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PETROLEUM GEO-SERVICES ASA
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ISSUED AND OUTSTANDING UNDER THE TERMS OF
THE DEPOSIT AGREEMENT, DATED AS OF MAY 25, 1993,
AS AMENDED BY THE FIRST AND SECOND AMENDMENTS THERETO
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Third Amendment
to
Deposit Agreement
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Dated as of [_____], 2008
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Table of Contents
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Page
ARTICLE I
DEFINITIONS..............................................................................................2
SECTION 1.01 Definitions...................................................................2
SECTION 1.02 Effective Date................................................................2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT..........................................................................2
SECTION 2.01 Deposit Agreement.............................................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners.......................3
SECTION 2.03 Definitions in the Deposit Agreement..........................................3
SECTION 2.04 Fees and Charges of Depositary................................................4
SECTION 2.05 Voting; Electronic Accessibility to Information;
Notices and Reports ..........................................................6
SECTION 2.06 Certain Rights of the Depositary; Limitations................................12
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..........................................................................13
SECTION 3.01 ADR Amendment................................................................13
SECTION 3.02 Charges of Depositary........................................................22
ARTICLE IV
AMENDMENTS TO THE FEE SCHEDULE.........................................................................22
SECTION 4.01 Amendment to Fee Schedule....................................................22
ARTICLE V
REPRESENTATIONS AND WARRANTIES.........................................................................22
SECTION 5.01 Representations and Warranties...............................................22
SECTION 5.02 Representations and Warranties of the Depositary.............................23
ARTICLE VI
MISCELLANEOUS..........................................................................................24
SECTION 6.01 New ADRs.....................................................................24
SECTION 6.02 Notice of Amendment to Holders of ADSs.......................................24
SECTION 6.03 Indemnification..............................................................24
SECTION 6.04 Ratification.................................................................25
SECTION 6.05 Governing Law................................................................25
SECTION 6.06 Counterparts.................................................................25
EXHIBIT A
FORM OF ADR...........................................................................................A-1
EXHIBIT B
FEE SCHEDULE..........................................................................................B-2
THIRD AMENDMENT TO DEPOSIT AGREEMENT
THIRD AMENDMENT TO DEPOSIT AGREEMENT, dated as of [_____], 2008 (the
"Amendment"), by and among PETROLEUM GEO-SERVICES ASA, a corporation
incorporated and existing under the laws of the Kingdom of Norway (the
"Company"), CITIBANK, N.A., a national banking association organized under the
laws of the United States of America (the "Depositary"), and all Holders and
Beneficial Owners (as hereinafter defined) from time to time of American
Depositary Shares evidenced by American Depositary Receipts issued and
outstanding under the Deposit Agreement, dated as of May 25, 1993, as
subsequently amended by the First and Second Amendments thereto.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary previously entered into that
certain Deposit Agreement, dated as of May 25, 1993, as amended by the First
Amendment to Deposit Agreement, dated as of April 24, 1997, as further amended
by the Second Amendment to Deposit Agreement, dated as of July 20, 2007 (as so
amended and supplemented, the "Deposit Agreement"), for the creation of American
Depositary Shares ("ADSs") representing the Shares (as defined in the Deposit
Agreement) deposited thereunder and for the execution and delivery of American
Depositary Receipts ("ADRs") in respect of the American Depositary Shares; and
WHEREAS, the Company desires to amend Section 5.09 of the Deposit
Agreement, the ADRs currently outstanding, the form of ADR annexed to the
Deposit Agreement, and the Fee Schedule annexed to the Deposit Agreement to
enable the Depositary to charge certain additional fees in respect of the ADSs;
and
WHEREAS, the Company and the Depositary desire to enable the distribution
of the Company's notices, reports, communications, voting materials and voting
instructions by electronic means; and
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WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement, the form of ADR annexed to the Deposit Agreement as Exhibit A, the
ADRs issued and outstanding as of the date hereof, and the Fee Schedule annexed
to the Deposit Agreement as Exhibit B for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the ADRs currently outstanding, the
form of ADR annexed as Exhibit A to the Deposit Agreement, and the Fee Schedule
annexed to the Deposit Agreement as Exhibit B as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean the
later to occur of (i) the expiration of 30 days after notice of this Amendment
has been given to Holders of outstanding ADRs or (ii) the date upon which the
Commission declares effective the Post-Effective Amendment No. 1 to Form F-6
Registration Statement (Registration No. 333-144741) pursuant to which this
Amendment has been filed with the Commission.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to
the term "Deposit Agreement" shall, as of the Effective Date, refer to the
Deposit Agreement, dated as of May 25, 1993, as amended by the First Amendment
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to Deposit Agreement, dated as of April 24, 1997, as amended by the Second
Amendment to Deposit Agreement, dated as of July 20, 2007, as amended by this
Amendment, and as further amended and supplemented from time to time after the
Effective Date in accordance with the terms of the Deposit Agreement.
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners. From
and after the Effective Date, the Deposit Agreement as amended by this Amendment
shall be binding on all Holders and Beneficial Owners of ADSs issued and
outstanding as of the Effective Date and on all Holders and Beneficial Owners of
ADSs issued and outstanding after the Effective Date.
SECTION 2.03 Definitions in the Deposit Agreement.
(a) Section 1.01 of the Deposit Agreement, the definition of "American
Depositary Shares" is hereby amended and restated in its entirety to read as
follows:
"Section 1.01. American Depositary Share(s) / ADS(s). The terms
"American Depositary Share(s)" and "ADS(s)" shall mean the rights
and interests evidenced by Receipts issued hereunder in the
Deposited Securities granted to Holders and Beneficial Owners of
ADSs pursuant to the terms of the Deposit Agreement. Each ADS shall
represent one Share, provided, however, that if there shall occur a
distribution upon Deposited Securities covered by Section 4.04 or a
change in Deposited Securities covered by Section 4.09 with respect
to which additional ADSs are not issued and delivered, the term
ADS(s) shall thereafter represent the number of Shares or other
Deposited Securities determined in accordance with such Sections."
(b) Section 1.12 of the Deposit Agreement, the definition of "Receipts" is
hereby amended and restated in its entirety to read as follows:
"Section 1.12. Receipt(s) / ADR(s). The terms "Receipt(s)" and
"ADR(s)" shall mean the American Depositary Receipts issued by the
Depositary under the Deposit Agreement to evidence ADSs. A Receipt
may evidence any number of ADSs, as such ADRs may be amended from
time to time in accordance with the Deposit Agreement."
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(c) Article I of the Deposit Agreement is hereby further amended by
inserting the following definitions therein in the appropriate alphabetical
order and renumbering the defined terms in Article I of the Deposit Agreement
accordingly:
"Beneficial Owner. The term "Beneficial Owner" shall mean as to any
American Depositary Share, any person or entity having a beneficial
interest deriving from the ownership of such American Depositary
Share. A Beneficial Owner of American Depositary Shares may or may
not be the Holder of the Receipt(s) evidencing such American
Depositary Shares. A Beneficial Owner shall be able to exercise any
right or receive any benefit hereunder solely through the person who
is the Holder of the Receipt(s) evidencing the American Depositary
Shares owned by such Beneficial Owner.
DTC. The term "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry settlement system
for securities traded in the United States and, as such, the
custodian for the securities of DTC Participants (as hereinafter
defined) maintained in DTC, and any successor thereto.
DTC Participant. The term "DTC Participant" shall mean any financial
institution (or any nominee of such institution) having one or more
participant accounts with DTC for receiving, holding and delivering
the securities and cash held in DTC.
Holder. The term "Holder" shall mean the person in whose name a
Receipt is registered on the books of the Depositary (or the
Registrar, if any) maintained for such purpose. A Holder may or may
not be a Beneficial Owner. If a Holder is not the Beneficial Owner
of the American Depositary Shares evidenced by the Receipt
registered in its name, such Holder shall be deemed to have all
requisite authority to act on behalf of the Beneficial Owners of the
American Depositary Shares evidenced by such Receipt."
SECTION 2.04 Fees and Charges of Depositary.
(a) Section 5.09 of the Deposit Agreement is hereby amended and restated
in its entirety, as of the Effective Date, to read as follows:
"The Company, the Holders, the Beneficial Owners, and persons
depositing Shares or surrendering ADSs for cancellation and
withdrawal of Deposited Securities shall be required to pay to the
Depositary the Depositary's fees and related charges identified as
payable by them respectively in the Fee Schedule attached hereto as
Exhibit B. All fees and charges so payable may, at any time and from
time to time, be changed by agreement between the Depositary and the
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Company, but, in the case of fees and charges payable by Holders and
Beneficial Owners, only in the manner contemplated in Section 6.01.
The Depositary shall provide, without charge, a copy of its latest
fee schedule to any Holder or Beneficial Owner upon request.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal
of Deposited Securities will be charged by the Depositary to the
person to whom the ADSs so issued are delivered (in the case of ADS
issuances) and to the person who delivers the ADSs for cancellation
to the Depositary (in the case of ADS cancellations). In the case of
ADSs issued by the Depositary into DTC or presented for surrender to
the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the
ADSs from the Depositary or the DTC Participant(s) surrendering the
ADSs to the Depositary for cancellation, as the case may be, on
behalf of the Beneficial Owner(s) and will be charged by the DTC
Participant(s) to the account(s) of the applicable Beneficial
Owner(s) in accordance with the procedures and practices of the DTC
Participant(s) as in effect at the time. Depositary fees in respect
of distributions are payable to the Depositary by Holders as of the
applicable record date established by the Depositary. In the case of
distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In
the case of distributions other than cash, the Depositary will
invoice the applicable Holders as of the record date established by
the Depositary. For ADSs held through DTC, the Depositary fees for
distributions other than cash are charged by the Depositary to the
DTC Participants in accordance with the procedures and practices
prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom
they hold ADSs.
The Depositary may reimburse the Company for certain expenses
incurred by the Company in respect of the ADR program established
pursuant to the Deposit Agreement upon such terms and conditions as
the Company and the Depositary may agree from time to time. The
Company shall pay to the Depositary such fees and charges and
reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time.
Responsibility for payment of such charges and reimbursements may
from time to time be changed by agreement between the Company and
the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the
Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
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The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the
Deposit Agreement. As to any Depositary, upon the resignation or
removal of such Depositary as described in Section 5.04, such right
shall extend for those fees, charges and expenses incurred prior to
the effectiveness of such resignation or removal."
(b) All references made in the Deposit Agreement to the fees and charges
of the Depositary shall, as of the Effective Date, refer to the fees and charges
set forth in the Fee Schedule annexed as Exhibit B to this Amendment.
SECTION 2.05 Voting; Electronic Accessibility to Information; Notices and
Reports.
(a) Section 4.08 of the Deposit Agreement is hereby amended, as of the
Effective Date, by deleting such section in its entirety and inserting the
following in its stead:
"(a) Distribution to Holders. The Company shall send written
notice of any meeting of shareholders to the Depositary at least
four weeks (or such other time period as may be approved by the
Company's shareholders in accordance with its Articles of
Association and Norwegian law) prior to the relevant meeting. Upon
receipt of such notice from the Company, the Depositary shall
promptly thereafter, but in any event within five Business Days (the
term "Business Day" shall mean each weekday that is not (i) a day on
which banking institutions in the Borough of Manhattan, the City of
New York are authorized or obligated by law or executive order to
close or (ii) a day on which the market(s) in which Receipts are
traded are closed) of receipt of such notice of meeting, distribute
to all Holders a notice (the "Notice") containing (A) the
information (or a summary thereof in a form prepared by the Company)
received by the Depositary in connection with such meeting,
including, if applicable, the agenda for the meeting and (B) a
statement that Holders, in their capacity as Beneficial Owners or
acting on behalf of one or more named Beneficial Owners, as of the
close of business on the date specified as the record date for
determining Holders entitled to vote at such meeting (the "Record
Date"), will be entitled, subject to applicable provisions of
Norwegian law and the Company's Articles of Association (the
relevant provisions of which will be adequately summarized in the
Notice in a form provided by the Company) and to the provisions of
the Deposit Agreement and the Deposited Securities, to instruct the
Depositary as to the exercise of the voting rights of such
Beneficial Owners, if any, pertaining to the Deposited Securities
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represented by their respective American Depositary Shares by
completing and returning to the Depositary by the date specified in
such Notice either (x) a request for admission, which may be
delivered in physical or electronic form (an "Admission Request"),
enabling such Beneficial Owner to gain admission to such meeting in
accordance with paragraph (b) of this Section 4.08 or (y) proxy or
voting instructions, which may be delivered to the Depositary in
physical or electronic form ("Voting Instructions"), pursuant to
which a Holder (acting, as the case may be, as Beneficial Owner of
ADSs or as proxy on behalf of one or more Beneficial Owners of ADSs
named in a certification of beneficial ownership) may appoint the
Depositary or some other person as proxy with power of substitution
to vote at such meeting in accordance with such Voting Instructions
and with paragraph (c) of this Section 4.08. If requested by the
Company, the Depositary may request that any Holder surrendering
ADRs for cancellation, at any time immediately preceding the date of
the meetings of shareholders, confirm to the Depositary and the
Company that such person has not and will not instruct the
Depositary to vote the Deposited Securities evidenced by such
Holder's ADSs.
Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law or
regulations, in lieu of distribution of the materials provided to
the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, stockholders of the Company, to distribute
to the Holders a notice that provides Holders with, or otherwise
publicize to Holders, instructions on how to retrieve such materials
or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for
requesting copies of the materials).
(b) Attendance at Meeting in Person. Upon receipt by the
Depositary of (i) a duly completed Admission Request and (ii) such
evidence of beneficial ownership as shall be reasonably satisfactory
to the Depositary, the Depositary shall, as promptly as practicable
and in any event at least two working days prior to the date of such
meeting, (x) notify the Company in writing of a Beneficial Owner's
intention to attend such shareholders' meeting (in person or by
proxy authorizing a person other than the Depositary, the Custodian
or any of their respective agents to exercise voting rights on
behalf of such Beneficial Owner) to vote, to ask questions and
otherwise to participate in such meeting and (y) cause the
confirmation of beneficial ownership described in paragraph (d) of
this Section 4.08 to be delivered to the Company and to such
Beneficial Owner at the address specified by such Beneficial Owner
in accordance with paragraph (d) of this Section 4.08.
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(c) Exercise of Voting Rights Through the Depositary. Upon
receipt by the Depositary of duly completed Voting Instructions by
the date set therefor in the Notice (which date shall, unless the
Depositary elects to grant additional time to return such Voting
Instructions, be at least ten Business Days prior to the date of the
relevant shareholders' meeting) authorizing the Depositary, the
Custodian or any of their respective agents to exercise voting
rights on behalf of Beneficial Owners, the Depositary shall (i) as
promptly as practicable but in any event at least two working days
prior to such shareholders' meeting, cause a statement that such
Beneficial Owners intend to vote at such meeting, together with each
such Beneficial Owner's name and address and the confirmation of
beneficial ownership described in paragraph (d) of this Section
4.08, to be delivered to the Company; (ii) notify the Company in
writing of the Depositary's or the Custodian's or any of their
respective agent's intention to attend such shareholders' meeting on
behalf of such Beneficial Owners and shall cause confirmation of
their authority in that respect to be delivered to the Company; and
(iii) endeavor, insofar as practicable and permitted under any
applicable provisions of Norwegian law and the Company's Articles of
Association, to cause to be voted, either in person at the meeting
or by duly appointing a proxy to appear on its behalf at the
meeting, the relevant Deposited Securities in accordance with the
specific instructions set forth in such Voting Instructions. 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, cause to be voted or otherwise attempt to
exercise the right to vote such Deposited Securities other than in
accordance with such voting instructions.
(d) Confirmation of Beneficial Ownership. With respect to each
of the Voting Instructions or Admission Request (each with evidence
of beneficial ownership) received by the Depositary from a Holder
that is a Beneficial Owner or acting on behalf of a Beneficial Owner
wishing to exercise voting rights pursuant to paragraphs (b) and (c)
of this Section 4.08, together with such evidence of beneficial
ownership as the Depositary may reasonably require, the Depositary
shall promptly deliver to the Company a document in substantially
the form of Exhibit C annexed hereto confirming that it has received
evidence (which may be delivered to the Depositary in physical or
electronic form) that such person is the Beneficial Owner of such
number of Shares held by the Depositary as correspond to the number
of American Depositary Shares owned by such person. A statement that
such Beneficial Owner intends to vote at a shareholders' meeting (as
described in paragraphs (b) and (c) of this Section 4.08), together
with such Beneficial Owner's name and address and the confirmation
of beneficial ownership, must be received by the Company prior to
8
the expiration of the time limit therefor as set forth in the
Company's notice of such shareholders' meeting and the Company's
Articles of Association (currently at least two working days prior
to the date of such meeting). In addition, Beneficial Owners who
wish to attend the shareholders' meeting in person must present the
confirmation of beneficial ownership at the meeting.
(e) Exercise of Voting Rights as Shareholder. Holders and
Beneficial Owners of ADSs who wish to exercise their voting rights
directly as shareholders (rather than as ADR Holders through the
services of the Depositary) will be entitled to do so, subject to
the requirements of Norwegian law and the Company's Articles of
Association, upon timely surrender to the Depositary of ADSs for
cancellation (in accordance with the terms of Section 2.05 thereof)
and re-registration of the Deposited Securities in the name of the
Holder or Beneficial Owner so surrendering the ADSs.
(f) Obligation of Depositary. The Company and the Depositary
agree that in the event the Depositary does not receive any of (i)
the notice from the Company, (ii) the Admission Request or (iii) the
Voting Instructions on or prior to the date specified therefor in
this Section 4.08, the Depositary shall have no obligation to
distribute or forward, as the case may be, such notice or
instruction card or prepare the applicable confirmation of
beneficial ownership.
(g) Charges. The Depositary will not charge Holders for the
voting services described in this Section 4.08.
(h) Amendment of Voting Procedures. There can be no assurance
that any amendments, modifications or additional voting procedures
upon which the Depositary and the Company may agree pursuant to
Section 6.01 of this Agreement will not limit the practical ability
of Beneficial Owners of Deposited Securities to exercise voting
right in respect of the foregoing. The Depositary and the Company
agree to use reasonable efforts to make and maintain arrangements
(in addition to or in substitution of the arrangements described in
this Section 4.08) to enable Beneficial Owners to vote the Deposited
Securities underlying their ADSs, except as such efforts may be
limited by the right of the Company's shareholders to amend its
Articles of Association and applicable law."
(b) Section 4.10 of the Deposit Agreement is hereby amended and restated
in its entirety, as of the Effective Date, to read as follows:
"Available Information. The Company publishes the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its
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internet website or through an electronic information delivery
system generally available to the public in the Company's primary
trading market. The electronic information delivery system the
Company intends to use for the publication of such reports is Hugin
(or any successor thereof). As of the date hereof the Company's
internet website is ▇▇▇.▇▇▇.▇▇▇. The information so published by the
Company may not be in English, except to the extent that the Company
is required, in order to maintain its exemption from the Exchange
Act reporting obligations pursuant to Rule 12g3-2(b), to translate
such information into English (or provide summaries of such
information in English) to the extent contemplated in the
instructions to Rule 12g3-2(e). The information so published by the
Company cannot be retrieved from the Commission's internet website,
and cannot be inspected or copied at the public reference facilities
maintained by the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇."
(c) Section 4.11 of the Deposit Agreement is hereby amended and restated
in its entirety, as of the Effective Date, to read as follows:
"Reports. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company
which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities
and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall, at the request and
expense of the Company, also distribute to Holders copies of such
reports when furnished by the Company pursuant to Section 5.06."
(d) The last sentence of the third paragraph of Section 5.04 of the
Deposit Agreement is hereby amended, as of the Effective Date, by deleting such
sentence in its entirety and inserting the following in its stead:
"Any such successor depositary shall promptly distribute notice of
its appointment to the Holders of Receipts."
(e) The last sentence of Section 5.06 of the Deposit Agreement is hereby
amended, as of the Effective Date, by deleting such sentence in its entirety and
inserting the following in its stead:
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"The Depositary will, at the Company's expense, arrange for the
prompt transmittal by any Custodian to the Depositary of such
notices and any other reports and communications which are made
generally available by the Company to Norwegian holders of its
Shares and, at the request and expense of the Company, arrange for
the distribution thereof to Holders of Receipts."
(f) The first sentence of Section 6.02 of the Deposit Agreement is hereby
amended, as of the Effective Date, by deleting such sentence in its entirety and
inserting the following in its stead:
"The Depositary shall at any time at the direction of the Company
terminate this Deposit Agreement by distributing 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."
(g) Section 7.05 of the Deposit Agreement is hereby amended and restated
in its entirety, as of the Effective Date, to read as follows:
"Notices. Any and all notices to be given to the Company shall be
deemed to have been duly given if personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter,
addressed to Petroleum Geo-Services A/S, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: General Counsel, or at such other place
which the Company may designate by giving notice thereof in writing
to the Depositary and the Custodian.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air
carrier or cable, telex or facsimile transmission, confirmed by
letter, addressed to Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ U.S.A., Attention: ADR Department, or to any other
address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to
have been duly given if (a) personally delivered or sent by mail or
cable, telex or facsimile transmission, confirmed by letter,
addressed to such Holder at the address of such Holder as it appears
on the books of the Depositary or, if such Holder shall have filed
with the Depositary a request that notices intended for such Holder
be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of
notification as an acceptable means of notification under the terms
of the Deposit Agreement, by means of electronic messaging addressed
for delivery to the e-mail address designated by the Holder for such
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purpose. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of the Deposit Agreement. Failure
to notify a Holder or any defect in the notification to a Holder
shall not affect the sufficiency of notification to other Holders or
to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in
the case of a cable, telex or facsimile transmission) is deposited,
postage prepaid, in a post-office letter box. The Depositary or the
Company may, however, act upon any cable, telex or facsimile
transmission received by it from the other or from any Holder of a
Receipt, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as
aforesaid.
Delivery of a notice by means of electronic messaging shall be
deemed to be effective at the time of the initiation of the
transmission by the sender (as shown on the sender's records),
notwithstanding that the intended recipient retrieves the message at
a later date, fails to retrieve such message, or fails to receive
such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address
or for any other reason."
SECTION 2.06 Certain Rights of the Depositary; Limitations. Section 5.10
of the Deposit Agreement is hereby amended and restated in its entirety, as of
the Effective Date, to read as follows:
"Subject to the further terms and provisions of this Section 5.10,
Citibank, N.A. and its agents may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The
Depositary may issue Receipts against evidence of rights to receive
Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. The
Depositary shall not lend Shares or Receipts; provided, however,
that the Depositary reserves the right to (i) issue Receipts prior
to the receipt of Shares pursuant to Section 2.02 and (ii) deliver
Shares only upon the prior receipt and cancellation of Receipts
pursuant to Section 2.05, including Receipts which were issued under
(i) above but for which Shares may not have been received. The
12
Depositary may receive Receipts in lieu of Shares under (i) above.
Each such transaction shall be (a) subject to (x) a written
representation by the person or entity (the "Applicant") to whom
Receipts are issued that at the time the Depositary issues such
Receipts, the Applicant or its customer owns the Shares to be
delivered to the Depositary, or (y) such evidence of ownership of
Shares as the Depositary deems appropriate, (b) subject to a written
representation by the Applicant that it will hold such Shares in
trust for the Depositary until their delivery to the Depositary or
Custodian, reflect on its records the Depositary as owner of such
Shares and deliver such Shares upon the Depositary's request, (c) at
all times fully collateralized (marked to market daily) with cash,
United States government securities, or other collateral of
comparable safety and liquidity, (d) terminable by the Depositary on
not more than five (5) business days notice, and (e) subject to such
further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary shall limit the number of Receipts
issued by it under (i) above and outstanding at any time to thirty
percent (30%) of the Receipts issued by the Depositary and with
respect to which Shares are on deposit with the Depositary or
Custodian. The Depositary shall also set limits with respect to the
number of Receipts involved in transactions to be effected hereunder
with any one person on a case by case basis as it deems appropriate.
Collateral provided by an Applicant for Receipts or Shares, but not
the earnings thereon, shall be held for the benefit of the Holder.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing, including without
limitation earnings on the collateral."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The form of ADR attached as Exhibit A to the
Deposit Agreement and each of the ADRs issued and outstanding under the terms of
the Deposit Agreement is hereby amended as of the Effective Date by:
(a) deleting the first sentence of paragraph (1) thereof in its entirety
and inserting the following in its stead:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("ADRs"), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement, dated as of
May 25, 1993, as amended by the First Amendment to Deposit
Agreement, dated as of April 24, 1997, as amended by the Second
13
Amendment to Deposit Agreement, dated as of July 20, 2007, as
further amended by the Third Amendment to Deposit Agreement, dated
as of [_____], 2008 (as so amended and as further amended and
supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders and Beneficial
Owners from time to time of ADSs evidenced by ADRs, each of whom by
accepting an ADS becomes bound by all the terms and provisions
thereof."
(b) deleting paragraph (6) thereof in its entirety and inserting the
following in its stead:
"The Depositary shall charge the following fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(ii) Cancellation Fee: 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 fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements);
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs; and
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
14
(b) 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;
(c) 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;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
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 paragraph (21) of this ADR and as
contemplated in the Deposit Agreement. The Depositary will provide,
without charge, a copy of its latest fee schedule to Holder or
Beneficial Owner upon request.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal
of Deposited Securities will be charged by the Depositary to the
person to whom the ADSs so issued are delivered (in the case of ADS
issuances) and to the person who delivers the ADSs for cancellation
to the Depositary (in the case of ADS cancellations). In the case of
ADSs issued by the Depositary into DTC or presented for surrender to
the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the
ADSs from the Depositary or the DTC Participant(s) surrendering the
ADSs to the Depositary for cancellation, as the case may be, on
behalf of the Beneficial Owner(s) and will be charged by the DTC
Participant(s) to the account(s) of the applicable Beneficial
Owner(s) in accordance with the procedures and practices of the DTC
Participant(s) as in effect at the time. Depositary fees in respect
15
of distributions are payable to the Depositary by Holders as of the
applicable record date established by the Depositary. In the case of
distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In
the case of distributions other than cash, the Depositary will
invoice the applicable Holders as of the record date established by
the Depositary. For ADSs held through DTC, the Depositary fees for
distributions other than cash are charged by the Depositary to the
DTC Participants in accordance with the procedures and practices
prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom
they hold ADSs.
The Depositary may reimburse the Company for certain expenses
incurred by the Company in respect of the ADR program established
pursuant to the Deposit Agreement upon such terms and conditions as
the Company and the Depositary may agree from time to time. The
Company shall pay to the Depositary such fees and charges and
reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time.
Responsibility for payment of such charges and reimbursements may
from time to time be changed by agreement between the Company and
the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the
Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the
Deposit Agreement. As to any Depositary, upon the resignation or
removal of such Depositary as described in Section 5.04, Resignation
and Removal of the Depositary; Appointment of Successor Depositary,
such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal."
(c) deleting paragraph (9) thereof in its entirety and inserting the
following in its stead:
"Available Information. The Company publishes the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its
internet website or through an electronic information delivery
system generally available to the public in the Company's primary
trading market. The electronic information delivery system the
Company intends to use for the publication of such reports is Hugin
(or any successor thereof). As of the date of the Deposit Agreement
the Company's internet website is ▇▇▇.▇▇▇.▇▇▇. The information so
16
published by the Company may not be in English, except to the extent
that the Company is required, in order to maintain its exemption
from the Exchange Act reporting obligations pursuant to Rule
12g3-2(b), to translate such information into English (or provide
summaries of such information in English) to the extent contemplated
in the instructions to Rule 12g3-2(e). The information so published
by the Company cannot be retrieved from the Commission's internet
website, and cannot be inspected or copied at the public reference
facilities maintained by the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇."
(d) deleting paragraph (14) thereof in its entirety and inserting the
following in its stead:
"(a) Distribution to Holders. The Company shall send written
notice of any meeting of shareholders to the Depositary at least
four weeks (or such other time period as may be approved by the
Company's shareholders in accordance with its Articles of
Association and Norwegian law) prior to the relevant meeting. Upon
receipt of such notice from the Company, the Depositary shall
promptly thereafter, but in any event within five Business Days (the
term "Business Day" shall mean each weekday that is not (i) a day on
which banking institutions in the Borough of Manhattan, the City of
New York are authorized or obligated by law or executive order to
close or (ii) a day on which the market(s) in which Receipts are
traded are closed) of receipt of such notice of meeting, distribute
to all Holders a notice (the "Notice") containing (A) the
information (or a summary thereof in a form prepared by the Company)
received by the Depositary in connection with such meeting,
including, if applicable, the agenda for the meeting and (B) a
statement that Holders, in their capacity as Beneficial Owners or
acting on behalf of one or more named Beneficial Owners, as of the
close of business on the date specified as the record date for
determining Holders entitled to vote at such meeting (the "Record
Date"), will be entitled, subject to applicable provisions of
Norwegian law and the Company's Articles of Association (the
relevant provisions of which will be adequately summarized in the
Notice in a form provided by the Company) and to the provisions of
the Deposit Agreement and the Deposited Securities, to instruct the
Depositary as to the exercise of the voting rights of such
Beneficial Owners, if any, pertaining to the Deposited Securities
represented by their respective American Depositary Shares by
completing and returning to the Depositary by the date specified in
such Notice either (x) a request for admission, which may be
delivered in physical or electronic form (an "Admission Request"),
enabling such Beneficial Owner to gain admission to such meeting in
accordance with paragraph (b) of this Section 4.08 or (y) proxy or
17
voting instructions, which may be delivered to the Depositary in
physical or electronic form ("Voting Instructions"), pursuant to
which a Holder (acting, as the case may be, as Beneficial Owner of
ADSs or as proxy on behalf of one or more Beneficial Owners of ADSs
named in a certification of beneficial ownership) may appoint the
Depositary or some other person as proxy with power of substitution
to vote at such meeting in accordance with such Voting Instructions
and with paragraph (c) of this Section 4.08. If requested by the
Company, the Depositary may request that any Holder surrendering
ADRs for cancellation, at any time immediately preceding the date of
the meetings of shareholders, confirm to the Depositary and the
Company that such person has not and will not instruct the
Depositary to vote the Deposited Securities evidenced by such
Holder's ADSs.
Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law or
regulations in lieu of distribution of the materials provided to the
Depositary in connection with any meeting of, or solicitation of
consents or proxies from, stockholders of the Company, to distribute
to the Holders a notice that provides Holders with, or otherwise
publicize to Holders, instructions on how to retrieve such materials
or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for
requesting copies of the materials.
(b) Attendance at Meeting in Person. Upon receipt by the
Depositary of (i) a duly completed Admission Request and (ii) such
evidence of beneficial ownership as shall be reasonably satisfactory
to the Depositary, the Depositary shall, as promptly as practicable
and in any event at least two working days prior to the date of such
meeting, (x) notify the Company in writing of a Beneficial Owner's
intention to attend such shareholders' meeting (in person or by
proxy authorizing a person other than the Depositary, the Custodian
or any of their respective agents to exercise voting rights on
behalf of such Beneficial Owner) to vote, to ask questions and
otherwise to participate in such meeting and (y) cause the
confirmation of beneficial ownership described in paragraph (d) of
this Section 4.08 to be delivered to the Company and to such
Beneficial Owner at the address specified by such Beneficial Owner
in accordance with paragraph (d) of this Section 4.08.
(c) Exercise of Voting Rights Through the Depositary. Upon
receipt by the Depositary of a duly completed Voting Instructions by
the date set therefor in the Notice (which date shall, unless the
Depositary elects to grant additional time to return such Voting
Instructions, be at least ten Business Days prior to the date of the
relevant shareholders' meeting) authorizing the Depositary, the
18
Custodian or any of their respective agents to exercise voting
rights on behalf of Beneficial Owners, the Depositary shall (i) as
promptly as practicable but in any event at least two working days
prior to such shareholders' meeting, cause a statement that such
Beneficial Owners intend to vote at such meeting, together with each
such Beneficial Owner's name and address and the confirmation of
beneficial ownership described in paragraph (d) of this Section
4.08, to be delivered to the Company; (ii) notify the Company in
writing of the Depositary's or the Custodian's or any of their
respective agent's intention to attend such shareholders' meeting on
behalf of such Beneficial Owners and shall cause confirmation of
their authority in that respect to be delivered to the Company; and
(iii) endeavor, insofar as practicable and permitted under any
applicable provisions of Norwegian law and the Company's Articles of
Association, to cause to be voted, either in person at the meeting
or by duly appointing a proxy to appear on its behalf at the
meeting, the relevant Deposited Securities in accordance with the
specific instructions set forth in such Voting Instructions. 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, cause to be voted or otherwise attempt to
exercise the right to vote such Deposited Securities other than in
accordance with such voting instructions.
(d) Confirmation of Beneficial Ownership. With respect to each
of the Voting Instructions or Admission Request (each with evidence
of beneficial ownership) received by the Depositary from a Holder
that is a Beneficial Owner or acting on behalf of a Beneficial Owner
wishing to exercise voting rights pursuant to paragraphs (b) and (c)
of this Section 4.08, together with such evidence of beneficial
ownership as the Depositary may reasonably require, the Depositary
shall promptly deliver to the Company a document in substantially
the form of Exhibit C annexed hereto confirming that it has received
evidence (which may be delivered to the Depositary in physical or
electronic form) that such person is the Beneficial Owner of such
number of Shares held by the Depositary as correspond to the number
of American Depositary Shares owned by such person. A statement that
such Beneficial Owner intends to vote at a shareholders' meeting (as
described in paragraphs (b) and (c) of this Section 4.08), together
with such Beneficial Owner's name and address and the confirmation
of beneficial ownership, must be received by the Company prior to
the expiration of the time limit therefor as set forth in the
Company's notice of such shareholders' meeting and the Company's
Articles of Association (currently at least two working days prior
to the date of such meeting). In addition, Beneficial Owners who
wish to attend the shareholders' meeting in person must present the
confirmation of beneficial ownership at the meeting.
19
(e) Exercise of Voting Rights as Shareholder. Holders and
Beneficial Owners of ADSs who wish to exercise their voting rights
directly as shareholders (rather than as ADR Holders through the
services of the Depositary) will be entitled to do so, subject to
the requirements of Norwegian law and the Company's Articles of
Association, upon timely surrender to the Depositary of ADSs for
cancellation (in accordance with the terms of Section 2.05 thereof)
and re-registration of the Deposited Securities in the name of the
Holder or Beneficial Owner so surrendering the ADSs.
(f) Obligation of Depositary. The Company and the Depositary
agree that in the event the Depositary does not receive any of (i)
the notice from the Company, (ii) the Admission Request or (iii) the
Voting Instructions on or prior to the date specified therefor in
this Section 4.08, the Depositary shall have no obligation to
distribute or forward, as the case may be, such notice or
instruction card or prepare the applicable confirmation of
beneficial ownership.
(g) Charges. The Depositary will not charge Holders for the
voting services described in this Section 4.08.
(h) Amendment of Voting Procedures. There can be no assurance
that any amendments, modifications or additional voting procedures
upon which the Depositary and the Company may agree pursuant to
Section 6.01 of this Agreement will not limit the practical ability
of Beneficial Owners of Deposited Securities to exercise voting
right in respect of the foregoing. The Depositary and the Company
agree to use reasonable efforts to make and maintain arrangements
(in addition to or in substitution of the arrangements described in
this Section 4.08) to enable Beneficial Owners to vote the Deposited
Securities underlying their ADSs, except as such efforts may be
limited by the right of the Company's shareholders to amend its
Articles of Association and applicable law."
(e) deleting paragraph (16) thereof in its entirety and inserting the
following in its stead:
"Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting
materials, received from the Company which are both (a) received by
the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the
Company. The Depositary shall, at the request and expense of the
20
Company, distribute to Holders copies of such reports when furnished
by the Company pursuant to Section 5.06 of the Deposit Agreement."
(f) deleting paragraph (18) thereof in its entirety and inserting the
following in its stead:
"Subject to the further terms and provisions of this ▇▇▇▇▇▇▇▇▇ (▇▇),
▇▇▇▇▇▇▇▇, N.A. and its agents may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The
Depositary may issue Receipts against evidence of rights to receive
Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. The
Depositary shall not lend Shares or Receipts; provided, however,
that the Depositary reserves the right to (i) issue Receipts prior
to the receipt of Shares pursuant to Section 2.02 of the Deposit
Agreement and (ii) deliver Shares only upon the prior receipt and
cancellation of Receipts pursuant to Section 2.05 of the Deposit
Agreement, including Receipts which were issued under (i) above but
for which Shares may not have been received. The Depositary may
receive Receipts in lieu of Shares under (i) above. Each such
transaction shall be (a) subject to (x) a written representation by
the person or entity (the "Applicant") to whom Receipts are issued
that at the time the Depositary issues such Receipts, the Applicant
or its customer owns the Shares to be delivered to the Depositary,
or (y) such evidence of ownership of Shares as the Depositary deems
appropriate, (b) subject to a written representation by the
Applicant that it will hold such Shares in trust for the Depositary
until their delivery to the Depositary or Custodian, reflect on its
records the Depositary as owner of such Shares and deliver such
Shares upon the Depositary's request, (c) at all times fully
collateralized (marked to market daily) with cash, United States
government securities, or other collateral of comparable safety and
liquidity, (d) terminable by the Depositary on not more than five
(5) business days notice, and (e) subject to such further
indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will limit the number of Receipts issued
by it under (i) above and outstanding at any time to thirty percent
(30%) of the Receipts issued by the Depositary and with respect to
which Shares are on deposit with the Depositary or Custodian. The
Depositary will also set limits with respect to the number of
Receipts involved in transactions to be effected hereunder with any
one person on a case by case basis as it deems appropriate.
21
Collateral provided by an Applicant for Receipts or Shares, but not
the earnings thereon, will be held for the benefit of the Holder.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing, including without
limitation earnings on the collateral."
(g) deleting the first sentence of paragraph (22) in its entirety and
inserting the following in its stead:
"The Depositary shall, at any time at the written direction of the
Company, terminate the Deposit Agreement by distributing notice of
such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such
termination."
SECTION 3.02 Charges of Depositary. All references to the fees and charges
of the Depositary made in the form of ADR attached as Exhibit A to the Deposit
Agreement and in each of the ADRs outstanding, as of the Effective Date, under
the terms of the Deposit Agreement shall, as of the Effective Date, refer to the
fees and charges of the Depositary set forth in paragraph (6) of the Form of ADR
attached as Exhibit A to the Amendment and the Fee Schedule attached as Exhibit
B to the Amendment.
ARTICLE IV
AMENDMENTS TO THE FEE SCHEDULE
SECTION 4.01 Amendment to Fee Schedule. The Fee Schedule annexed to the
Deposit Agreement as Exhibit B is hereby amended and restated in its entirety,
as of the Effective Date, to read as Exhibit B attached hereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
22
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company 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; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in Norway,
neither of such agreements need to be filed or recorded with any court or other
authority in Norway, nor does any stamp or similar tax need be paid in Norway on
or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
SECTION 5.02 Representations and Warranties of the Depositary. The
Depositary represents and warrants to, and agrees with, the Company that this
Amendment, when executed and delivered by the Depositary, and the Deposit
Agreement and all other documentation executed and delivered by the Depositary
in connection therewith, will be and have been, respectively, duly and validly
authorized, executed and delivered by the Depositary, and constitute the legal,
valid and binding obligations of the Depositary, enforceable against 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.
23
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued after the Effective
Date, once such new ADRs are available, whether upon the deposit of Shares or
other Deposited Securities or upon the transfer, combination or split up of
existing ADRs, shall be substantially in the form of the specimen ADR attached
as Exhibit A hereto. However, ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR 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. The Depositary is authorized and directed to take any and all actions
deemed necessary to effect the foregoing.
SECTION 6.02 Notice of Amendment to Holders of ADSs. The Depositary is
hereby directed to distribute notices informing the Holders of ADSs (i) of the
terms of this Amendment, (ii) of the Effective Date of this Amendment, and (iii)
that the Holder of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 6.01 hereof, and (iv) that
copies of this Amendment may be retrieved from the Commission's website at
▇▇▇.▇▇▇.▇▇▇ and may be obtained from the Depositary and the Company upon
request.
SECTION 6.03 Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
24
SECTION 6.04 Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
SECTION 6.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 6.06 Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
PETROLEUM GEO-SERVICES ASA
By:
---------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
---------------------------
Name:
Title:
25
EXHIBIT A
Number ___________ CUSIP Number _________
American Depositary
Shares (Each American
Depositary Share
representing one (1)
fully paid Ordinary share
NOK 3 nominal value each)
[FORM OF FACE OF]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
PETROLEUM GEO-SERVICES ASA
(Incorporated under the laws of Norway)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (herein called the
"Depositary"), hereby certifies that is the owner of American Depositary Shares,
representing deposited shares, nominal value NOK 3 each, or evidence of the
right to receive such shares (herein called the "Shares"), of Petroleum
Geo-Services ASA, a corporation organized under the laws of Norway (herein
called the "Company"). At the date of the Deposit Agreement (as hereinafter
defined), each American Depositary Share represents rights attributable to 1
Share* deposited under the Deposit Agreement with the Custodians which at the
date of execution of the Deposit Agreement are Den Norske Bank, Oslo and
Christiania Bank og Kreditkasse.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of May 25,
1993, as amended by the First Amendment to Deposit Agreement, dated as of April
24, 1997, as amended by the Second Amendment to Deposit Agreement, dated as of
----------
* Subject to change as provided in Article IV of the Deposit Agreement.
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July 20, 2007, as further amended by the Third Amendment to Deposit Agreement,
dated as of [_____], 2008 (as so amended and as further amended and supplemented
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders and Beneficial Owners from time to time of ADSs
evidenced by ADRs, each of whom by accepting an ADS becomes bound by all the
terms and provisions thereof. The Deposit Agreement sets forth the rights of
Holders of the Receipts and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
principal offices of the Depositary and the Custodians. The statements made on
the face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are qualified in their entirety by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby made.
Terms defined in the Deposit Agreement and not otherwise defined herein have the
same defined meanings set forth in the Deposit Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment of the fee of the Depositary provided in Paragraph (6) of this Receipt
and of all taxes, duties and other governmental charges and fees payable in
connection herewith, and subject to the terms and conditions of the Deposit
Agreement and the Articles of Association of the Company, the Holder hereof is
entitled to delivery, to him or upon his order, of the Deposited Securities at
the time represented by the American Depositary Shares evidenced by this
Receipt. Delivery of such Deposited Securities may be made through VPS or by the
delivery of a certificate or certificates therefor, or of other appropriate
evidence of title thereto, properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him. Such delivery will
be made without unreasonable delay and, at the option of such Holder, either at
the office of a Custodian or at the Principal Office of the Depositary, provided
that the forwarding of Shares or other Deposited Securities for such delivery at
the Principal Office of the Depositary in the Borough of Manhattan, The City of
New York, shall be at the risk and expense of the Holder hereof.
(3) Transfers, Split-ups and Combinations. This Receipt is transferable on
the books of the Depositary by the Holder hereof in person or by duly authorized
attorney, upon surrender of this Receipt properly endorsed or accompanied by
proper instruments of transfer and duly stamped as may be required by law,
provided, however, that the Depositary after consultation with the Company may
dose the transfer books, at any time or from time to time, when deemed expedient
by it in connection with the performance of its duties under the Deposit
Agreement. This Receipt may be split into other Receipts or may be combined with
other Receipts into one Receipt representing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered. As a
condition precedent to the execution and delivery, registration of transfer,
split- up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary or a Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer, registration or conversion fee with respect thereto and payment
of any applicable fees as provided in Paragraph (6) of this Receipt, may require
the production of proof satisfactory to it as to the identity and genuineness of
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any signature and may also require compliance with any laws or governmental
regulations relating to American Depositary Receipts or to the withdrawal of
Deposited Securities.
The Depositary may refuse to execute and to deliver Receipts, register the
transfer of any Receipt or make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval, legal or beneficial ownership or other information as it may
deem necessary or proper or as the Company may reasonably require by written
request to the Depositary and each Custodian. After consultation with the
Company, the delivery of Receipts against deposits of particular Shares may be
withheld, or the delivery of Receipts against the deposit of Shares generally
may be suspended, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer of Receipts generally
may be suspended, during any period when the transfer books of the Depositary or
the Company are closed, if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be
suspended, except as required in connection with (i) temporary delays caused by
closing the transfer books of the Depositary or the Company (or the appointed
agent for the Company for the transfer and registration of Shares) or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary will not knowingly accept
for deposit under the Deposit Agreement any Shares which are required to be
registered under provisions of the Securities Act of 1933 prior to being offered
and sold publicly in the United States, unless a registration statement is in
effect as to such Shares. The Depositary will comply with written instructions
of the Company to not accept for deposit under the Deposit Agreement any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with securities laws in the United States.
(4) Liability of Holder for Taxes. If any tax or other governmental charge
shall become payable with respect to any Deposited Securities represented
hereby, such tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of transfer of this Receipt or any withdrawal of Deposited Securities
represented hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder hereof any part
or all of the Deposited Securities represented hereby, and may apply such,
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency.
(5) Agreements by Depositor. Any person presenting Shares for deposit or
any Holder of a Receipt may be required from time to time to file such proof of
citizenship or residence, exchange control approval, legal or beneficial
ownership, or such information relating to the registration on the books of the
Company of the Shares presented for deposit or other information, to execute and
deliver such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper or as the Company reasonably may
require by written request to the Depositary and each Custodian. Every person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares are validly issued, fully paid and
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non-assessable, and that the person making such deposit is duly authorized so to
do. Every such person will also be deemed to represent that the Shares presented
for deposit are not, and the Receipts issuable upon such deposit will not be
required to be registered under the provisions of the Securities Act of 1933
prior to being offered and sold publicly in the United States. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
(6) Charges of Depositary. The Depositary shall charge the following fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(ii) Cancellation Fee: 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 fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements);
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs; and
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) 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;
(c) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
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be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
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 paragraph (21) of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee schedule to
Holder or Beneficial Owner upon request.
Depositary fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented for surrender to the Depositary via DTC, the ADS issuance and
cancellation fees will be payable to the Depositary by the DTC Participant(s)
receiving the ADSs from the Depositary or the DTC Participant(s) surrendering
the ADSs to the Depositary for cancellation, as the case may be, on behalf of
the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the
account(s) of the applicable Beneficial Owner(s) in accordance with the
procedures and practices of the DTC Participant(s) as in effect at the time.
Depositary fees in respect of distributions are payable to the Depositary by
Holders as of the applicable record date established by the Depositary. In the
case of distributions of cash, the amount of the applicable Depositary fees is
deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash, the Depositary will invoice the applicable
Holders as of the record date established by the Depositary. For ADSs held
through DTC, the Depositary fees for distributions other than cash are charged
by the Depositary to the DTC Participants in accordance with the procedures and
practices prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
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Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.04, Resignation and Removal of the
Depositary; Appointment of Successor Depositary, such right shall extend for
those fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
(7) Title to Receipt. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this Receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
(9) Available Information. The Company publishes the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its internet
website or through an electronic information delivery system generally available
to the public in the Company's primary trading market. The electronic
information delivery system the Company intends to use for the publication of
such reports is Hugin (or any successor thereof). As of the date of the Deposit
Agreement the Company's internet website is ▇▇▇.▇▇▇.▇▇▇. The information so
published by the Company may not be in English, except to the extent that the
Company is required, in order to maintain its exemption from the Exchange Act
reporting obligations pursuant to Rule 12g3-2(b), to translate such information
into English (or provide summaries of such information in English) to the extent
contemplated in the instructions to Rule 12g3-2(e). The information so published
by the Company cannot be retrieved from the Commission's internet website, and
cannot be inspected or copied at the public reference facilities maintained by
the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
(10) Ownership Restrictions. The Holders acknowledge that the Company may
restrict transfers of Shares if such transfer would be in conflict with public
regulations or limitations and consequently in conflict with the interests of
the Company.
(11) Disclosure of Beneficial Ownership. Any Holder of a Receipt may be
required, from time to time, to file such proof of citizenship or residence,
legal or beneficial ownership, or other information requested by the Depositary
or the Company pursuant to Norwegian law. Any person, entity or group acting in
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concert who is a Holder of Receipts and who is entitled, and upon surrender of
such Receipts, to acquire directly or indirectly the beneficial ownership of
such number of Shares as shall exceed (together with any Share or additional
Receipts held by such person, entity or group) 10%, or such lesser percentage as
may be required to be disclosed from time to time under any law, regulation, or
practice of Norway, of the share capital or voting rights of the Company shall
promptly send to the Company at the address set forth in the notice provisions
of the Deposit Agreement, by registered or certified mail, the following
information:
(i) the background, and identity, residence, and citizenship
of, and the nature of such rights held by, such person and all other
persons by whom or on whose behalf the purchases have been or are to
be effected;
(ii) the number of Shares and Receipts which are beneficially
owned, directly or indirectly, by (i) such person, and (ii) each
associate of such person, giving the background, identity,
residence, and citizenship of each such associate; and
(iii) if any material change occurs in the facts set forth in
the statements to the Company, an amendment shall be transmitted,
within ten days after any such change occurs, to the Company setting
forth such changes.
Any person, entity or group who is a Holder of Receipts and who
beneficially owns (either directly or by virtue of the ownership of Receipts)
10% or more of the share capital or voting rights of the Company, shall promptly
send to the Company the information required in the preceding paragraph promptly
after a change of more than 5% in the shares of capital stock beneficially owned
by such Holder.
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Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: _______________________________ By:___________________________________
Authorized Officer Vice President
The address of the Corporate Agency Office of the Depositary is ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The Depositary's Corporate
Agency Office is different from its Principal Executive Office. Its Principal
Executive Office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights. Whenever the Custodian or
Depositary shall receive any cash dividend or other cash distribution on the
Deposited Securities, the Depositary will, if at the time of receipt thereof any
amounts received in a currency other than United States dollars can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and, subject to the provisions of the
Deposit Agreement, convert or cause to be converted such dividend or
distribution into United States dollars and shall distribute the amount thus
received to the Holders of Receipts entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that the amount distributed shall be
reduced by any amounts required to be withheld by the Company, its agent or the
Depositary or a Custodian on account of taxes. If in the judgment of the
Depositary amounts received in currency other than United States dollars may not
be converted on a reasonable basis into United States dollars transferable to
the United States, or may not be so convertible for all of the Holders of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion, if any, and distribution in United States dollars to the extent
permissible to the Holders of Receipts entitled thereto and may distribute the
balance of such currency received and not so convertible by the Depositary to,
or hold such balance for the respective accounts of, the Holders of Receipts
entitled thereto.
Whenever a Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary will cause the
securities or property received by such Custodian to be distributed to the
Holders of Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary deems equitable and practicable
for accomplishing such distribution; provided, however, that if in the opinion
of the Depositary such distribution cannot be made proportionately among the
Holders of Receipts entitled thereto, or if for any other reason the Depositary
deems such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale, at such place or places and upon such terms as it
may deem proper) of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale will be distributed by the
Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Depositary may,
with the Company's approval, and will, if the Company shall so request,
distribute to the Holders of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, converted into United States dollars if not in such
dollars (if such conversion may in the judgment of the Depositary be achieved on
a reasonable basis), to the Holders of Receipts entitled thereto. If additional
Receipts are not so distributed (except as provided in the preceding sentence),
each American Depositary Share shall thenceforth also represent the additional
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Shares distributed upon the Deposited Securities represented thereby.
Notwithstanding the foregoing, in the event that the Depositary determines that
a distribution in Shares may not legally be made to some or all Holders of
Receipts, the Depositary may sell such Shares and remit the proceeds thereof to
the Holders of Receipts entitled thereto as in the case of a distribution in
cash.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any nature, the Depositary shall, after consultation
with the Company, either (a) make such rights available to Holders of Receipts
by means of warrants or otherwise, if lawful and feasible, or (b) if making such
rights available is not lawful or not feasible, or if the rights represented by
such warrants or other instruments are not exercised and appear to be about to
lapse, sell such rights or warrants or other instruments at public or private
sale, at such place or places and upon such terms as the Depositary may deem
proper, and allocate the proceeds of any such sale for account of the Holders of
Receipts otherwise entitled thereto upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of exchange
restrictions, or the date of delivery of any Receipt or Receipts, or otherwise.
If the Depositary determines that it is not lawful and feasible to make any such
rights available to Holders or to sell any such rights as described above, the
Depositary will allow such rights to lapse. If the registration of the
securities to which such rights relate is required under the Securities Act of
1933, no rights shall be made available to Holders in the United States or to
any U.S. person (each as defined in Regulation S under the Securities Act of
1933) unless such securities are registered or exempt from registration under
such Act, provided, that the Company will have no obligation to file a
registration statement or endeavor to have a registration statement declared
effective.
(13) Record Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued with respect to the Deposited Securities, the
Depositary will fix a record date as close as practicable to the date
corresponding to the record date fixed by the Company in respect of the Shares
for the determination of the Holders of Receipts who shall be entitled to
receive such dividend, distribution or rights, or the net proceeds of the sale
thereof, subject to the provisions of the Deposit Agreement.
(14) Voting of Deposited Securities.
(a) Distribution to Holders. The Company shall send written notice of any
meeting of shareholders to the Depositary at least four weeks (or such other
time period as may be approved by the Company's shareholders in accordance with
its Articles of Association and Norwegian law) prior to the relevant meeting.
Upon receipt of such notice from the Company, the Depositary shall promptly
thereafter, but in any event within five Business Days (the term "Business Day"
shall mean each weekday that is not (i) a day on which banking institutions in
the Borough of Manhattan, the City of New York are authorized or obligated by
law or executive order to close or (ii) a day on which the market(s) in which
Receipts are traded are closed) of receipt of such notice of meeting, distribute
to all Holders a notice (the "Notice") containing (A) the information (or a
summary thereof in a form prepared by the Company) received by the Depositary in
connection with such meeting, including, if applicable, the agenda for the
meeting and (B) a statement that Holders, in their capacity as Beneficial Owners
or acting on behalf of one or more named Beneficial Owners, as of the close of
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business on the date specified as the record date for determining Holders
entitled to vote at such meeting (the "Record Date"), will be entitled, subject
to applicable provisions of Norwegian law and the Company's Articles of
Association (the relevant provisions of which will be adequately summarized in
the Notice in a form provided by the Company) and to the provisions of the
Deposit Agreement and the Deposited Securities, to instruct the Depositary as to
the exercise of the voting rights of such Beneficial Owners, if any, pertaining
to the Deposited Securities represented by their respective American Depositary
Shares by completing and returning to the Depositary by the date specified in
such Notice either (x) a request for admission, which may be delivered in
physical or electronic form (an "Admission Request"), enabling such Beneficial
Owner to gain admission to such meeting in accordance with paragraph (b) of this
Section 4.08 or (y) proxy or voting instructions, which may be delivered to the
Depositary in physical or electronic form ("Voting Instructions"), pursuant to
which a Holder (acting, as the case may be, as Beneficial Owner of ADSs or as
proxy on behalf of one or more Beneficial Owners of ADSs named in a
certification of beneficial ownership) may appoint the Depositary or some other
person as proxy with power of substitution to vote at such meeting in accordance
with such Voting Instructions and with paragraph (c) of this Section 4.08. If
requested by the Company, the Depositary may request that any Holder
surrendering ADRs for cancellation, at any time immediately preceding the date
of the meetings of shareholders, confirm to the Depositary and the Company that
such person has not and will not instruct the Depositary to vote the Deposited
Securities evidenced by such Holder's ADSs.
Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by law or regulations in lieu
of distribution of the materials provided to the Depositary in connection with
any meeting of, or solicitation of consents or proxies from, stockholders of the
Company, to distribute to the Holders a notice that provides Holders with, or
otherwise publicize to Holders, instructions on how to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials.
(b) Attendance at Meeting in Person. Upon receipt by the Depositary of (i)
a duly completed Admission Request and (ii) such evidence of beneficial
ownership as shall be reasonably satisfactory to the Depositary, the Depositary
shall, as promptly as practicable and in any event at least two working days
prior to the date of such meeting, (x) notify the Company in writing of a
Beneficial Owner's intention to attend such shareholders' meeting (in person or
by proxy authorizing a person other than the Depositary, the Custodian or any of
their respective agents to exercise voting rights on behalf of such Beneficial
Owner) to vote, to ask questions and otherwise to participate in such meeting
and (y) cause the confirmation of beneficial ownership described in paragraph
(d) of this Section 4.08 to be delivered to the Company and to such Beneficial
Owner at the address specified by such Beneficial Owner in accordance with
paragraph (d) of this Section 4.08.
(c) Exercise of Voting Rights Through the Depositary. Upon receipt by the
Depositary of a duly completed Voting Instructions by the date set therefor in
the Notice (which date shall, unless the Depositary elects to grant additional
time to return such Voting Instructions, be at least ten Business Days prior to
the date of the relevant shareholders' meeting) authorizing the Depositary, the
Custodian or any of their respective agents to exercise voting rights on behalf
of Beneficial Owners, the Depositary shall (i) as promptly as practicable but in
any event at least two working days prior to such shareholders' meeting, cause a
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statement that such Beneficial Owners intend to vote at such meeting, together
with each such Beneficial Owner's name and address and the confirmation of
beneficial ownership described in paragraph (d) of this Section 4.08, to be
delivered to the Company; (ii) notify the Company in writing of the Depositary's
or the Custodian's or any of their respective agent's intention to attend such
shareholders' meeting on behalf of such Beneficial Owners and shall cause
confirmation of their authority in that respect to be delivered to the Company;
and (iii) endeavor, insofar as practicable and permitted under any applicable
provisions of Norwegian law and the Company's Articles of Association, to cause
to be voted, either in person at the meeting or by duly appointing a proxy to
appear on its behalf at the meeting, the relevant Deposited Securities in
accordance with the specific instructions set forth in such Voting Instructions.
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, cause to be voted or otherwise attempt to exercise the right to vote such
Deposited Securities other than in accordance with such voting instructions.
(d) Confirmation of Beneficial Ownership. With respect to each of the
Voting Instructions or Admission Request (each with evidence of beneficial
ownership) received by the Depositary from a Holder that is a Beneficial Owner
or acting on behalf of a Beneficial Owner wishing to exercise voting rights
pursuant to paragraphs (b) and (c) of this Section 4.08, together with such
evidence of beneficial ownership as the Depositary may reasonably require, the
Depositary shall promptly deliver to the Company a document in substantially the
form of Exhibit C annexed hereto confirming that it has received evidence (which
may be delivered to the Depositary in physical or electronic form) that such
person is the Beneficial Owner of such number of Shares held by the Depositary
as correspond to the number of American Depositary Shares owned by such person.
A statement that such Beneficial Owner intends to vote at a shareholders'
meeting (as described in paragraphs (b) and (c) of this Section 4.08), together
with such Beneficial Owner's name and address and the confirmation of beneficial
ownership, must be received by the Company prior to the expiration of the time
limit therefor as set forth in the Company's notice of such shareholders'
meeting and the Company's Articles of Association (currently at least two
working days prior to the date of such meeting). In addition, Beneficial Owners
who wish to attend the shareholders' meeting in person must present the
confirmation of beneficial ownership at the meeting.
(e) Exercise of Voting Rights as Shareholder. Holders and Beneficial
Owners of ADSs who wish to exercise their voting rights directly as shareholders
(rather than as ADR Holders through the services of the Depositary) will be
entitled to do so, subject to the requirements of Norwegian law and the
Company's Articles of Association, upon timely surrender to the Depositary of
ADSs for cancellation (in accordance with the terms of Section 2.05 thereof) and
re-registration of the Deposited Securities in the name of the Holder or
Beneficial Owner so surrendering the ADSs.
(f) Obligation of Depositary. The Company and the Depositary agree that in
the event the Depositary does not receive any of (i) the notice from the
Company, (ii) the Admission Request or (iii) the Voting Instructions on or prior
to the date specified therefor in this Section 4.08, the Depositary shall have
no obligation to distribute or forward, as the case may be, such notice or
instruction card or prepare the applicable confirmation of beneficial ownership.
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(g) Charges. The Depositary will not charge Holders for the voting
services described in this Section 4.08.
(h) Amendment of Voting Procedures. There can be no assurance that any
amendments, modifications or additional voting procedures upon which the
Depositary and the Company may agree pursuant to Section 6.01 of this Agreement
will not limit the practical ability of Beneficial Owners of Deposited
Securities to exercise voting right in respect of the foregoing. The Depositary
and the Company agree to use reasonable efforts to make and maintain
arrangements (in addition to or in substitution of the arrangements described in
this Section 4.08) to enable Beneficial Owners to vote the Deposited Securities
underlying their ADSs, except as such efforts may be limited by the right of the
Company's shareholders to amend its Articles of Association and applicable law.
(15) Changes Affecting Deposited Securities. Upon any change in nominal
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities will be treated as new
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares will thenceforth represent the new Deposited Securities so received in
exchange or conversion, unless additional or new Receipts are delivered pursuant
to the following sentence. In any such case the Depositary may execute and
deliver additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts.
(16) Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall, at the request and expense of the Company, distribute to
Holders copies of such reports when furnished by the Company pursuant to Section
5.06 of the Deposit Agreement.
(17) Taxation. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor) is subject to any
tax 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 as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, at such place or
places and upon such terms as it may deem proper, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes to
the Holders of Receipts entitled thereto.
(18) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this ▇▇▇▇▇▇▇▇▇ (▇▇), ▇▇▇▇▇▇▇▇, N.A. and its agents may
own and deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may issue Receipts against evidence of rights to
receive Shares from the Company, or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. The Depositary shall not lend Shares or Receipts; provided, however,
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that the Depositary reserves the right to (i) issue Receipts prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares only upon the prior receipt and cancellation of Receipts pursuant
to Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which Shares may not have been received. The Depositary
may receive Receipts in lieu of Shares under (i) above. Each such transaction
shall be (a) subject to (x) a written representation by the person or entity
(the "Applicant") to whom Receipts are issued that at the time the Depositary
issues such Receipts, the Applicant or its customer owns the Shares to be
delivered to the Depositary, or (y) such evidence of ownership of Shares as the
Depositary deems appropriate, (b) subject to a written representation by the
Applicant that it will hold such Shares in trust for the Depositary until their
delivery to the Depositary or Custodian, reflect on its records the Depositary
as owner of such Shares and deliver such Shares upon the Depositary's request,
(c) at all times fully collateralized (marked to market daily) with cash, United
States government securities, or other collateral of comparable safety and
liquidity, (d) terminable by the Depositary on not more than five (5) business
days notice, and (e) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will limit the number of
Receipts issued by it under (i) above and outstanding at any time to thirty
percent (30%) of the Receipts issued by the Depositary and with respect to which
Shares are on deposit with the Depositary or Custodian. The Depositary will also
set limits with respect to the number of Receipts involved in transactions to be
effected hereunder with any one person on a case by case basis as it deems
appropriate.
Collateral provided by an Applicant for Receipts or Shares, but not the
earnings thereon, will be held for the benefit of the Holder. The Depositary may
retain for its own account any compensation received by it in connection with
the foregoing, including without limitation earnings on the collateral.
(19) Liability of the Company and the Depositary. Neither the Company nor
the Depositary will incur any liability to any Holder of this Receipt, if by
reason of any provision of any present or future law of any country or of any
governmental authority, or by reason of any provision, present or future, of the
Articles of Association of the Company or the Deposited Securities, or by reason
of any act of God or war or other circumstance beyond its control, the
Depositary or the Company shall be prevented or forbidden or delayed from doing
or performing any act or thing which by the terms of the Deposit Agreement it is
provided shall be done or performed or the Depositary or the Company shall be
obligated to do or perform any act which obligation is inconsistent with the
provisions of the Deposit Agreement; nor will the Depositary or the Company
incur any liability to any Holder of a Receipt by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise any
discretion provided in the Deposit Agreement. Neither the Company nor the
Depositary assumes any obligation or will be subject to any liability under the
Deposit Agreement to Holders of Receipts, except that they agree to use their
best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement. Neither the Company nor the
Depositary will be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense and
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required, and no Custodian will be under any
obligation whatsoever with respect to such proceedings, the responsibility of a
A-14
Custodian being solely to the Depositary. Neither the Company nor the Depositary
will be liable for any action or inaction by it in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary will
not be responsible if any instructions to vote any of the Deposited Securities
are not carried out, or for the manner in which any such vote is cast or the
effect of any such vote, provided that any such action or omission is in good
faith. Subject to the laws of Norway and the Articles of Association of the
Company, the Depositary may own and deal in any class of securities of the
Company and its affiliates and in Receipts.
(20) Resignation and Removal of Depositary; Substitution of the Custodian.
The Depositary may at any time resign as Depositary under the Deposit Agreement
by written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. The term
"Depositary" shall also refer to any successor depositary appointed pursuant to
this Paragraph (20). The Depositary may at any time appoint a substitute
custodian and the term "Custodian" shall also refer to such substitute.
(21) Amendment of Deposit Agreement and Receipts. The Receipts and the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary. Any amendment which shall impose or
increase any fees or charges (other than the fees of the Depositary for the
execution and delivery of Receipts and taxes or other governmental charges), or
which shall otherwise prejudice any substantial existing right of Holders of
Receipts, will, however, not become effective as to outstanding Receipts until
the expiration of three months after notice of such amendment shall have been
given to the Holders of outstanding Receipts. Every Holder of a Receipt at the
time any amendment to the Deposit Agreement so becomes effective will be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event will any
amendment impair the right of the Holder hereof to surrender this Receipt and
receive therefor the Deposited Securities represented hereby.
(22) Termination of Deposit Agreement. The Depositary shall, at any time
at the written direction of the Company, terminate the Deposit Agreement by
distributing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement (upon
30 days' notice to the Holders) at any time 60 days after the Depositary shall
have resigned, if a successor depositary shall not have been appointed and
accepted its appointment within such 60 days. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Receipts, will suspend the
distribution of dividends to the Holders thereof and will not give any further
notices or perform any further acts under the Deposit Agreement, except the
collection of dividends and other distributions pertaining to Deposited
Securities, the sale of rights and the delivery of Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary. At any time after the expiration of
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six months from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, for the pro rata benefit
of the Holders of Receipts not theretofore surrendered. Thereafter the
Depositary will be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash.
(23) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement to the contrary, the Company and the Depositary have each
agreed that it will not exercise any rights it has under the Deposit Agreement
to prevent the withdrawal or delivery of Deposited Securities in a manner which
would violate the United States securities laws, including, but not limited to,
Section IA.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
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(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.
SIGNATURE GUARANTEED
A-17
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 U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
----------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for the
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
----------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
----------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held.
other free stock
distributions, or
(ii) exercise of rights to
purchase additional ADSs.
----------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
----------------------------------------------------------------------------------------------------------------
B-1
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 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 expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the Custodian or
any nominee in connection with the servicing or delivery of
Deposited Securities.
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