SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT, dated as of October 18,
2004 (this "Agreement"), to the Deposit Agreement (as defined below), by and
among ▇▇▇▇ ▇▇▇▇▇ ▇.▇., a company incorporated and existing under the laws of The
Netherlands, and its successors (the "Company"), Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG, in its capacity as the successor depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued
thereunder (as defined in the Deposit Agreement).
W I T N E S S E T H T H A T:
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WHEREAS, the Company and Citibank, N.A. (the "Predecessor Depositary")
entered into the Amended and Restated Deposit Agreement, dated as of October 15,
1999 (the "Deposit Agreement"), for the purposes set forth therein;
WHEREAS, by written notice da9ted September 16, 2004 addressed to the
Predecessor Depositary, the Company, pursuant to Section 5.4 of the Deposit
Agreement, has removed the Predecessor Depositary under the Deposit Agreement
and has appointed Deutsche Bank Trust Company Americas as Depositary in
accordance with and subject to the conditions of the Deposit Agreement, as
amended and supplemented by this Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that
the Predecessor Depositary, in consideration of the payment of certain fees and
expenses of the Predecessor Depositary, will be removed as depositary under the
Deposit Agreement with effect from the Effective Date (as defined in Section
6.01 herein);
WHEREAS, the Company and the Depositary have agreed that the
Predecessor Depositary shall deliver to the Depositary the information, records,
property and cash referred to in Section 5.4 of the Deposit Agreement;
WHEREAS, Deutsche Bank Trust Company Americas has accepted its
appointment as Depositary in accordance with and subject to the conditions of
the Deposit Agreement, as amended and supplemented by this Agreement;
WHEREAS, the Company desires to provide for the deposit of Shares of
the Company with the Depositary or the Custodian as agent for the Depositary and
for the execution and delivery of Receipts evidencing American Depositary Shares
representing beneficial interests in the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and supplement
the terms of the Deposit Agreement and form of Receipts, in accordance with
Section 6.1 of the Deposit Agreement, inter alia to reflect the removal by the
Company of Citibank, N.A., in its capacity as the predecessor depositary, and
the appointment of Deutsche Bank Trust Company Americas, in its capacity as the
successor depositary, in accordance with Section 5.4 of the Deposit Agreement.
NOW, THEREFORE, the Company and the Depositary hereby amend and
supplement the Receipts and the Deposit Agreement, effective as of the Effective
Date (as defined in Section 6.01 hereof), as follows:
ARTICLE I
CONFIRMATION OF APPOINTMENT AND ACCEPTANCE OF DEPOSITARY
Section 1.01 The Company hereby confirms its appointment of the
Depositary as successor Depositary under the Deposit Agreement.
Section 1.02 The Depositary accepts the appointment referred to above
and agrees to observe and be bound by the terms of the Deposit Agreement, as
amended and supplemented by this Agreement, as if the Depositary had been
originally appointed as Depositary under the Deposit Agreement.
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ARTICLE II
DEFINITIONS
Section 2.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein and defined in the Deposit Agreement are used
herein as so defined.
ARTICLE III
AMENDMENTS TO DEPOSIT AGREEMENT
Section 3.01 All references in the Deposit Agreement to "Citibank,
N.A." are hereby replaced with references to "Deutsche Bank Trust Company
Americas". All references in the Deposit Agreement to "Citibank, N.A." or the
"Depositary" shall be read and construed as references to "Deutsche Bank Trust
Company Americas."
Section 3.02 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 3.03 The Deposit Agreement is hereby amended and supplemented
by deleting the words "Citibank, N.A., a national banking association organized
under the laws of the United States of America" from the preamble of the Deposit
Agreement, and replacing them with the words "Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG."
Section 3.04 The Deposit Agreement is hereby amended and supplemented
by deleting the words "Citibank N.A. - Amsterdam Branch, having its principal
office at Europlaza, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇.▇., ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇," from the definition of "Custodian" in Section 1.9 of the Deposit
Agreement, and replacing them with the words "Deutsche Bank AG Amsterdam Branch,
having its principal office at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇, ▇▇ 1017 CA, Amsterdam, The
Netherlands."
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Section 3.05 The Deposit Agreement is hereby amended and supplemented
by deleting the words "Citibank, N.A., a national banking association organized
under the laws of the United States" from the definition of "Depositary" in
Section 1.12 of the Deposit Agreement, and replacing them with the words
"Deutsche Bank Trust Company Americas, a New York banking corporation and an
indirect wholly owned subsidiary of Deutsche Bank AG".
Section 3.06 The Deposit Agreement is hereby amended and supplemented
by replacing Section 1.10 in its entirety with the following paragraph:
Section 1.10 "Deliver" and "Delivery" shall mean, when used in respect
of American Depositary Shares, Receipts, Deposited Securities and
Shares, the physical delivery of the certificate representing such
security or the electronic delivery of such security by means of
book-entry transfer by institutions authorized under applicable law to
effect the delivery of securities including, without limitation,
through DRS/Profile. With respect to DRS/Profile ADRs, the terms
"execute," "issue," "register," "surrender," "transfer" or "cancel"
refer to applicable entries or movements to or within DRS/Profile.
Section 3.07 The Deposit Agreement is hereby amended and supplemented
by replacing Section 1.23 in its entirety with the following paragraph:
Section 1.23 "Principal Office" shall mean, when used with respect to
the Depositary, the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered,
which, at the date of this Deposit Agreement, is located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America.
Section 3.08 The Deposit Agreement is hereby amended and supplemented
by replacing Section 1.24 in its entirety with the following paragraph:
Section 1.24 "Receipts," "American Depositary Receipts" and "ADRs"
shall mean the certificate(s) or DRS/Profile statements issued by the
Depositary evidencing the American Depositary Shares issued under the
terms of the Deposit Agreement, as such Receipts may be amended from
time to time in accordance with the provisions of this Deposit
Agreement. References to Receipts shall include physical certificated
Receipts as well as statements reflecting American Depositary Shares
issued through DRS/Profile, unless the context otherwise requires.
Section 3.09 The Deposit Agreement is hereby amended and supplemented
by replacing Section 1.32 in its entirety with the following paragraph:
Section 1.32 "Euroclear Nederland" shall mean the Dutch central
securities depository, formerly known as NECIGEF, located at ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
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Section 3.10 The Deposit Agreement is hereby amended and supplemented
by replacing the term "NECIGEF" with the words "Euroclear Nederland."
Section 3.11 The Deposit Agreement is hereby amended and supplemented
by inserting the following Section 1.34 immediately following Section 1.33:
Section 1.34 "DRS/Profile" shall mean the system for the uncertificated
registration of ownership of securities pursuant to which ownership of
ADSs is maintained on the books of the Depositary without the issuance
of a physical certificate and transfer instructions may be given to
allow for the automated transfer of ownership between the books of DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are evidenced
by periodic statements issued by the Depositary to the owners entitled
thereto.
Section 3.12 The Deposit Agreement is hereby amended and supplemented
by deleting the words "The Netherlands Securities Investment Board" and
replacing them with the words "The Netherlands Authority for the Financial
Markets."
Section 3.13 The Deposit Agreement is hereby amended and supplemented
by deleting the words "and at the Commission's New York City office located at
Seven World Trade Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇" from Section
4.12 of the Deposit Agreement.
Section 3.14 The Deposit Agreement is hereby amended and supplemented
by deleting the words "Citibank N.A. - Amsterdam Branch." from Section 5.5 of
the Deposit Agreement, and replacing them with the words "Deutsche Bank AG
Amsterdam Branch."
Section 3.15 The Deposit Agreement is hereby amended and supplemented
by deleting the first paragraph of Section 5.8 and replacing it with the
following:
The Depositary agrees to indemnify the Company and its directors,
officers, employees, agents and Affiliates against, and hold each of
them harmless from, any direct loss, liability, tax, charge or expense
of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or
omitted by (i) the Depositary under the terms hereof due to the
negligence or bad faith of the Depositary and its directors, officers,
employees, agents and Affiliates or (ii) the Custodian under the terms
hereof due to negligence or bad faith of the Custodian, provided
however, that the Depositary shall have no duty to indemnify for the
acts or omissions of any Custodian hereunder unless the Custodian is
Deutsche Bank AG Amsterdam Branch or any other Custodian appointed by
the Depositary.
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Section 3.16 The Deposit Agreement is hereby amended and supplemented
by inclusion of the following address for notices to the Depositary in Section
7.5:
"60 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: ADR
Department".
Section 3.17 All references in the Deposit Agreement to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to an entry or entries or an
electronic transfer or transfers, including through the DRS/Profile, as well as
to the physical transfer of certificates representing the Shares.
ARTICLE IV
AMENDMENTS TO FORM OF RECEIPT
Section 4.01 The form of Receipt attached as Exhibit A to the Deposit
Agreement (the "Form of Receipt") is amended and restated in its entirety to
read as Exhibit A attached hereto, with such amendments reflecting the
appointment of the Depositary.
Section 4.02 All references in the Form of Receipt to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to any entry or entries or an
electronic transfer or transfers as well as to the physical transfer of
certificates representing the Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. The Company and the
Depositary mutually represent and warrant to each other and to the Holders, that
this Agreement, when executed and delivered by each of the Company and the
Depositary, and the Deposit Agreement, as amended and supplemented by this
Agreement and all other documentation executed and delivered by the Company and
the Depositary in connection therewith, will be duly and validly authorized,
executed and delivered by the Company and the Depositary, and constitute the
legal, valid and binding
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obligations of the Company and the Depositary, enforceable against the Company
and the Depositary in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Effective Date. This Agreement is dated as of the date
first set forth above and shall be effective on the later to occur of (i)
October 18, 2004, and (ii) the effective date of the Registration Statement on
Form F-6 to be filed by the Depositary, on behalf of the legal entity created by
the Deposit Agreement, as amended and supplemented by this Agreement in
connection with its appointment as successor depositary, the removal of the
Predecessor Depositary to be effective simultaneously therewith (the "Effective
Date"). From and after the Effective Date, all references in the Deposit
Agreement and the Form of Receipt shall be deemed to be references to the
Deposit Agreement and Form of Receipt, as amended and supplemented by this
Agreement.
Section 6.02 Outstanding Receipts. Receipts issued prior to the date
hereof, which do not reflect the changes to the Receipts effected hereby, do not
need to be called in for exchange and may remain outstanding until such time as
the Holders thereof choose to surrender them for any reason under the Deposit
Agreement, as amended and supplemented by this Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The Company hereby instructs the Depositary (i) promptly to send notice
of the execution of the Deposit Agreement, as amended and supplemented by this
Agreement, to all holders of American Depositary Receipts outstanding under the
Deposit Agreement as of the date hereof and (ii) to inform holders of American
Depositary Receipts outstanding under the Deposit Agreement as of the date
hereof that they have the opportunity, but are not required, to exchange their
Receipts for one or more Receipts issued pursuant to the Deposit Agreement, as
amended and supplemented by this Agreement.
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Holders and Beneficial Owners of Receipts issued pursuant to the
Deposit Agreement issued prior to the date hereof and outstanding as of the date
hereof, shall, from and after the date hereof, be deemed Holders and Beneficial
Owners of Receipts issued pursuant and subject to all of the terms and
conditions of the Deposit Agreement, as amended and supplemented by this
Agreement, in all respects, provided, however, that any amendment to the Deposit
Agreement effectuated by this Agreement that prejudices any substantial existing
right of Holders or Beneficial Owners of Receipts issued under the Deposit
Agreement shall not become effective as to Holders and Beneficial Owners until
30 days after notice of the amendment and supplement effectuated by this
Agreement shall have been given to holders of Receipts outstanding as of the
date hereof.
Section 6.03 Undertaking of Depositary. The Depositary hereby
undertakes promptly to mail notice of its appointment as Depositary under the
Deposit Agreement, as amended and supplemented by this Agreement, to the Holders
of Receipts outstanding as of the date hereof.
Section 6.04 Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Agreement and the transactions contemplated herein.
Nothing herein shall obligate Deutsche Bank Trust Company Americas to indemnify
or hold harmless the Company or any of its directors, employees, agents and
affiliates for any liability or expense arising out of acts performed or omitted
by Citibank, N.A., as Predecessor Depositary, the Custodian or their respective
directors, employees, agents and affiliates.
Section 6.05 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 6.06 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized as of the date set forth above.
▇▇▇▇ ▇▇▇▇▇ ▇.▇., as the Company
By: /s/ ▇.▇. (▇▇▇▇) Wijers
---------------------------------------------
Name: ▇.▇. (Hans) Wijers
Title: Chariman and Chief Executive Officer
By: /s/ R. (Rob) ▇▇▇▇▇
---------------------------------------------
Name: R. (Rob) ▇▇▇▇▇
Title: Director, Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER: [_______]
American Depositary Shares (each
American Depositary Share
representing one (1) fully paid
Ordinary Share, nominal value EUR
2.00 per Share
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
▇▇▇▇ ▇▇▇▇▇ ▇.▇.
(Incorporated under the laws of The Netherlands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation
and an indirect wholly owned subsidiary of Deutsche Bank AG, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, nominal value EUR 2.00 per share, including evidence of rights to
receive such ordinary shares (the "Shares") of ▇▇▇▇ ▇▇▇▇▇ ▇.▇., a corporation
incorporated under the laws of The Netherlands (the
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"Company"). As of the date of the Deposit Agreement (as hereinafter defined),
each ADS represents one (1) Share deposited under the Deposit Agreement with the
Custodian, which at the date of execution of the Deposit Agreement is Deutsche
Bank AG Amsterdam Branch (the "Custodian"). The ratio of ADSs to Shares is
subject to amendment as provided in Article IV of the Deposit Agreement. The
Depositary's Principal Office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Amended and Restated
Deposit Agreement, dated as of October 15, 1999 (as amended from time to time,
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Holders and Beneficial Owners from time to time of American Depositary Shares
("ADSs") evidenced by Receipts issued thereunder, each of whom by accepting an
ADS (or an interest therein) agrees to become a party thereto and becomes bound
by all the terms and conditions thereof. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association of the Company (as in
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effect on the date of the signing of the Deposit Agreement) and are qualified by
and subject to the detailed provisions of the Deposit Agreement and the Articles
of Association, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial
Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such
ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery as promptly as practicable (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADS(s)
evidenced hereby upon satisfaction of each of the following conditions: (i) the
Holder (or a duly authorized attorney of the Holder) has duly Delivered to the
Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this Receipt) for the purpose of withdrawal of the Deposited
Securities represented thereby, (ii) if so required by the Depositary, this
Receipt has been properly endorsed in blank or is accompanied by proper
instruments of transfer in blank (including signature guarantees in accordance
with standard securities industry practice), (iii) if so required by the
Depositary, the Holder of the ADSs has executed and delivered to the Depositary
a written order directing the Depositary to cause the Deposited Securities being
withdrawn to be Delivered to or upon the written order of the person(s)
designated in such order, and (iv) all applicable fees and charges
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of, and reasonable expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 and Exhibit B hereof)
have been paid, subject, however, in each case, to the terms and conditions of
this Receipt, of the Deposit Agreement, of the Company's Articles of
Association, of any applicable laws and the rules of Euroclear Nederland, and to
any provisions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver as promptly as
practicable at the Custodian's designated office the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities, or evidence of the electronic
transfer thereof (if available), as the case may be, to or upon the written
order of the person(s) designated in the order delivered to the Depositary for
such purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of this Receipt, of the Articles of Association of the
Company, of applicable laws and of the rules of Euroclear Nederland, and to the
terms and conditions of or governing the Deposited Securities, in each case as
in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of surrender of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance
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with the terms hereof, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADS(s) so surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. Notwithstanding anything else contained in this Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of (i) any
cash dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of stock or rights, which may at the time be held by the
Depositary in respect of the Deposited Securities represented by the ADSs
evidenced by this Receipt. At the request, risk and expense of any Holder
surrendering ADSs represented by this Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held by the
Custodian in respect of the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar shall
register the transfer of this Receipt (and of the ADSs represented thereby) on
the books maintained for such purpose and the Depositary shall cancel this
Receipt and execute new Receipts evidencing the same aggregate number of ADSs as
those evidenced by this Receipt when canceled, shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
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the order of the person entitled thereto, if each of the following conditions
has been satisfied: (i) this Receipt has been duly Delivered by the Holder (or
by a duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) this Receipt has
been properly endorsed or is accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) this Receipt has been duly stamped (if required by the laws of
the State of New York or of the United States), and (iv) all applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B to the Deposit Agreement) have been paid, in each case, however,
subject to the terms and conditions of this Receipt, of the Deposit Agreement
and of applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the number
of ADSs evidenced by this Receipt (when canceled), shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this Receipt has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a split-up or combination hereof, and (ii) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and government charges (as are set forth in Section 5.9 and
Exhibit B to the
A-6
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this Receipt, of the Deposit Agreement and of applicable law,
in each case, as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of ADSs or of a Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary, a Registrar or the
Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or
A-7
the Company, in good faith, at any time or from time to time because of any
requirement of the Company's Articles of Association or of any applicable law,
any government or governmental body or commission or any securities exchange
upon which the Receipts or Share are listed, or under any provision of the
Deposit Agreement or this Receipt, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the law of The Netherlands, the rules and requirements of
any stock exchange on which Shares or ADSs are or will be registered, traded or
listed, or the Articles of Association of the Company, which are made to provide
information as to the capacity in which such Holder or Beneficial Owner owns
A-8
ADSs (and Shares, as the case may be) and regarding the identity of any other
persons then or previously interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association of the Company. The Company
may also restrict, in such manner as it deems appropriate, transfers of ADSs
where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. Holders and Beneficial
Owners acknowledge that, under The Netherlands Act on the Disclosure of Holdings
in Listing Companies, as in effect as of the date hereof, shareholders
(including Holders and Beneficial Owners of ADSs) must promptly notify the
Company and The Netherlands Securities Investment Board if their holding
reaches, exceeds
A-9
or falls below 5%, 10%, 25%, 50% or 66-2/3% of the capital interest and/or
voting rights in the Company and agree to comply with such notification
requirements.
(7) Liability of Holder for Taxes and Other Charges. If any tax or
other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or Depositary may withhold or deduct from any distributions
made in respect of such Deposited Securities and may sell for the account of the
Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article (24) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian
and any of their agents, employees and Affiliates for, and hold each of then
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid,
A-10
non-assessable and legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Shares have been validly waived or
exercised, (iii) the person making such deposit is duly authorized so to do and
(iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, and (except
as contemplated in Section 2.12 of the Deposit Agreement) are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities and the Share
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and Depositary shall be authorized, at the cost and expense
of the person depositing Shares, to take any and all actions necessary to
correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties and to provide such other information or documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the
A-11
Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (24) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed, or such
representations are made or such information and documentation are provided, in
each case to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraph (iv)
below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so
surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00
per 100 ADSs (or portion thereof) held for the distribution
of cash proceeds (i.e., upon
A-12
the sale of rights and other entitlements). No fee shall be
payable for the distribution of cash dividends;
(iv) to any Holder of ADRs, a fee not in excess of $5.00 per 100
ADSs (or portion thereof) issued pursuant to stock dividends
or other free stock distributions or upon the exercise of
rights. No fee shall be payable for the distribution of ADSs
pursuant to stock dividends or other free distributions of
shares if such fees are prohibited by the exchange upon
which ADSs are listed.
(v) to any person presenting an ADR Certificate for transfer, a
fee not in excess of $1.50 per ADR Certificate presented for
transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and
other governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares
or other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
A-13
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement
to be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and reasonable expenses as are incurred by the
Depositary in connection with compliance with exchange
control regulations and other regulatory requirements
applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and reasonable expenses incurred by the Depositary
in connection with the delivery of Deposited Securities.
A-14
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary may deem and treat the Holder of this Receipt (that is,
the person in whose name this Receipt is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. The Depositary shall
have no obligation nor be subject to any liability under the Deposit Agreement
or this Receipt to any holder of this Receipt or any Beneficial Owner unless
such holder is the Holder of this Receipt registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of Receipt. This Receipt (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose
A-15
against the Depositary or the Company unless this Receipt has been (i) dated,
(ii) signed by the manual or facsimile signature of a duly authorized signatory
of the Depositary, (iii) countersigned by the manual or facsimile signature of a
duly authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
Receipts. Receipts bearing the manual or facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such Receipt
by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ and where made available by the Commission, on the
Commission's website. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of
A-16
such Receipts, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such Receipts in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated:
DEUTSCHE BANK TRUST COMPANY AMERICAS DEUTSCHE BANK TRUST COMPANY AMERICAS
Transfer Agent and Registrar as Depositary
By: By:
----------------------------------- -------------------------------------
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-17
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will (i) promptly convert or cause
to be converted such dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) establish the ADS Record Date upon the
terms described in Section 4.9, and (iii) will distribute promptly the amount
thus received (net of (a) applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be
A-18
reduced accordingly. Such withheld amounts shall be forwarded by the Company to
the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall or cause such
Shares to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or their nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall, as promptly as practicable, distribute to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to the
terms of the Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed,
each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net (a) of the applicable fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to
A-19
withhold, or, if the Company, in the fulfillment of its obligations under the
Deposit Agreement, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable and the Depositary shall distribute the net proceeds of any such
sale (after deduction of (a) taxes and fees and (b) charges of, and reasonable
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
of the Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
record date according to paragraph (16) and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be
A-20
distributed as in the case of a distribution in cash. If the Holder hereof
elects to receive the distribution in additional ADSs, the distribution shall be
distributed as in the case of a distribution in Shares. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holder
hereof a method to receive the elective distribution in Shares (rather than
ADSs). There can be no assurance that the Holder hereof will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have requested that such rights be made
available to Holders, (ii) the Depositary shall have received the documentation
contemplated in the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described in the Deposit
Agreement) and, after consultation with the Company, establish procedures to
distribute rights to purchase additional ADSs (by means of warrants or
otherwise) and to enable the Holders to exercise the rights (upon payment of the
subscription price and of the applicable (a) fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes). Nothing herein or in the
Deposit
A-21
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not request the Depositary to make the rights available to Holders
or if the Company requests that the rights not be made available to Holders,
(ii) the Depositary fails to receive the documentation required by the Deposit
Agreement or reasonably determines it is not practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall reasonably determine whether
it is lawful and practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public and private sale)
as it may reasonably deem practicable. The Depositary shall, upon such sale,
convert and distribute as promptly as practicable the proceeds of such sale (net
of applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and taxes) upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to make any rights available to Holders or to arrange for
the sale of the rights upon the terms described above, the Depositary shall
allow such rights to lapse. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise, or
(iii) the content of any materials provided by the Company and forwarded to the
ADR Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such
A-22
securities to Holders and to sell the securities represented by such rights, the
Depositary will not distribute such rights to the Holders unless and until a
registration statement under the Securities Act (or other applicable law)
covering such offering is in effect. In the event that the Company, the
Depositary or the Custodian shall be required to withhold and does withhold from
any distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders of ADSs
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges. Because the law of The Netherlands presently does
not contemplate the issuance of rights in negotiable form and the possibility of
such issuance is unlikely, a liquid market for rights may not exist, and this
may adversely affect (1) the ability of the Depositary to dispose of such rights
or (2) the amount the Depositary would realize upon disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
A-23
be acquired upon the exercise of such rights or to endeavor to have any such
registration statement declared effective.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall, as promptly as
practicable, distribute the property so received to the Holders of record, as of
the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may reasonably deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and reasonable expenses incurred by,
the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
may reasonably deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may reasonably deem practicable and shall (i)
cause the proceeds of such sale, if any, to be converted
A-24
into Dollars and (ii) distribute, as promptly as practicable, the proceeds of
such conversion received by the Depositary (net of (a) applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes)
to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon its reasonable
determination that such proposed redemption is practicable, the Depositary shall
mail by first class airmail postage prepaid to each Holder a notice setting
forth the Company's intention to exercise the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. Upon receipt of
confirmation that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall, as promptly as
practicable, convert, transfer, distribute the proceeds (net of applicable (a)
fees and charges of, and reasonable expenses incurred by, the Depositary, and
(b) taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof upon the terms of the Deposit Agreement. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be reasonably determined by the Depositary.
The redemption price per ADS shall be the dollar equivalent of per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of the Deposit
Agreement and the applicable fees and charges of, and expenses incurred by, the
A-25
Depositary, and taxes) multiplied by the number of Units or Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law and
the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS
A-26
Record Date in respect of such meeting or solicitation of consent or proxy. The
Depositary shall if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least 30 days prior to the date of
such vote or meeting), at the Company's expense and provided no U.S. legal
prohibitions exist, mail to Holders: (a) such notice of meeting or solicitation
of consent or proxy, (b) a statement that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
provisions of this Deposit Agreement, the Articles of Association of the Company
and the provisions of or governing the Deposited Securities (which provisions,
if any, shall be summarized in pertinent part and provided to the Depositary in
English by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's ADSs, and (c) a brief statement as to the manner in
which such instructions may be given. Voting instructions may be given, only in
respect of a number of ADSs representing an integral number of Shares or other
Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the
ADS Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of this Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by such Holder's ADSs
in accordance with such instructions. Shares or other Deposited Securities for
which no specific voting instructions are received by the Depositary from the
Holder shall not be voted.
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Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions or deemed instructions from Holders. If voting
instructions are received by the Depositary from any Holder on or before the
date established by the Depositary for the receipt of such instructions, which
are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Shares or other Deposited
Securities for which no specific voting instructions are received by the
Depositary from the Holder shall not be voted.
The Depositary shall use its best efforts, if requested in writing by
the Company prior to the mailing to Holders of such meeting materials, to
deliver, at least two business days prior to the date of such meeting, to the
Company, to the attention of its Secretary, copies of all instructions received
from Holders in accordance with which the Depositary will vote, or cause to be
voted, the Deposited Securities represented by the ADSs evidenced by such
Receipts at such meeting. Delivery of instructions will be made at the expense
of the Company (unless otherwise agreed in writing by the Company and the
Depositary).
Notwithstanding anything else contained in this Deposit Agreement, the
Depositary shall not have any obligation to take any action with respect to any
meeting, or solicitation of consents or proxies, of holders of Shares or other
Deposited Securities if the taking
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of such action would violate U.S. laws. The Company agrees to take any and all
actions reasonably necessary to enable Holders and Beneficial Owners to exercise
the voting rights accruing to the Shares or other Deposited Securities and to
deliver to the Depositary an opinion of the Company's U.S. counsel addressing
any actions requested to be taken if requested by the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of
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newly deposited Shares, with necessary modifications to the form of Receipt
contained in this Exhibit A to the Deposit Agreement, specifically describing
such new Deposited Securities or corporate change. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of satisfactory
legal documentation contemplated in the Deposit Agreement, sell such securities
at public or private sale, at such place or places and upon such terms as it may
reasonably deem proper and may allocate the net proceeds of such sales (net of
(a) fees and charges of, and reasonable expenses incurred by, the Depositary and
(b) taxes) for the account of the Holders otherwise entitled to such securities
and distribute the net proceeds so allocated as promptly as practicable as in
the case of a distribution received in cash pursuant to the Deposit Agreement.
The Depositary shall not have any obligation to make the determination of the
lawfulness or feasibility of making such distinction available to Holders in
general or to any Holder in particular, nor shall the Depositary have any
responsibility for any such determination made by any third party. The
Depositary shall not be responsible for (i) any foreign exchange exposure or
loss incurred in connection with such sale, or (ii) any liability to the
purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company nor any of
their respective officers, directors, employees, agents or affiliates shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing
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required by the terms of the Deposit Agreement and this Receipt, by reason of
any provision of any present or future law or regulation of the United States,
The Netherlands or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or
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presented by the proper party or parties. No disclaimer of liability under the
Securities Act is intended by any provision of the Deposit Agreement or this
Receipt.
(20) Standard of Care. The Company and its agents assume no obligation
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
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(21) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably
A-33
request. Any such successor depositary shall promptly mail notice of its
appointment to such Holders. Any corporation into or with which the Depositary
may be merged or consolidated shall be the successor of the Depositary without
the execution or filing of any document or any further act.
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS(s), to consent
and agree to such amendment or
A-34
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and this Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, or
rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 90 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to
A-35
the date fixed for such termination. On and after the date of termination of the
Deposit Agreement, the Holder will, upon surrender of such Holders' Receipt(s)
at the Principal Office of the Depositary, upon the payment of the charges of
the Depositary for the surrender of ADSs referred to in Article (2) hereof and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes or governmental charges, be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold
A-36
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the Receipts and the
Shares, the Deposited Securities and the ADSs, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity
A-37
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) accompanied
by or subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (w) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, in light of the security and liquidity of the
collateral, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the
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Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems reasonably appropriate. The Depositary may retain
for its own account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not earnings thereon,
shall be held for the benefit of the Holders (other than the Applicant) as
security for the performance of the Applicant's obligations for the Depositary
in connection with a Pre-Release Transaction, including the Applicant's
obligation to deliver Shares or ADSs upon termination of a Pre-Release
Transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities under the Deposit Agreement).
A-39
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name:
----------------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian, the
person executing the endorsement must give his/her
full title in such capacity and proper evidence of
authority to act in such capacity, if not on file
with the Depositary, must be forwarded with this
Receipt.
All endorsements or assignments of Receipts must
be guaranteed by a member of a Medallion Signature
Program approved by the Securities Transfer
Association, Inc.
A-40
SIGNATURE GUARANTEED
A-41
Legends
The Receipts issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the Receipt: "This Receipt
evidences American Depositary Shares representing partial entitlement' Ordinary
Shares, nominal value EUR 2.00, of ▇▇▇▇ ▇▇▇▇▇ ▇.▇. and as such do not entitle
the holders thereof to the same per-share entitlement as other Ordinary Shares
(which are "full entitlement" Ordinary Shares) issued and outstanding at such
time. The American Depositary Shares represented by this Receipt shall entitle
holders to distributions and entitlements identical to other American Depositary
Shares when the Ordinary Shares represented by such American Depositary Shares
become "full entitlement" Ordinary Shares.
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
---------------------------------------- ------------------------------------- -------------------------------------
Service Rate By Whom Paid
---------------------------------------- ------------------------------------- -------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or party receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and fraction thereof) surrended withdrawal.
cash against surrender of
ADSs
(3) Distribution of cash No fee.
dividends.
(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or Person to whom distribution is
(i.e., upon sale of rights fraction thereof) held. made.
and other entitlements)
(5) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) issued, unless
other free stock prohibited by the exchange upon
distributions, or (ii) which the ADSs are listed.
exercise of rights.
(6) Transfer of ADRs. $1.50 per Certificate presented. Person presenting certificate for
transfer.
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and reasonable expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities,
ADSs and ADRs; and
(vi) the fees and reasonable expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.