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PETROLEUM GEO-SERVICES ASA
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
OUTSTANDING UNDER THE TERMS OF THE
DEPOSIT AGREEMENT, DATED AS OF MAY 25, 1993,
AS AMENDED BY FIRST AMENDMENT TO DEPOSIT AGREEMENT,
DATED AS OF APRIL 24, 1997
-----------------------------------
Second Amendment
to
Deposit Agreement
-----------------------------------
Dated as of _________, 2007
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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....2
SECTION 2.03 Deregistration of Securities...............................2
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................3
SECTION 3.01 ADR Amendment..............................................3
SECTION 3.02 Deregistration of Securities...............................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................5
SECTION 4.01 Representations and Warranties of the Company..............5
SECTION 4.02 Representations and Warranties of the Depositary ..........5
ARTICLE V
MISCELLANEOUS..................................................................6
SECTION 5.01 New ADRs...................................................6
SECTION 5.02 Notice of Amendment to Holders of ADSs.....................6
SECTION 5.03 Intentionally Omitted......................................7
SECTION 5.04 Ratification...............................................7
SECTION 5.05 Governing Law..............................................7
SECTION 5.06 Counterparts...............................................7
0
SECOND AMENDMENT TO DEPOSIT AGREEMENT
SECOND AMENDMENT TO DEPOSIT AGREEMENT, dated as of _________ 2007
(the "Amendment"), by and among Petroleum Geo-Services ASA, a company organized
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 from time to time of
American Depositary Shares evidenced by American Depositary Receipts outstanding
under that certain Deposit Agreement, dated as of May 25, 1993, as amended by
First Amendment to Deposit Agreement, dated as of April 24, 1997 (as so amended,
the "Deposit Agreement").
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered the Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares (as defined in the Deposit Agreement) so deposited and for the execution
and delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, the Company has filed a Form 15F with the U.S. Securities
and Exchange Commission (the "Commission") in order to seek to terminate the
registration of its securities under the United States Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), and its obligation to file with
the Commission, or submit to the Commission, reports under Sections 13(a) and
15(d) of the Exchange Act; and
WHEREAS, the Company desires to (x) amend the Deposit Agreement, the
ADRs currently outstanding and the form of ADR annexed to the Deposit Agreement
to reflect such change, and (y) to give notice thereof to all Holders (as
defined in the Deposit Agreement) of ADRs; and
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 ADRs currently outstanding and the form of ADR annexed to the
Deposit Agreement as Exhibit A for the purposes set forth herein.
1
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 and
the form of ADR annexed as Exhibit A to the Deposit Agreement 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 date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit
Agreement to the terms "Deposit Agreement," "herein," "hereunder" and words of
similar import shall, as of the Effective Date, refer to the Deposit Agreement
as amended by this Amendment. Except as expressly modified herein, the Deposit
Agreement shall remain in full force and effect.
SECTION 2.02 Amendments Binding on all Holders. From and after the
Effective Date, the amendments to the Deposit Agreement effected hereby shall be
binding on all Holders of ADSs issued and outstanding as of the Effective Date
and on all Holders of ADSs issued after the Effective Date.
SECTION 2.03 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the Deposit Agreement is hereby amended as of the Effective
Date by deleting Section 4.10 in its entirety and inserting the following in its
stead:
2
"Section 4.10 Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with and submitted to the Commission certain reports that can be retrieved
from the Commission's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained by the
Commission at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The Company has
filed a Form 15F (the "Form 15F") with the Commission, which has suspended
the Company's duty under the Exchange Act to file or submit the reports
required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of the Form 15F, the Company's duty to file or submit
reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption
from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b), the
Company intends to publish in English 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 Company has
specified in the Form 15F the internet website or the electronic
information delivery system on which it intends to publish such
information. 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.
If the Form 15F does not become effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with and submit to the Commission, certain
reports that can be retrieved from the Commission's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference
facilities maintained by the Commission."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of
the form of ADR attached as Exhibit A to the Deposit Agreement and in each of
the ADRs issued and outstanding under the terms 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:
3
"This American Depositary Receipt is one of an issue (herein called
the Receipts), 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 First Amendment to Deposit Agreement, dated as of April 24, 1997, as
further amended by Second Amendment to Deposit Agreement, dated as of
___________, 2007 (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 from time to time of American Depositary Shares
evidenced by Receipts issued thereunder, each of whom by accepting a
Receipt becomes bound by all the terms and provisions thereof."
SECTION 3.02 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the form of Receipt attached as Exhibit A to the Deposit
Agreement and each of the Receipts issued and outstanding under the terms of the
Deposit Agreement is hereby amended as of the Effective Date by deleting
paragraph (9) in its entirety and inserting the following in its stead:
"Section (9) Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with and submitted to the Commission certain reports that can be retrieved
from the Commission's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained by the
Commission at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The Company has
filed a Form 15F (the "Form 15F") with the Commission, which has suspended
the Company's duty under the Exchange Act to file or submit the reports
required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of the Form 15F, the Company's duty to file or submit
reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption
from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b), the
Company intends to publish in English 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
4
the public in the Company's primary trading market. The Company has
specified in the Form 15F the internet website or the electronic
information delivery system on which it intends to publish such
information. 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.
If the Form 15F does not become effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with and submit to the Commission, certain
reports that can be retrieved from the Commission's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference
facilities maintained by the Commission."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(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 the
Kingdom of Norway, neither of such agreements need to be filed or recorded with
any court or other authority in the Kingdom of Norway, nor does any stamp or
similar tax need be paid in the Kingdom of Norway on or in respect of such
agreements.
5
SECTION 4.02 Representations and Warranties of the Depositary. The
Depositary represents and warrants to, and agrees with, the Company that:
(a) 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.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 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 hereunder
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 Effective Date, 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 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send notices informing the Holders of ADRs (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 5.01 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.
6
SECTION 5.03 Intentionally omitted.
SECTION 5.04 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 5.05 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 5.06 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.
7
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
Effective Date.
PETROLEUM GEO-SERVICES ASA
By:________________________________
Name:
Title:
CITIBANK, N.A., as Depositary
By:________________________________
Name:
Title:
8
EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number
AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING RIGHTS ATTRIBUTABLE TO 1 SHARE)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
REPRESENTING
DEPOSITED SHARES
OF
PETROLEUM GEO-SERVICES ASA
(Organized 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 (herein called the Receipts), 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 First Amendment to Deposit Agreement, dated as of April 24,
1997, as further amended by Second Amendment to Deposit Agreement, dated as of
___________, 2007 (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 from time to time of American Depositary Shares evidenced by
Receipts issued thereunder, each of whom by accepting a Receipt 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
----------
* Subject to change as provided in Article IV of the Deposit Agreement.
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
A-2
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 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.
A-3
(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 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 will charge the party to
whom Receipts are delivered against deposits, and the party surrendering
Receipts for delivery of Deposited Securities, $5.00 for each 100 American
Depositary Shares (or portion thereof) represented by the Receipts issued or
surrendered. Persons presenting Shares for deposit or Holders will also be
required to pay (i) taxes and other governmental charges, (ii) share transfer,
exchange or registration fees on deposits and withdrawals of Shares, (iii) such
cable, telex and facsimile transmission and delivery charges as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Shares or Holders of Receipts, and (iv) such expenses as are incurred by the
Depositary in the conversion of foreign currency into dollars.
A-4
All such charges may be changed by agreement between the Depositary
and the Company at any time and from time to time. Any amendment which imposes
or increases any fees or charges (other than the fees of the Depositary for the
issuance, execution and delivery or cancellation of Receipts and taxes and other
governmental charges) or which otherwise prejudices any substantial existing
right of Holders, however, will not become effective as to outstanding Receipts
until three months after notice thereof is given to Holders.
(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 has been subject to the
periodic reporting requirements of the Exchange Act, and has filed with and
submitted to the Commission certain reports that can be retrieved from the
Commission's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at
the public reference facilities maintained by the Commission at ▇▇▇ ▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The Company has filed a Form 15F (the "Form 15F")
with the Commission, which has suspended the Company's duty under the Exchange
Act to file or submit the reports required under Sections 13(a) or 15(d) of the
Exchange Act. Upon the effectiveness of the Form 15F, the Company's duty to file
or submit reports under Sections 13(a) or 15(d) of the Exchange Act will
terminate and the Company will, pursuant to Rule 12g3-2(e)(1), receive the
exemption from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy
A-5
the conditions of Rule 12g3-2(b), the Company intends to publish in English 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 Company has
specified in the Form 15F the internet website or the electronic information
delivery system on which it intends to publish such information. 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. If the Form 15F does not become effective, the
Company will again be subject to the periodic reporting requirements of the
Exchange Act and will be required to file with and submit to the Commission,
certain reports that can be retrieved from the Commission's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference facilities
maintained by the Commission.
(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
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:
(1) 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;
(2) 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
A-6
(3) 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.
Dated:
CITIBANK, N.A.,
as Depositary
By _________________
(Authorized Officer)
The Depositary's Transfer Office is currently located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Depositary's
Transfer Office is different than its Principal Executive Office. Its Principal
Executive Office is located 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
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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 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
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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. Upon receipt of notice of any
meeting of holders of Shares or other Deposited Securities, the Depositary will,
as soon as practicable, mail to the Holders (i) a notice which shall contain
such information as is contained in such notice of meeting and a statement that
Holders will be entitled, subject to any applicable provisions of the law of
Norway and of the Articles of Association of the Company (it being agreed that
the Company will provide the Depositary with a summary of pertinent parts of
such provisions in English and the Depositary will include such summary in such
notice), to exercise the voting rights, if any, pertaining to the Shares or
other Deposited Securities evidenced by their respective Receipts, and (ii),
with respect to any such voting rights, a document in substantially the form of
Exhibit C annexed to the Deposit Agreement which, if duly executed and returned
to the Depositary by a Holder, will authorize and direct the Depositary (a) to
cause such Holder's American Depositary Shares to be temporarily exchanged for
Shares and such Shares to be registered in such Holder's name on the Company's
share registry on VPS at least two business days prior to such meeting, (b) to
give notice to the Company, within the period required by the law of Norway and
the Articles of Association of the Company, of such Holder's intention to vote
at the meeting in person or by proxy, (c) to have a designee of the Depositary
vote such Shares as proxy in accordance with the instructions of such Holder
(unless such Holder elects to designate a different proxy or to attend the
meeting in person), and (d) to exchange such Shares back into American
Depositary Shares promptly after the meeting at which such voting
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rights were exercised. The Depositary will not charge Holders for taking these
actions.
In order to exercise its voting rights, a Holder will be required,
subject to applicable laws and regulations and the Articles of Association of
the Company, to cause the deposit of the American Depositary Shares evidenced by
its Receipts into a blocked account with The Depository Trust Company for the
account of the Depositary or to deliver physically its Receipts to the
Depositary for holding. Such American Depositary Shares will remain in such
blocked account at the Depository Trust Company, or such Receipts will be held
by the Depositary, until the conclusion of the meeting at which such voting
rights are to be exercised, after which such American Depositary Shares will be
released from such blocked account, or such Receipts will be returned, to such
Holder in either case promptly after a number of Shares represented by such
American Depositary Shares (or the American Depositary Shares evidenced by such
Receipt) have been transferred from the VPS account of such Holder to the VPS
account of the Depositary. Such American Depositary Shares may not be
transferred while they are on deposit in such blocked account or the Receipts
evidencing such American Depositary Shares are being held by the Depositary. The
Company hereby agrees to give the Depositary sufficient advance notice of
shareholders' meetings so as to provide Holders with a reasonable opportunity to
vote at such meetings.
(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 will make
available for inspection by Holders of Receipts at its Principal Office any
reports and communications received from the Company which are received by the
Depositary as the holder of the Deposited Securities and made generally
available to the holders of Deposited Securities. The Depositary will also send
to Holders of Receipts copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep
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books for the registration of Receipts and their transfer which at all
reasonable times will be open for inspection by the Company and Holders of
Receipts, provided that such inspection shall not be for the purpose of
communicating with Holders of Receipts in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or the Receipts.
(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 will 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 prior to the 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 and receive Shares in
lieu of Receipts under (ii) 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 or Shares delivered that at the time the Depositary issues
such Receipts or delivers such Shares, the Applicant or its customer owns the
Shares or Receipts to be delivered to the Depositary, or (y) such evidence of
ownership of Shares or Receipts as the Depositary deems appropriate, (b) subject
to a written representation by the Applicant that it will hold such Shares or
Receipts in trust for the Depositary until their
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delivery to the Depositary or custodian, reflect on its records the Depositary
as owner of such Shares or Receipts 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 and
Shares 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
isinconsistent 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
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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 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
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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 will at any
time at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. 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 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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