares so deposited and for the execution and delivery of American
depositary receipts
("Old Receipts") evidencing the American depositary shares;
WHEREAS,
pursuant to the terms of Section 5.04 of the Old Deposit Agreement, the
Company
has removed Citibank, N.A. as depositary and has appointed JPMorgan Chase Bank,
N.A.,
as
successor depositary thereunder; and
WHEREAS,
the Company and JPMorgan Chase Bank, N.A., in its capacity as successor
depositary
under the Old Deposit Agreement, now wish to amend and restate the Old Deposit
Agreement
and the Old Receipts;
NOW
THEREFORE, in consideration of the premises, subject to Section 19, the parties
hereto
hereby amend and restate the Old Deposit Agreement and the Old Receipts in
their
entirety as
follows:
1. Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR (as hereinafter defined).
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs
(as
hereinafter defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded
on the Direct Registration System. References to "ADRs" shall include
certificated ADRs
and
Direct Registration ADRs, unless the context otherwise requires. The terms
and
conditions
set forth in the form of ADR are hereby incorporated by reference herein and
constitute a
part
hereof and the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive one Share and a pro rata share in any other Deposited
Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(e) The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and, when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(h) "Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the
Depositary pursuant to which the Depositary may record the ownership of ADRs
without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary
to the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall
include access to the Profile Modification System maintained by DTC which
provides for automated
transfer of ownership between DTC and the Depositary.
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"
means
the outstanding ordinary shares of the Company, and shall include
the rights to receive Shares specified in paragraph (1) of the form of
ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2
2. ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
manual
or
facsimile signature of a duly authorized officer of the Depositary. ADRs in
certificated form
bearing the facsimile signature of anyone who was at the time of execution
a
duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold
such
authority prior to the delivery of such ADRs.
(b) Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder. No additional fee shall be
charged for the
issuance of a certificated ADR pursuant to any such request.
(c) Holders
shall be bound by the
terms and conditions of this Deposit Agreement and of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3. Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian, as the case may be, may require the following in form satisfactory
to
it: (a) a written
order directing the Depositary to issue to, or upon the written order of, the
person or persons
designated in such order, a Direct Registration ADR or ADRs evidencing the
number of ADSs
representing such deposited Shares (a "Delivery Order"); (b) proper endorsements
or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the
Custodian or its nominee any distribution on or in respect of such deposited
Shares or indemnity
therefor; and (d) proxies entitling the Custodian to vote such deposited Shares.
As soon
as
practicable after the Custodian receives Deposited Securities pursuant to any
such deposit or
pursuant to paragraph (10) or (13) of the form of ADR, the Custodian shall
present such Deposited
Securities for registration of transfer into the name of the Custodian or its
nominee, to the
extent such registration is practicable, at the cost and expense of the person
making such deposit
(or for whose benefit such deposit is made) and shall obtain evidence
satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for the
account and to the order
of
the Depositary at such place or places and in such manner as the Depositary
shall determine.
Deposited Securities may be delivered by the Custodian to any person only under
the circumstances
expressly contemplated in this Deposit Agreement. To the extent that the
provisions
of or governing the Shares make delivery of certificates therefor impracticable,
Shares may
be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably
accept, including, without limitation, by causing them to be credited to an
account maintained
by the Custodian for such purpose with the Company or an accredited
intermediary, such as a bank, acting as a registrar for the Shares, together
with delivery of the documents, payments
and Delivery Order referred to herein to the Custodian or the Depositary.
3
4. Issue
of ADRs.
The
Depositary shall direct the Custodian that after any such deposit of
Shares,
the Custodian shall notify the Depositary of such deposit and of the information
contained in
any
related Delivery Order by letter, first class airmail postage prepaid, or,
at
the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving
such notice from the Custodian, the Depositary, subject to this Deposit
Agreement, shall properly
issue at the Transfer Office, to or upon the order of any person named in such
notice, an ADR
or
ADRs registered as requested and evidencing the aggregate ADSs to which such
person is
entitled.
5. Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
discretion that any distribution pursuant to paragraph (10) of the form of
ADR
is not practicable
with respect to any Holder, the Depositary may make such distribution as it
so
deems practicable,
including the distribution of foreign currency, securities or property (or
appropriate documents
evidencing the right to receive foreign currency, securities or property) or
the
retention thereof
as Deposited Securities with respect to such Holder's ADRs (without liability
on
the part of
the
Depositary or the Company for interest thereon or the investment
thereof).
6. Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem practicable, including, without
limitation,
by transfer of record ownership thereof to an account designated in the
Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar
for the Deposited Securities.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by
the
Depositary.
4
8. Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in
certificated form
so
cancelled in accordance with its customary practices. Cancelled ADRs shall
not
be entitled
to any benefits under this Agreement or be valid or binding for any purpose.
9. The
Custodian.
The
Depositary may from time to time appoint one or more agents to act
for
it as Custodian hereunder. Any Custodian in acting hereunder shall be subject
to
the directions
of the Depositary and shall be responsible solely to it. Each Custodian so
appointed (other
than JPMorgan Chase Bank, N.A. or the initial Custodian acting hereunder) shall
give written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound
by
the applicable terms of this Deposit Agreement. The Depositary shall be
responsible for the
compliance by the Custodian with any applicable provisions of the Deposit
Agreement. Any Custodian
may resign from its duties hereunder by at least 30 days written notice to
the
Depositary.
The Depositary may discharge any Custodian at any time upon notice to the
Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon
the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing
to act.
10. Intentionally
Omitted.
11. Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company may
request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
within three
days of the Depositary's receipt of such request.
12. Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13. Successor
Depositary.
Unless
otherwise agreed in writing: (i) the Depositary may at any
time
resign as Depositary hereunder by at least 60 days prior written notice of
its
election so to
do
delivered to the Company and (ii) the Depositary may at any time be removed
by
the Company
by at least 60 days prior written notice of such removal. Notwithstanding
anything to the
contrary contained herein, in case at any time the Depositary acting hereunder
shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement
pursuant to paragraph (17) of the form of ADR. Any bank or trust company into
or
with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer
substantially all its American depositary receipt business, shall be the
successor of the Depositary
without the execution or filing of any document or any further act. The
Depositary agrees
to
notify the Company of any such merger, consolidation or transfer.
5
14. Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or stock exchange, by publication or otherwise, the Company shall
transmit to the Depositary a copy
thereof in English or with an English translation or summary. The Company has
delivered to
the
Depositary a copy of all provisions of or governing the Shares and any other
Deposited Securities
issued by the Company or any affiliate of the Company and, promptly upon any
change thereto,
the Company shall deliver to the Depositary a copy (in English or with an
English translation)
of such provisions as so changed. The Depositary and its agents may rely upon
the Company's
delivery thereof for all purposes of this Deposit Agreement.
15. Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
16. Indemnification.
The
Company agrees to indemnify the Depositary and its agents acting
hereunder against, and defend and hold each of them harmless from and against
any loss, liability
or expense (including, but not limited to, the reasonable fees and expenses
of
counsel) which
may
arise out of or in connection with (a) any registration with the Commission
of ADRs, ADSs
or
Deposited Securities or the offer or sale thereof in the United States or
(b) acts performed
or omitted, pursuant to the provisions of this Deposit Agreement and of the
ADRs, 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,
or (ii) by the
Company or any of its directors, employees, agents and affiliates excepting,
however, subject to
the
penultimate paragraph of this Section 16, any loss, liability or expense arising
out of the negligence
or bad faith of the Depositary or its agents acting hereunder.
The
indemnities set forth in the preceding paragraph shall apply to any liability
or
expense 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 ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith
of
the Depositary or its
agents acting hereunder.
6
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other
for
any indirect, special, punitive or consequential damages (collectively "Special
Damages")
except (i) to the extent such Special Damages arise from the gross negligence
or
willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages
arise from or out of a claim brought by a third party (including, without
limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of
the
gross negligence or willful misconduct of the party seeking indemnification
hereunder.
Any
person seeking indemnification hereunder (an "indemnified
person")
shall
notify the person
from whom it is seeking indemnification (the "indemnifying
person")
of the
commencement
of any indemnifiable action or claim promptly after such indemnified person
becomes
aware of such commencement (provided that the failure to make such notification
shall not
affect such indemnified person's rights otherwise than under this Section 16
and
shall only affect
its rights hereunder to the extent such failure is prejudicial) 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 indemnifiable
action or claim without the prior written consent of the indemnifying person
(which consent
shall not be unreasonably withheld or delayed).
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
|
Four
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
| (b) |
Koninklijke
KPN N.V.
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention:
Director of Investor Relations
Fax:
▇▇ ▇▇ ▇▇ ▇▇▇▇▇
|
18. Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument.
7
19. Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now
or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has
appointed KPN INS, Inc., ▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized
agent (the "Authorized Agent") upon which process may be served in any such
action arising
out of or based on this Deposit Agreement or the transactions contemplated
hereby which may
be
instituted in any state or federal court in New York, New York by the Depositary
or any Holder,
and waives any other requirements of or objections to personal jurisdiction
with
respect thereto.
The Company represents and warrants that the Authorized Agent has agreed to
act
as said agent
for
service of process, and the Company agrees to take any and all action, including
the filing
of
any and all documents and instruments, that may be necessary to continue such
appointment
in full force and effect as aforesaid. Service of process upon the Authorized
Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service
of process upon the Company. If, for any reason, the Authorized Agent named
above or its successor
shall no longer serve as agent of the Company to receive service of process
in
New York,
the
Company shall promptly appoint a successor acceptable to the Depositary, so
as
to serve and
will
promptly advise the Depositary thereof. 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 ten (10) days after
the
same shall
have been so mailed. Notwithstanding the foregoing, any action based on this
Agreement may
be
instituted by the Depositary or any Holder in any competent court in The
Netherlands.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any
time
be commenced, with respect to its obligations, liabilities or other matter
under
or arising out
of or
in connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
8
20. Amendment
and Restatement of Old Deposit Agreement.
The
Deposit Agreement amends and restates the Old Deposit Agreement in its entirety
to consist exclusively
of the Deposit Agreement, and each Old Receipt is hereby deemed amended and
restated
to substantially conform to the form of ADR set forth in Exhibit A annexed
hereto, except that,
to
the extent any portion of either such amendment and restatement would prejudice
any substantial
existing right of owners of Old Receipts, such portion shall not become
effective as to such
owners until 30 days after such owners shall have received notice thereof,
such
notice
to
be conclusively deemed given upon the mailing to such owners of notice of such
amendment
and restatement which notice contains a provision whereby such owners can
receive a copy
of
the form of ADR.
9
IN
WITNESS WHEREOF, KONINKLIJKE KPN N.V. and JPMORGAN CHASE
BANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above
set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs
issued in accordance with the terms hereof.
| KONINKLIJKE KPN N.V. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | /s/ | |
|
Name: |
||
| Title: Vice President | ||
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
____
Number
|
No. of ADSs: |
|
___________
Each ADS represents
One Share
|
|
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
KONINKLIJKE
KPN N.V.
(Incorporated
under the laws of The Netherlands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , as depositary hereunder (the
"Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares
("ADSs"), each (subject to paragraph (13)) representing one ordinary share
(including the rights
to
receive Shares described in paragraph (1), "Shares" and, together with any
other
securities,
cash or property from time to time held by the Depositary in respect or in
lieu
of deposited
Shares, the "Deposited Securities"), of Koninklijke KPN N.V., a corporation
organized under
the
laws of The Netherlands (the "Company"), deposited under the Amended and
Restated Deposit
Agreement dated as of December 30, 2005 (as amended from time to time, the
"Deposit Agreement")
among the Company, the Depositary and all Holders from time to time of American
Depositary
Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR becomes
a
party
thereto. The Deposit Agreement and this ADR (which includes the provisions
set
forth on the
reverse hereof) shall be governed by and construed in accordance with the laws
of the State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
satisfactory to the Custodian; (b) rights to receive Shares from the Company
or
any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or,
(c)
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market
daily) with cash or U.S. government securities held by the Depositary for the
benefit of Holders
(but such collateral shall not constitute "Deposited Securities"), (ii) each
recipient of Pre-released
ADRs agrees in writing with the Depositary that such recipient or its customer
(a) beneficially
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary,
(c) holds such Shares for the account of the Depositary and (d) will deliver
such Shares
to
the Custodian as soon as practicable and promptly upon demand therefor and
(iii)
all Pre-released
ADRs evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released
ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may retain
for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof.
At the request, risk and expense of the person depositing Shares, the Depositary
may accept
deposits for forwarding to the Custodian and may deliver ADRs at a place other
than its office.
Every person depositing Shares under the Deposit Agreement represents and
warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free
and clear of any lien,
encumbrance, security interest, charge, pledge or restriction on transfer and
were not acquired
in violation of any pre-emptive rights, that the person making such deposit
is
duly authorized
so to do and that such Shares are not subject to any other restriction on sale,
transfer or deposit
under the laws of the United States or of the Netherlands, or under a
shareholders' agreement
or the Company's Articles of Association or any applicable regulations of any
securities exchange.
If any such representations or warranties are incorrect in any respect, the
Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
such Shares, to
take
any and all actions necessary to correct the consequences thereof. Such
representations and
warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under
the
Securities Act of 1933 and not so registered; the Depositary shall refuse to
accept for such
deposit any Shares specifically identified in writing by the Company for such
limited period of
time
as is legally required to facilitate the Company's compliance with such
Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
(i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions
and documentation in the case of a Direct Registration ADR, the Holder hereof
is
entitled
to delivery at, or to the extent in dematerialized form from, the Custodian's
office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk
and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such
other place as may have been requested by the Holder. Notwithstanding any other
provision of
the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only
for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a
register (the
"ADR
Register") for the registration, registration of transfer, combination and
split-up of ADRs,
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which
at
all reasonable times will be open for inspection by Holders and the Company
for
the purpose
of communicating with Holders in the interest of the business of the Company
or
a matter relating
to the Deposit Agreement and (b) facilities for the delivery and receipt of
ADRs. The term ADR
Register includes the Direct Registration System. Title to this ADR (and to
the
Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs
in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer, is transferable
by delivery with the same effect as in the case of negotiable instruments under
the laws
of
the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register
as
the absolute
owner hereof for all purposes and neither the Depositary nor the Company will
have any obligation
or be subject to any liability under the Deposit Agreement to any holder of
an
ADR, unless
such holder is the Holder thereof. Subject to paragraphs (4) and (5), this
ADR
is transferable
on the ADR Register and may be split into other ADRs or combined with other
ADRs
into
one
ADR, evidencing the aggregate number of ADSs surrendered for split-up or
combination, by
the
Holder hereof or by duly authorized attorney upon surrender of this ADR at
the
Transfer Office
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to
the Depositary
of proper instruments of transfer and duly stamped as may be required by
applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time
when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary
shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR,
or
vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR,
as the case
may
be, for any authorized number of ADSs requested, evidencing the same aggregate
number
of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR,
as
the case
may
be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the
case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or
other
governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and
this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the
Depositary may establish consistent with the Deposit Agreement. The issuance
of
ADRs, the acceptance
of deposits of Shares, the registration, registration of transfer, split-up
or
combination of ADRs or, subject to the last sentence of paragraph (2), the
withdrawal of Deposited Securities may
be
suspended, generally or in particular instances, when the ADR Register or any
register for Deposited
Securities is closed or when any such action is deemed advisable by the
Depositary.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may
sell
by public or private sale for the account of the Holder hereof any part or
all
of such Deposited
Securities (after attempting by reasonable means to notify the Holder hereof
prior to such
sale), and may apply such deduction or the proceeds of any such sale in payment
of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency,
and
shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In
connection with
any
distribution to Holders, the Company will remit to the appropriate governmental
authority
or agency all amounts (if any) required to be withheld and owing to such
authority or agency
by
the Company; and the Depositary and the Custodian will remit to the appropriate
governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority
or agency by the Depositary or the Custodian. If the Depositary determines
that
any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject
to any tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after
deduction of such taxes to the Holders entitled thereto. Each Holder of an
ADR
or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective
directors, employees, agents and affiliates against, and hold each of them
harmless from,
any
claims by any governmental authority with respect to taxes, additions to tax,
penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited
Securities may require disclosure of or impose limits on beneficial or other
ownership of
Deposited Securities, other Shares and other securities and may provide for
blocking transfer, voting
or
other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree
to
comply with all such disclosure requirements and ownership limitations and
to
comply with
any
reasonable Company instructions in respect thereof. The Company reserves the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so
as to
permit the Company to deal directly with the Holder thereof as a holder of
Shares and Holders
agree to comply with such instructions. The Depositary agrees to cooperate
with
the Company
in its efforts to inform Holders of the Company's exercise of its rights under
this paragraph
and agrees to consult with, and provide reasonable assistance without risk,
liability or expense on the part of the Depositary, to the Company on the manner
or manners in which it may enforce
such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued
against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs
for
withdrawal of Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion
thereof) delivered
or surrendered. The Depositary may sell (by public or private sale) sufficient
securities and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred
by the Holders,
by any party depositing or withdrawing Shares or by any party surrendering
ADRs
or to whom
ADRs
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 ADRs or
the
Deposited Securities
or a distribution of ADRs pursuant to paragraph (10)), whichever is applicable
(i) to the extent
not prohibited by the rules of the primary stock exchange upon which the ADSs
are listed, a
fee of
$.02 or less per ADS (or portion thereof) for any Cash distribution made
pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the primary stock
exchange upon
which the ADSs are listed, a fee of $1.50 per ADR or ADRs for transfers made
pursuant to paragraph
(3) hereof, (iii) a fee for the distribution or sale of securities pursuant
to
paragraph (10) hereof,
such fee being in an amount equal to the fee for the execution and delivery
of
ADSs referred
to above which would have been charged as a result of the deposit of such
securities (for purposes
of this paragraph (7) treating all such securities as if they were Shares)
but
which securities
or the net cash proceeds from the sale thereof are instead distributed by the
Depositary to
Holders entitled thereto, (iv)
to
the extent not prohibited by the rules of the primary stock exchange
upon which the ADSs are listed, a fee of US$0.02 per ADS (or portion thereof)
per year for
the
services performed by the Depositary in administering the ADRs (which fee shall
be assessed
against Holders as of the record date or dates set by the Depositary not more
than once each
calendar year and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions), and
(v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses
incurred on behalf of Holders in connection with compliance with foreign
exchange control
regulations or any law or regulation relating to foreign investment) in delivery
of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance
with applicable law, rule or regulation. The Company will pay all other charges
and expenses
of the Depositary and any agent of the Depositary (except the Custodian) only
pursuant to
written agreements entered into from time to time between the Company and the
Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders
or persons depositing Shares), (ii) cable, telex and facsimile transmission
and
delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited
Securities (which are payable by such persons or Holders), (iii) transfer or
registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with
the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares
or
Holders withdrawing Deposited Securities; there are no such fees in respect
of
the Shares
as
of the date of the Deposit Agreement), (iv) expenses of the Depositary in
connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency),
and (v) any other charge payable by any of the Depositary, any of the
Depositary’s
agents,
including, without limitation, the custodian, or the agents of the Depositary’s
agents in connection with the servicing of the Shares or other Deposited
Securities (which charge shall be assessed
against Holders as of the record date or dates set by the depositary and shall
be payable at the
sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or
more
cash dividends or other cash distributions).
Except
to the extent the Company is depositing
Shares hereunder (in which case it may be subject to the charges and expenses
set forth in
(i),
(ii) and (iii) of the immediately preceding sentence) or is a Holder (in which
case it may be subject
to the charges and expenses set forth in (v) of the immediately preceding
sentence), the Company
shall not be responsible for paying any of the charges or expenses described
in
(i) - (v) set
forth
in the immediately preceding sentence. Subject to the notice provisions of
paragraph (16)
hereof, such charges may at any time and from time to time be changed by
agreement between
the Company and the Depositary
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission located
at the date
hereof at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
| Dated: | ||
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| |
|
|
| By: | /s/ ................................................................................. | |
| Authorized Officer | ||
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to
the
number of Deposited Securities (on which the following distributions on
Deposited Securities
are received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a)
Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash
distribution or the net proceeds of sales of any other distribution or portion
thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable basis,
subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible
or
impracticable
with respect to certain Holders, and (iii) deduction of the Depositary's
expenses in (1)
converting any foreign currency to U.S. dollars by sale or in such other manner
as the Depositary
may determine to the extent that it determines that such conversion may be
made
on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States
by
such means
as
the Depositary may determine to the extent that it determines that such transfer
may be made
on a
reasonable basis, (3) obtaining any approval or license of any governmental
authority required
for such conversion or transfer, which is obtainable at a reasonable cost and
within a reasonable
time and (4) making any sale by public or private means in any commercially
reasonable
manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares
available to the Depositary resulting from a dividend or free distribution
on
Deposited Securities
consisting of Shares (a "Share Distribution") and (ii) U.S. dollars available
to
it resulting
from the net proceeds of sales of Shares received in a Share Distribution,
which
Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in
the
case of Cash.
(c)
Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights
to
acquire additional ADRs in respect of any rights to subscribe for additional
Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to
the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation
to so furnish such evidence), or (ii) to the extent the Company does not so
furnish such evidence
and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net
proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the
Company does not so
furnish such evidence and such sales cannot practicably be accomplished by
reason of the nontransferability
of the Rights, limited markets therefor, their short duration or otherwise,
nothing
(and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to
the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions
and Rights ("Other Distributions"), by any means that the Depositary may deem
equitable
and practicable, or (ii) to the extent the Depositary deems distribution of
such
securities or
property not to be equitable and practicable, any U.S. dollars available to
the
Depositary from the
net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional
cents will be withheld without liability and dealt with by the Depositary in
accordance with
its
then current practices.
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any corresponding
record date set by the Company with respect to the Shares) for the determination
of the Holders who shall be responsible for the fee assessed by the Depositary
for administration of the
ADR
program and for any expenses provided for in paragraph (7) hereof as well as
for
the determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited
Securities, to give instructions for the exercise of any voting rights, to
receive any notice
or
to act in respect of other matters and only such Holders of record on the close
of business
(New York time) on such date shall be so entitled or obligated.
A-7
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice
stating (a) such information
as is contained in such notice and any solicitation materials delivered by
the
Company to
the
Depositary, (b) that each Holder on the record date set by the Depositary
therefor will, subject
to any applicable provisions of the law of The Netherlands, be entitled to
instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the whole number
of Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c)
the
manner
in
which such instructions may be given, including instructions to give a
discretionary proxy
to
a person designated by the Company. Upon receipt of instructions of a Holder
on
such record
date in the manner and on or before the date established by the Depositary
for
such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of
or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented
by the ADSs evidenced by such Holder's ADRs in accordance with such
instructions. The
Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
To the extent such instructions are not so received by the Depositary from
any
Holder, the
Depositary shall deem such Holder to have so instructed the Depositary to give
a
discretionary proxy
to
a person designated by the Company and the Depositary shall endeavor insofar
as
practicable
and permitted under the provisions of or governing Deposited Securities to
give
a discretionary
proxy to a person designated by the Company to vote the Deposited Securities
represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions are
so
given,
provided
that no
such instruction shall be deemed given and no discretionary proxy shall be
given
with respect to any matter as to which the Company informs the Depositary (and
the Company
agrees to provide such information promptly in writing) or the Depositary
reasonably believes
(in the case of (y) or (z) below) that (x) the Company does not wish such proxy
given, (y) substantial
opposition exists or (z) materially affects the rights of holders of Shares.
For
purposes hereof,
by way of example and not limitation, it is agreed that routine matters, such
as
appointing auditors
and directors (except where a competing director or slate of directors is
proposed), appointing
Supervisory Board members (except where a competing Supervisory Board member
or
slate
of
members is proposed), approving the Annual Report and resolutions to approve
the
public offering
or private placement of de minimis amounts of securities (i.e. issuances of
Shares which, based
on
the number of Shares issued and outstanding prior to giving effect to such
issuance, represents
less than ten percent of the then outstanding Shares), would not materially
affect the rights
of
holders of Shares.
Notwithstanding
anything to the contrary contained herein, the Depositary shall not be
obligated
to give any such deemed instruction with respect to any vote, unless and until
the Depositary
has been provided with an opinion of counsel to the Company, in form and
substance reasonably
satisfactory to the Depositary, to the effect that (i) the granting of such
discretionary proxy
does not subject the Depositary to any reporting obligations in the Netherlands,
(ii) the granting of such proxy will not result in a violation of Dutch law,
rule, regulation or permit, (iii) the
voting arrangement and proxy as contemplated herein will be given effect under
Dutch law, rule
and
regulation, (iv) the Depositary will not be deemed to be authorized to exercise
any discretion
when voting in accordance with the terms of this paragraph (12) under Dutch
law,
rule or
regulation and, (v) the Depositary will not be subject to any liability under
Dutch law, rule or regulation
for losses arising from the exercise of the voting arrangements set forth in
this paragraph
(12). For purposes of (v) above, counsel to the Company may assume in such
opinion that
the
Depositary has complied with the instructions received from Holders (or deemed
to so have
received) as set forth in this paragraph (12) and that such liability or losses
did not arise due to
the
negligence or bad faith of the Depositary or its agents (which agents shall
not
include the person
appointed by the Company to receive the deemed discretion of those Holders
from
whom voting
instructions were not timely received).
A-8
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice
described above with sufficient time to enable such Holder to return any voting
instructions to
the
Depositary in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with
or
without calling this ADR for exchange) or cash, securities or property on the
record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or
Other Distribution
not distributed to Holders or any cash, securities or property available to
the
Depositary
in respect of Deposited Securities from (and the Depositary is hereby authorized
to surrender
any Deposited Securities to any person and, irrespective of whether such
Deposited Securities
are surrendered or otherwise cancelled by operation of law, rule, regulation
or
otherwise,
to sell by public or private sale any property received in connection with)
any
recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale
of
all or substantially all the assets of the Company, and to the extent the
Depositary does not so
amend
this ADR or make a distribution to Holders to reflect any of the foregoing,
or
the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent
its pro rata interest in the Deposited Securities as then
constituted.
(14)
Exoneration.
Each of
the Depositary, the Company, their agents and each of them shall:
(a) incur no liability to any Holder, beneficial owners of an interest in ADSs
or third party (i)
if
any present or future law, rule or regulation of the United States, The
Netherlands or any other
country, or of any governmental or regulatory authority or any securities
exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present
or future provision of the Company's charter, any act of God, war, terrorism
or
other circumstance
beyond its control shall prevent, delay or subject to any civil or criminal
penalty
any act
which
the Deposit Agreement or this ADR provides shall be done or performed
by
it or
them (including,
without limitation, voting pursuant to paragraph (12) hereof), or (ii) by reason
of any exercise
or failure to exercise any discretion given it in the Deposit Agreement or
this
ADR; (b) assume
no
liability to any Holder, beneficial owner of an interest in ADSs or third party
except to perform
its obligations to the extent they are specifically set forth in this ADR and
the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary and
its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect
of any Deposited Securities or this ADR; (d) in the case of the Company and
its
agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding
in respect of any Deposited Securities or this ADR, which in its opinion may
involve it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements
of counsel) and liability be furnished as often as may be required; or (e)
not
be liable
for any action or inaction by it in reliance upon the advice of or information
from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other
person believed
by it to be competent to give such advice or information. The Depositary, its
agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or
other
document believed by them to be genuine and to have been signed or presented
by
the proper
party or parties. The Depositary and its agents shall not be responsible for
any
failure to carry
out
any instructions to vote any of the Deposited Securities, for the manner in
which any such
vote
is cast or for the effect of any such vote. The Depositary and its agents may
own and deal
in
any class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything
to the contrary set forth in the Deposit Agreement or an ADR, the Depositary
and
its agents
may fully respond to any and all demands or requests for information maintained
by or on its
behalf in connection with the Deposit Agreement, any Holder or Holders, any
ADR
or ADRs or
otherwise related hereto to the extent such information is requested or required
by or pursuant to
any
lawful authority, including without limitation laws, rules, regulations,
administrative or judicial
process, banking, securities or other regulators. In the Deposit Agreement,
the
Company has
agreed to indemnify the Depositary and its agents under certain circumstances
and the Depositary
has agreed to indemnify the Company under certain circumstances. Neither the
Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages.
No disclaimer of liability under the Securities Act of 1933 is intended by
any
provision hereof.
A-9
(15)
Resignation
and Removal of Depositary; the Custodian.
Unless
otherwise agreed in writing,
the Depositary may resign as Depositary by 60 days written notice of its
election to do so delivered
to the Company, or be removed as Depositary by the Company by 60 days written
notice of
such
removal delivered to the Depositary. The Depositary may appoint substitute
or
additional Custodians
and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be amended by the Company and the Depositary, provided
that any
amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission
costs, delivery
costs or other such expenses), or that shall otherwise prejudice any substantial
existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given
to
the Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement
so becomes effective shall be deemed, by continuing to hold such ADR, 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 Holder of any ADR to surrender
such
ADR and
receive the Deposited Securities represented thereby, except in order to comply
with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be
registered on Form F-6 under the Securities Act of 1933 or (b) the ADSs or
Shares to be traded solely
in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or
charges to be borne by Holders, shall be deemed not to prejudice any substantial
rights of Holders.
Notwithstanding the foregoing, if any governmental body or regulatory body
should adopt
new
laws, rules or regulations which would require amendment or supplement of the
Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary
may amend or supplement the Deposit Agreement and the ADR at any time in
accordance
with such changed laws, rules or regulations. Such amendment or supplement
to
the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment
or supplement is given to Holders or within any other period of time as required
for compliance.
A-10
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit
Agreement, the Depositary may, and shall at the written direction of the
Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination.
After the date so
fixed
for termination, the Depositary and its agents will perform no further acts
under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions
on
Deposited Securities
and deliver Deposited Securities being withdrawn. As soon as practicable after
the expiration
of six months from the date so fixed for termination, the Depositary shall
sell
the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in
a
segregated account
the net proceeds of such sales, together with any other cash then held by it
under the Deposit
Agreement, without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs
not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from
all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net
proceeds and other cash. After the date so fixed for termination, the Company
shall be discharged
from all obligations under the Deposit Agreement except for its obligations
to
the Depositary
and its agents.
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint
the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all
procedures necessary to comply with applicable law and to take such action
as
the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement
and the applicable ADR(s), the taking of such actions to be the conclusive
determinant of
the
necessity and appropriateness thereof.
A-11