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Rule
424(b)(3) 333-130658
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No.
of ADSs:
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Number
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Each
ADS represents
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One
Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
KONINKLIJKE
KPN N.V.
(Incorporated
under the laws of The Netherlands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States of America , as depositary hereunder (the "Depositary"), hereby
certifies that ________ is the registered owner (a "Holder") of ____ American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one
ordinary share (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of Koninklijke KPN N.V., a corporation organized
under the laws of The Netherlands (the "Company"), deposited under the Amended
and Restated Deposit Agreement dated as of December 30, 2005 (as amended from
time to time, the "Deposit Agreement") among the Company, the Depositary and all
Holders from time to time of American Depositary Receipts issued thereunder
("ADRs"), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
(1)
Issuance of
ADRs
. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the
Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or, (c) other rights to receive Shares (until such Shares are
actually deposited pursuant to (a) or (b) above, "Pre-released ADRs") only if
(i) Pre-released ADRs are fully collateralized (marked to market daily) with
cash or U.S. government securities held by the Depositary for the benefit of
Holders (but such collateral shall not constitute "Deposited Securities"), (ii)
each recipient of Pre-released ADRs agrees in writing with the Depositary that
such recipient or its customer (a) beneficially owns such Shares, (b) assigns
all beneficial right, title and interest therein to the Depositary, (c) holds
such Shares for the account of the Depositary and (d) will deliver such Shares
to the Custodian as soon as practicable and promptly upon demand therefor and
(iii) all Pre-released ADRs evidence not more than 20% of all ADSs (excluding
those evidenced by Pre-released ADRs),
provided
,
however
, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement
represents and warrants that such Shares are validly issued and outstanding,
fully paid, nonassessable and free and clear of any lien, encumbrance, security
interest, charge, pledge or restriction on transfer and were not acquired in
violation of any pre-emptive rights, that the person making such deposit is duly
authorized so to do and that such Shares are not subject to any other
restriction on sale, transfer or deposit under the laws of the United States or
of the Netherlands, or under a shareholders' agreement or the Company's Articles
of Association or any applicable regulations of any securities
exchange. If any such representations or warranties are incorrect in
any respect, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing such Shares, to take any and all actions
necessary to correct the consequences thereof. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary shall refuse to accept for such deposit
any Shares specifically identified in writing by the Company for such limited
period of time as is legally required to facilitate the Company's compliance
with such Act.
(2)
Withdrawal of Deposited
Securities
. Subject to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer
Office or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, the Holder hereof is entitled to delivery at, or to the extent
in dematerialized form from, the Custodian's office of the Deposited Securities
at the time represented by the ADSs evidenced by this ADR. At the
request, risk and expense of the Holder hereof, the Depositary may deliver such
Deposited Securities at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement
or this ADR, the withdrawal of Deposited Securities may be restricted only for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
(3)
Transfers of
ADRs
. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at all
reasonable times will be open for inspection by Holders and the Company for the
purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York;
provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject
to paragraphs (4) and (5), this ADR is transferable on the ADR Register and may
be split into other ADRs or combined with other ADRs into one ADR, evidencing
the aggregate number of ADSs surrendered for split-up or combination, by the
Holder hereof or by duly authorized attorney upon surrender of this ADR at the
Transfer Office properly endorsed (in the case of ADRs in certificated form) or
upon delivery to the Depositary of proper instruments of transfer and
duly stamped as may be required by applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of
a Holder, the Depositary shall, for the purpose of substituting a certificated
ADR with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4)
Certain
Limitations
. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any
stock transfer or other tax or other governmental charge, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) the production
of proof satisfactory to it of (i) the identity of any signatory and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. The issuance of ADRs, the acceptance of deposits
of Shares, the registration, registration of transfer, split-up or combination
of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or when
any such action is deemed advisable by the Depositary.
(5)
Taxes
. If
any tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration,
registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until
such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any
distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled
thereto. Each Holder of an ADR or an interest therein agrees to
indemnify the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents and affiliates against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes,
additions to tax, penalties or interest arising out of any refund of taxes,
reduced rate of withholding at source or other tax benefit
obtained.
(6)
Disclosure of
Interests
. To the extent that the provisions of or governing
any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
comply with any reasonable Company instructions in respect thereof. The Company
reserves the right to instruct Holders to deliver their ADSs for cancellation
and withdrawal of the Deposited Securities so as to permit the Company to deal
directly with the Holder thereof as a holder of Shares and Holders agree to
comply with such instructions. The Depositary agrees to
cooperate with the Company in its efforts to inform Holders of the Company's
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk, liability or expense on the part of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder.
(7)
Charges of
Depositary
. The Depositary may charge each person to whom ADSs
are issued against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), and each person surrendering ADSs for withdrawal of Deposited
Securities, U.S. $5.00 for each 100 ADSs (or portion thereof) delivered or
surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such
charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable (i) to
the extent not prohibited by the rules of the primary stock exchange upon which
the ADSs are listed, a fee of $.02 or less per ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement, (ii)
to the extent not prohibited by the rules of the primary stock exchange upon
which the ADSs are listed, a fee of $1.50 per ADR or ADRs for transfers made
pursuant to paragraph (3) hereof, (iii) a fee for the distribution or sale of
securities pursuant to paragraph (10) hereof, such fee being in an amount equal
to the fee for the execution and delivery of ADSs referred to above which would
have been charged as a result of the deposit of such securities (for purposes of
this paragraph (7) treating all such securities as if they were Shares) but
which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto,
(iv) to the extent not
prohibited by the rules of the primary stock exchange upon which the ADSs are
listed, a fee of US$0.02 per ADS (or portion thereof) per year for the services
performed by the Depositary in administering the ADRs (which fee shall be
assessed against Holders as of the record date or dates set by the Depositary
not more than once each calendar year and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions), and (v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses of
the Depositary and any agent of the Depositary (except the Custodian) only
pursuant to written agreements entered into from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses of
the Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), and (v) any other charge
payable by any of the Depositary, any of the Depositary
=
s agents,
including, without limitation, the custodian, or the agents of the
Depositary
=
s agents in
connection with the servicing of the Shares or other Deposited Securities (which
charge shall be assessed against Holders as of the record date or dates set by
the depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions). Except to the extent the Company is
depositing Shares hereunder (in which case it may be subject to the charges and
expenses set forth in (i), (ii) and (iii) of the immediately preceding sentence)
or is a Holder (in which case it may be subject to the charges and expenses set
forth in (v) of the immediately preceding sentence), the Company shall not be
responsible for paying any of the charges or expenses described in (i) - (v) set
forth in the immediately preceding sentence. Subject to the
notice provisions of paragraph (16) hereof, such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary
(8)
Available
Information
. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute
copies of such communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company publishes information in
English required to maintain the exemption from registration under Rule
12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site
(http://www.kpn.com/en.htm) or through an electronic information delivery system
generally available to the public in its primary trading market
.
The Depositary
does not assume any duty to determine if the Company is complying with the
current requirements of Rule 12g3-2(b) under the Securities Exchange Act of 1934
or to take any action if the Company is not complying with those
requirements.
(9)
Execution
. This
ADR shall not be valid for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
..................................................
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Authorized
Officer
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The
Depositary's office is located at 4 New York Plaza, New York, New York
10004.
[FORM OF
REVERSE OF ADR]
(10)
Distributions on Deposited
Securities
. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto on
the record date set by the Depositary therefor at such Holder's address shown on
the ADR Register, in proportion to the number of Deposited Securities (on which
the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs: (a)
Cash
. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b)
Shares
. (i)
Additional ADRs evidencing whole ADSs representing any Shares available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c)
Rights
. (i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights as
in the case of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d)
Other
Distributions
. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any
means that the Depositary may deem equitable and practicable, or (ii) to the
extent the Depositary deems distribution of such securities or property not to
be equitable and practicable, any U.S. dollars available to the Depositary from
the net proceeds of sales of Other Distributions as in the case of Cash. Such
U.S. dollars available will be distributed by checks drawn on a bank in the
United States for whole dollars and cents. Fractional cents will be withheld
without liability and dealt with by the Depositary in accordance with its then
current practices.
(11)
Record Dates
. The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company with respect to the Shares) for the
determination of the Holders who shall be responsible for the fee assessed by
the Depositary for administration of the ADR program and for any expenses
provided for in paragraph (7) hereof as well as for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders of record on the close of business (New York time) on such date
shall be so entitled or obligated.
(12)
Voting of Deposited
Securities
. As soon as practicable after receipt from the
Company of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall distribute
to Holders a notice stating (a) such information as is contained in such notice
and any solicitation materials delivered by the Company to the Depositary, (b)
that each Holder on the record date set by the Depositary therefor will, subject
to any applicable provisions of the law of The Netherlands, be
entitled to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the whole number of Deposited Securities represented by the
ADSs evidenced by such Holder's ADRs and (c) the manner in which such
instructions may be given, including instructions to give a discretionary proxy
to a person designated by the Company. Upon receipt of instructions
of a Holder on such record date in the manner and on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable and permitted under the provisions of or governing
Deposited Securities to vote or cause to be voted the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs in accordance with such
instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the extent such
instructions are not so received by the Depositary from any Holder, the
Depositary shall deem such Holder to have so instructed the Depositary to give a
discretionary proxy to a person designated by the Company and the Depositary
shall endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to give a discretionary proxy to a person
designated by the Company to vote the Deposited Securities represented by the
ADSs evidenced by such Holder's ADRs as to which such instructions are so given,
provided
that
no such instruction shall be deemed given and no discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information promptly in writing) or the
Depositary reasonably believes (in the case of (y) or (z) below) that (x) the
Company does not wish such proxy given, (y) substantial opposition exists or (z)
materially affects the rights of holders of Shares. For purposes hereof, by way
of example and not limitation, it is agreed that routine matters, such as
appointing auditors and directors (except where a competing director or slate of
directors is proposed), appointing Supervisory Board members (except where a
competing Supervisory Board member or slate of members is proposed), approving
the Annual Report and resolutions to approve the public offering or private
placement of de minimis amounts of securities (i.e. issuances of Shares which,
based on the number of Shares issued and outstanding prior to giving effect to
such issuance, represents less than ten percent of the then outstanding Shares),
would not materially affect the rights of holders of Shares.
Notwithstanding
anything to the contrary contained herein, the Depositary shall not be obligated
to give any such deemed instruction with respect to any vote, unless and until
the Depositary has been provided with an opinion of counsel to the Company, in
form and substance reasonably satisfactory to the Depositary, to the effect that
(i) the granting of such discretionary proxy does not subject the Depositary to
any reporting obligations in the Netherlands, (ii) the granting of such proxy
will not result in a violation of Dutch law, rule, regulation or permit, (iii)
the voting arrangement and proxy as contemplated herein will be given effect
under Dutch law, rule and regulation, (iv) the Depositary will not be deemed to
be authorized to exercise any discretion when voting in accordance with the
terms of this paragraph (12) under Dutch law, rule or regulation and, (v) the
Depositary will not be subject to any liability under Dutch law, rule or
regulation for losses arising from the exercise of the voting arrangements set
forth in this paragraph (12). For purposes of (v) above,
counsel to the Company may assume in such opinion that the Depositary has
complied with the instructions received from Holders (or deemed to so have
received) as set forth in this paragraph (12) and that such liability or losses
did not arise due to the negligence or bad faith of the Depositary or its agents
(which agents shall not include the person appointed by the Company to receive
the deemed discretion of those Holders from whom voting instructions were not
timely received).
There is
no guarantee that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return any
voting instructions to the Depositary in a timely manner.
(13)
Changes Affecting Deposited
Securities
. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and, irrespective
of whether such Deposited Securities are surrendered or otherwise cancelled by
operation of law, rule, regulation or otherwise, to sell by public or private
sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then
constituted.
(14)
Exoneration
. Each
of the Depositary, the Company, their agents and each of them shall: (a) incur
no liability to any Holder, beneficial owners of an interest in ADSs or third
party (i) if any present or future law, rule or regulation of the
United States, The Netherlands or any other country, or of any
governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them
(including, without limitation, voting pursuant to paragraph (12) hereof), or
(ii) by reason of any exercise or failure to exercise any discretion given it in
the Deposit Agreement or this ADR; (b) assume no liability to any Holder,
beneficial owner of an interest in ADSs or third party except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The
Depositary and its agents shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. Notwithstanding anything to the contrary
set forth in the Deposit Agreement or an ADR, the Depositary and its agents may
fully respond to any and all demands or requests for information maintained by
or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any ADR or ADRs or otherwise related hereto to the extent such
information is requested or required by or pursuant to any lawful authority,
including without limitation laws, rules, regulations, administrative or
judicial process, banking, securities or other regulators. In
the Deposit Agreement, the Company has agreed to indemnify the Depositary and
its agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the
Company nor the Depositary nor any of their respective agents shall be liable to
Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15)
Resignation and Removal of
Depositary; the Custodian
. Unless otherwise agreed in writing,
the Depositary may resign as Depositary by 60 days written notice of its
election to do so delivered to the Company, or be removed as Depositary by the
Company by 60 days written notice of such removal delivered to the
Depositary. The Depositary may appoint substitute or additional
Custodians and the term "
Custodian
" refers to
each Custodian or all Custodians as the context requires.
(16)
Amendment
. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary,
provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time
any amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body or regulatory body should adopt new
laws, rules or regulations which would require amendment or supplement of the
Deposit Agreement or the form of ADR to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and the ADR at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination
. Upon the
resignation or removal of the Depositary pursuant to the Deposit Agreement, the
Depositary may, and shall at the written direction of the Company, terminate the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary
and its agents will perform no further acts under the Deposit Agreement and this
ADR, except to receive and hold (or sell) distributions on Deposited Securities
and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the
pro
rata
benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents.
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness
thereof.
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