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TNT N.V.
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 JUNE 15, 1998
------------------------------------
Amendment No. 1
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.............. 3
ARTICLE III
AMENDMENTS TO THE FORM OF ADR................................................. 4
SECTION 3.01 ADR Amendment............................. 4
SECTION 3.02 Deregistration of Securities.............. 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................................ 6
SECTION 4.01 Representations and Warranties............ 6
ARTICLE V
MISCELLANEOUS................................................................. 7
SECTION 5.01 New ADRs.................................. 7
SECTION 5.02 Notice of Amendment to Holders of ADSs.... 7
SECTION 5.03 Intentionally Omitted..................... 8
SECTION 5.04 Ratification.............................. 8
SECTION 5.05 Governing Law............................. 8
SECTION 5.06 Counterparts.............................. 8
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT dated as of ___________, 2007
(the "Amendment"), by and among TNT N.V., a company incorporated and existing
under the laws of The Netherlands (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 of American Depositary
Shares evidenced by American Depositary Receipts issued and outstanding under
the Deposit Agreement, dated as of June 15, 1998.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain
Deposit Agreement, dated as of June 15, 1998 (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 ("SEC") in order to seek to terminate the registration
of its securities under the United States Securities and Exchange Act of 1934,
as amended ("Exchange Act"), and its obligation to file with the SEC, or submit
to the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act.
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 ADSs; and
WHEREAS, pursuant to Section 6.1 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;
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" shall, as of the Effective Date,
refer to the Deposit Agreement, dated as of June 15, 1998 as amended by this
Amendment and as further amended and supplemented after the Effective Date.
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendments to the Deposit
Agreement effected hereby 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 after the Effective Date. Notwithstanding
anything contained herein, in the Deposit Agreement or in any ADR, from and
after the Effective Date any reference in the Deposit Agreement to Holders and
Beneficial Owners of Receipts, ADRs or American Depositary Receipts shall
include, unless a reasonable interpretation of the context otherwise mandates,
Holders and Beneficial Owners of ADSs.
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 4.12 in its entirety and inserting the following in its
stead:
"Section 4.12 Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC, certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained by the
SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The Company has filed a
Form 15F ("Form 15F") with the SEC, 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
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
the information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange
Act on its internet website, and to translate the information so published
into English in accordance with the instructions to Rule 12g3-2(e). The
Company has specified in Form 15F the internet website on which it intends
to publish such information. The information so published by the Company
cannot be retrieved from the SEC's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the SEC, and submit to the SEC, certain
reports that can be retrieved from the SEC's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference
facilities maintained by the SEC."
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:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("Receipts" or "ADRs"), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement, dated as of June 15,
1998, as amended by Amendment No. 1 to Deposit Agreement, dated as of
____________, 2007 (as so amended and supplemented from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all Holders
and Beneficial Owners of ADSs issued thereunder, each of whom by accepting an
ADS 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 (13) in its entirety and inserting the following in its stead:
"Section (13) Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained by the
SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The Company has filed a
Form 15F ("Form 15F") with the SEC, 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
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
the information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange
Act on its internet website, and to translate the information so published
into English in accordance with the instructions to Rule 12g3-2(e). The
Company has specified in Form 15F the internet website on which it intends
to publish such information. The information so published by the Company
cannot be retrieved from the SEC's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the SEC, and submit to the SEC, certain
reports that can be retrieved from the SEC's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference
facilities maintained by the SEC."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, 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
Netherlands, neither of such agreements need to be filed or recorded with any
court or other authority in The Netherlands, nor does any stamp or similar tax
need be paid in The Netherlands 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.
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 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 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send 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 5.01 hereof, and (iv) that
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 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.
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.
TNT N.V.
By: ________________________________
Name:
Title:
CITIBANK, N.A., as Depositary
By: ________________________________
Name:
Title:
Number
CUSIP Number - ▇▇▇▇▇▇▇▇▇
American Depositary
Shares (Each American
Depositary Share
representing one
fully paid Ordinary share
Euro 0.48 par value each)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
TNT N.V.
(Incorporated under the laws of The Netherlands)
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 (hereinafter "ADS"), representing deposited ordinary
shares, Euro 0.48 par value each, including evidence of rights to receive such
ordinary shares (the "Shares") of TNT N.V., a corporation incorporated under the
laws of The Netherlands (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each ADS represents one Share deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is either of ING Bank N.V. or Citibank, N.A., Amsterdam (the
"Custodian"). The ratio of Depositary Shares to shares of stock is subject to
subsequent amendment as provided in Article IV of the Deposit Agreement. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts" or "ADRs"), all issued and to
be issued upon the terms and conditions set forth in the Deposit Agreement,
dated as of June 15, 1998, as amended by Amendment No. 1 to Deposit Agreement,
dated as of _______, 2007 (as so amended and supplemented from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all Holders
and Beneficial Owners of ADSs issued thereunder, each of whom by accepting an
ADS becomes bound by all the terms and provisions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners of
Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time, received in respect of such Shares and held thereunder (such
Shares, securities, property and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Association
of the Company (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the American Depositary Shares into DTC. Each Beneficial Owner
of American Depositary Shares held through DTC must rely on the procedures of
DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name of a
nominee of DTC. So long as the American Depositary Shares are held through DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained by
(i) DTC (or its nominee), or (ii) DTC Participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADS evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (10) hereof
and in Section 5.09 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement
the Company's Articles of Association, Section 7.8 of the Deposit Agreement,
Article (24) of this Receipt and the provisions of or governing the Deposited
Securities and other applicable laws, the Holder of the American Depositary
Shares evidenced hereby is entitled to delivery, to him or upon his order, to a
specified account in NECIGEF or, if for any reason delivery by such means is not
available, by physical delivery at the designated office of the Custodian of the
Deposited Securities represented by the ADS so surrendered. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
registered form or by electronic delivery. ADS may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such ADS (if held in registered form) or by book-entry delivery to a specified
account in DTC of such ADS to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) to a specified account in NECIGEF or, if for any reason
delivery by such means is not available, by physical delivery at the designated
office of the Custodian, subject to the terms and conditions of the Deposit
Agreement, the Articles of Association of the Company, and the provisions of or
governing the Deposited Securities and applicable laws, now or hereafter in
effect, to or upon the written order of the person or persons designated in the
order delivered to the Depositary as provided above, evidence of the electronic
transfer (if available) of the Deposited Securities represented by such ADSs
together with any certificate or other proper documents of or relating to title
of such securities, property or cash. If
A-2
electronic transfer is unavailable for the Shares or any other securities,
property or cash to which the holder is entitled, physical delivery may be made
by the delivery of the securities, property, or cash for which electronic
delivery is unavailable. The Depositary may make delivery to such person or
persons at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing ADSs
representing less than one Share. The Depositary may, in its discretion, refuse
to accept for surrender a number of American Depositary Shares representing a
number of Shares other than a whole number of Shares. In the case of surrender
of a Receipt evidencing a number of ADS representing other than a whole number
of Shares, the Depositary shall cause ownership of the appropriate whole number
of Shares to be delivered in accordance with the terms hereof, and shall, at the
discretion of the Depositary, either (i) issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share, or (ii) sell or cause to be sold
the fractional Shares represented by the Receipt so surrendered and remit the
proceeds thereof (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the Receipt. At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or certificates
and other proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its book upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by the laws of the State of New York and of
the United States of America. Subject to the terms and conditions of the Deposit
Agreement including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and if
necessary cause the Registrar to countersign such Receipt(s)) and deliver same
to or upon the order of the person entitled to such Receipts evidencing the same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts and upon payment of the applicable fees
and charges of the Depositary subject to the terms and conditions of this
Deposit Agreement the Depositary shall execute and deliver, a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require
A-3
(i) payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in the
Deposit Agreement and in this Receipt, (ii) the production of proof reasonably
satisfactory to it as to the identity and genuineness of any signature or any
other matters and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts and ADSs or to the withdrawal
of Deposited Securities and (B) such reasonable regulations of the Depositary or
the Company consistent with the Deposit Agreement and applicable law.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary or a Registrar are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Receipts or Share are listed, or under any
provision of the Deposit Agreement or provisions of, or governing, the Deposited
Securities or any meeting of shareholders of the Company or for any other
reason, subject in all cases to Article (24) hereof. Notwithstanding any
provision of the Deposit Agreement to the contrary, the surrender of outstanding
ADS evidenced by Receipts and withdrawal of Deposited Securities may not be
suspended except as required in General Instructions I.A.(l) to Form F-6 (as
such instructions may be amended from time to time) in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Netherlands law, the rules and requirements of the New York
Stock Exchange, Inc. the Amsterdam Stock Exchange and the Articles of
Association of the Company, which are made to provide information as to the
capacity in which such Holder or Beneficial Owner owns ADSs and regarding the
identity of any other persons then or previously interested in such ADSs and the
nature of such interest and various other matters whether or not they are
Holders and/or Beneficial Owner at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
A-4
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association of the Company. The Company
may also restrict, in such manner as it deems appropriate, transfers of ADSs
where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion, instruct the Depositary to take action with
respect to the ownership interest of any Holder or Beneficial Owner in excess of
the limits set forth in the preceding sentence, including but not limited to the
imposition of restrictions on the transfer of ADSs, the removal or limitation
..of voting rights or a mandatory sale or disposition on behalf of a Holder or
Beneficial Owner of the Shares represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association of
the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of the
Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article (24) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian
and any of their agents, employees and Affiliates for, and hold each of then
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares, have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim
and are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities and have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance, cancellation and transfer of depositary shares. If any
such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
(9) Filing Proofs. Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of
A-5
citizenship or residence, taxpayer status, payment of all applicable taxes or
other governmental charges, exchange control approval, legal or beneficial
ownership of ADSs and Deposited Securities, compliance with applicable laws and
the terms of the Deposit Agreement and the provisions of, or governing, the
Deposited Securities or other information as the Depositary or the Custodian may
reasonably deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement. Subject to Article (24) hereof and the terms of the Deposit
Agreement, the Depositary and the Registrar, as applicable, may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution of rights or of the proceeds thereof or
the delivery of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such representations and
warranties made or such information and documentation are provided. Holders and
Beneficial Owners acknowledge that, under the Dutch Act on the Disclosure of
Holdings in Listed Companies, shareholders must promptly notify the Company and
The Netherlands Securities Investment Board if their holding reaches, exceeds or
falls below 5%, 10%, 25%, 50% or 66-2/3% of the capital interest and/or voting
rights in the Company and agree to comply with such notification requirements.
(10) Charges of Depositary. The Depositary shall charge fees for receiving
deposits and issuing Receipts, for delivering deposited Shares against surrender
of Receipts, for transfer of Receipts, for splits and combination of Receipts,
for distribution of dividends, for sales or exercise of rights or for other
services performed upon the terms set forth in the Deposit Agreement. The
Depositary and the Company reserve the right to modify, reduce or increase any
fees or charges for services performed. The Depositary shall charge any party to
whom Receipts are issued (including, without limitation, deposit or issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock for the Shares or Deposited Securities, or a distribution of
Receipts pursuant to Section 4.03 or 4.11 of the Deposit Agreement), or who
surrenders Receipts a fee of U.S.$5.00 or less per 100 American Depositary
Shares (or portion thereof) for the issuance or surrender, respectively, of a
Receipt. In addition the Depositary shall charge to the Holders a fee of
U.S.$2.00 or less per 100 American Depositary Shares (or portion thereof) for
any cash distribution made pursuant to the Deposit Agreement, including but not
limited to, Sections 4.02 through 4.05 thereof, and $5.00 or less per 100
American Depositary Shares (or portion thereof) in case of stock dividend, made
pursuant to the Deposit Agreement including, but not limited to Section 4.02
through 4.05 thereof. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. In addition, Holders, Beneficial
Owners, and persons depositing Shares (other than the Company) will be requested
to pay taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement. Any other charges and expenses of the Depositary under
the Deposit Agreement will be paid by the Company upon agreement between the
Depositary and the Company concerning the nature and amount of such charges and
expenses. All fees and charges may at any time and from time to time be changed
by agreement between the Company and the Depositary. The charges and expenses of
the Custodian, nominee or any other agent of the Depositary are for the sole
account of the Depositary. The provisions in respect of these charges may be
changed in the manner indicated in Article (22) of this Receipt.
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(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however, that the
Company and 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 all purposes, and neither the
Depositary nor the Company shall have the obligations or be subject to any
liability hereunder or under the Deposit Agreement to any holder of a Receipt
unless such holder is the Holder (that is, the person) registered on the books
of the Depositary.
(12) 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 has been executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar.
(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the SEC, and
submitted to the SEC certain reports that can be retrieved from the SEC's
internet website at ▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public
reference facilities maintained by the SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇. The Company has filed a Form 15F ("Form 15F") with the SEC, 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 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 the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its internet
website, and to translate the information so published into English in
accordance with the instructions to Rule 12g3-2(e). The Company has specified in
Form 15F the internet website on which it intends to publish such information.
The information so published by the Company cannot be retrieved from the SEC's
internet website, and cannot be inspected or copied at the public reference
facilities maintained by the SEC. If the Form 15F is not declared effective, the
Company will again be subject to the periodic reporting requirements of the
Exchange Act and will be required to file with the SEC, and submit to the SEC,
certain reports that can be retrieved from the SEC's internet website at
▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference facilities
maintained by the SEC.
The Registrar shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Article 24
hereof.
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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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
A-8
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the reasonable
judgment of the Depositary (upon the terms of the Deposit Agreement), be
converted on a practicable basis, into Dollars transferable to the United
States, promptly convert or cause to be converted such dividend, distribution or
proceeds into Dollars and will distribute promptly the amount thus received (net
of any applicable fees and charges of, and expenses incurred by, the Depositary
and taxes withheld, in each case, to the extent permitted by the provisions of
the Deposit Agreement) to the Holders entitled thereto as of the ADS Record Date
in proportion to the number of ADS representing such Deposited Securities held
as of the ADS Record Date. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent, and any balance not so distributed shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders of
Receipts then outstanding. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company to the relevant
governmental authority. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees upon receipt of confirmation of such
deposit, the Depositary shall, subject to and in accordance with the Deposit
Agreement, establish the ADS Record Date and either (i) distribute to the
Holders as of the ADS Record Date in proportion to the number of ADSs held as of
the ADS Record Date, additional ADSs, which represent in aggregate the number of
Shares received as such dividend, or free distribution, subject to the terms of
this Deposit Agreement (including, without limitation, the applicable fees and
charges of, and expenses incurred by, the Depositary and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement) or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement.
A-9
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective, the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary reasonably deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and fees and charges of, and expenses incurred by, the Depositary, in
each case, to the extent permitted by the provisions of the Deposit Agreement)
to Holders entitled thereto upon the terms of the Deposit Agreement. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
Upon receipt of notice indicating that the Company wishes an elective
distribution to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs upon the
terms described in the Deposit Agreement.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares (or any rights of any other
nature) to be made available to Holders of ADSs, the Depositary upon
consultation with the Company, shall determine, whether it is lawful and
reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to any Holders only if the Company
shall have requested that such rights be made available to Holders, the
Depositary shall have received the documentation required by the Deposit
Agreement, and the Depositary shall have determined that such distribution of
rights is reasonably practicable. If such conditions are not satisfied, the
Depositary shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures to distribute such rights (by means of warrants or
otherwise) to enable the Holders to exercise the rights (upon payment of the
applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise such rights to subscribe
for Shares (rather than ADSs). If (i) the Company does not request the
Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails to
receive the documentation required by the Deposit Agreement or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public and private sale) as it may reasonably deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and expenses 'incurred by, the
Depositary and taxes, in each case, to the extent permitted by the provisions of
the Deposit Agreement) upon the terms hereof and in the Deposit Agreement. If
the Depositary is unable to make any rights available to Holders or to arrange
for the sale of the rights upon the terms described above, the Depositary shall
allow such rights to lapse. The Depositary shall not be
A-10
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein to the contrary, if registration (under
the Securities Act or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to offer
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
unless and until a registration statement under the Securities Act covering such
offering is in effect. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of Receipts
evidencing ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary reasonably deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
The Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld, in each case,
to the extent permitted by the provisions of the Deposit Agreement. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may reasonably deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
A-11
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may reasonably deem proper and shall (i) cause
the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes, in each case, to the extent permitted by the provisions of the
Deposit Agreement) to the Holders upon the terms hereof. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances. Any benefit
received upon such disposition should be for the benefit of the Holders.
(15) Redemption. Upon receipt of notice from the Company that it intends
to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, the Depositary shall mail to
each Holder a notice setting forth the Company's intention to exercise the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. Upon receipt of confirmation that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, distribute the proceeds (net of applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes, in
each case, to the extent permitted by the provisions of the Deposit Agreement)
retire ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof upon
the terms of the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary.
(16) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any distribution, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, or any other matter, the Depositary shall, after consultation
with the Company, fix a record date ("ADS Record Date") for the determination of
the Holders of Receipts who shall be entitled to receive such distribution, to
give instructions for the exercise of voting rights at any such meeting, or to
give or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to the terms and
conditions of this Receipt and the Deposit Agreement, the Holders of Receipts at
the close of business on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities
ADS Voting Instructions. As soon as practicable after receipt of
notice pursuant to Section 5.6 of the Deposit Agreement of any meeting of
holders of Shares or other Deposited Securities. The Depositary shall fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights as provided in Section 4.9 of the Deposit Agreement.
The Depositary shall, if requested in writing by the Company in a timely manner
(which request must be received by the Depositary at least 30 days prior to such
meeting) and provided no U.S. legal
A-12
prohibitions exists, mail to the Holders of record a notice which shall contain:
(a) such information as is contained in such notice of meeting, (b) a statement
in English, in a form provided by the Company, that the Holders of record at the
close of business on a specified record date will be entitled, subject to the
terms of this Article, any applicable provisions of Dutch law, the corporate
charter and by-laws of the Company and the provisions of or governing Deposited
Securities (which provisions, if any, shall have been summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights pertaining to the number of Deposited Securities represented by
their respective Receipts and (c) a statement addressing the manner in which
such instructions may be given, including an indication that instructions may be
given (or may be deemed to have been given in accordance with the last sentence
of the next paragraph if no instructions are received prior to the deadline set
for such purposes) to the Depositary to give a discretionary proxy to a person
designated by the Company. In the event the notice of meeting and request of the
Company is not received by the Depositary at least 30 days prior to the meeting,
the Depositary shall not have any obligation to notify the Holders and shall not
vote or cause to be voted the Deposited Securities. Upon the written request of
a Holder on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as is
practicable and permitted under applicable law and the provisions of the
corporate charter and by-laws of the Company and the provisions of or governing
the Deposited Securities, to vote or cause to be voted the number of Deposited
Securities represented by the American Depositary Shares evidenced by the
Holder's Receipt in accordance with the instructions set forth in such request.
Discretionary Proxy to Management. The Depositary agrees not to, and
shall take reasonable steps to ensure that the Custodian and each of its
nominees, if any, do not, vote the Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt other than
in accordance with such instructions from the Holder or as provided below. The
Depositary may not itself exercise any voting discretion over any Shares. If the
Depositary does not receive instructions from a Holder on or before the date
established by the Depositary for such purpose, such Holder shall be deemed, and
the Depositary shall deem such Holder, to have instructed the Depositary to give
a discretionary proxy to a person designated by the Company to vote the
Deposited Securities; provided that (y) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
that (i) the Company does not wish such proxy to be given, (ii) substantial
opposition exists or (iii) the rights of holders of Shares will be adversely
affected and (x) the Depositary shall not have any obligation to give such
discretionary proxy to a person designated by the Company if (i) the Company
shall not have delivered to the Depositary the local counsel opinion and the
representation and indemnity letter described in the next paragraph and (ii) the
person designated to receive the discretionary proxy shall not have delivered to
the Depositary an undertaking stating that such person shall not exercise the
rights granted to such person pursuant to the terms of such proxy in
contravention of the provisions of sub paragraph (x) above.
Prior to requesting the delivery of a discretionary proxy upon the
terms set forth herein, the Company shall deliver to the Depositary (a) an
opinion of the Company's local counsel (of recognized standing in such country
and reasonably satisfactory to the Depositary) at the expense of the Company
stating that (i) such action does not violate any local laws and (ii) nothing in
the proxy materials indicates any matter which under local law would be deemed
to adversely affect the rights of the holders of Shares, and (b) a
representation and indemnity letter from the Company
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(executed by a senior officer of the Company) (i) designating the person to whom
any discretionary proxy should be given, (ii) confirming that the Company wishes
such discretionary proxy to be given, (iii) certifying that the Company has not
and shall not request the discretionary proxy to be given as to any matter as to
which substantial opposition exists or which may adversely affect the rights of
holders of Shares or other Deposited Securities and (iv) agreeing to indemnify
the Depositary and the Custodian and their respective officers, directors and
employees against, and hold each of them harmless from, any liability or expense
(including fees and disbursements of counsel) which may arise out of or in
connection with any action of the Depositary or the Custodian in granting such
discretionary proxy.
If, at the time of a vote, for any reason the standing instructions
deemed given herein would not be valid and binding on the Holders, or the
Depositary is unable to obtain the legal opinion or the representation and
indemnity letter above, the Depositary shall not vote the Shares or other
Deposited Securities as to which specific instructions have not been received.
Legal Prohibitions. Notwithstanding anything else contained in the
Deposit Agreement, the Depositary shall not have any obligation to take any
action with respect to any meeting of holders of Shares or other Deposited
Securities if the taking of such action violates U.S. laws. The Issuer agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Shares or other Deposited
Securities and to deliver to the Depositary an opinion of Issuer's U.S. counsel
addressing any actions requested to be taken if requested by the Depositary.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities.
Alternatively, the Depositary may, with the Company's approval, and shall, if
the Company shall so request, subject to the terms of the Deposit Agreement and
receipt of reasonably satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this Receipt, specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of satisfactory
legal documentation contemplated in the Deposit Agreement, sell such securities
at public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of fees and
charges of, and expenses incurred by, the Depositary and taxes, in each case, to
the extent permitted by the provisions of the Deposit Agreement) for the account
of the Holders otherwise entitled to such securities and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to the Deposit Agreement. The Depositary shall not be
responsible for (i) any failure to determine
A-14
that it may be lawful or feasible to make such securities available to Holders
in general or any Holder in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary, the Company
or their respective controlling persons or agents shall be prevented or
forbidden from, or subjected to any civil or criminal penalty or restraint on
account of, or delayed in, doing or performing any act or thing required by the
terms of the Deposit Agreement and this Receipt, by reason of any provision of
any present or future law or regulation of the United States, The Netherlands or
any other country, or of any other governmental authority or regulatory
authority or stock exchange, or by reason of any provision, present or future of
the Articles of Association of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document .believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs,
A-15
Shares or Deposited Securities, for the credit-worthiness of any third party,
for allowing any rights to lapse upon the terms of the Deposit Agreement or for
the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due to it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(22) Amendment, Supplement. This Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges of the Depositary in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs or Shares to be traded solely
in electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such ADS, to consent and agree
to such amendment or supplement and to be bound by the Deposit Agreement as
amended or supplemented
A-16
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, or
rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' ADSs at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of ADSs referred to in Article (2)
hereof and in the Deposit Agreement and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder
A-17
in accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (25), the Depositary, its affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its affiliates and in Receipts. The Depositary may issue
Receipts against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity 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. In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; provided, however, that the Depositary may (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 (each such
transaction a "Pre-Release Transaction"). The Depositary may receive Receipts in
lieu of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
Receipts that are to be delivered by the Applicant under such PreRelease
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. The Depositary may also set limits with respect to the number of
Receipts and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
A-18
(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
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