EX-2 8 exhibit21.htm EXHIBIT 2.1 DESCRIPTION OF SECURITIES REGISTERED UNDER SECTION 12 OF THE EXCHANGE ACT.
.
- Equinor, Annual Report on Form 20-F 2021
1
EXHIBIT 2.1
DESCRIPTION OF SECURITIES
REGISTERED UNDER SECTION 12 OF THE EXCHANGE
ACT
As of 31 December 2021, Equinor ASA (“Equinor,” the “company,” “we,” “us,” and “our”) had the
following series of securities registered
pursuant to Section 12(b) of the Act:
Title of each class
Trading symbol(s)
Name of each exchange on which registered
American Depositary Shares
EQNR
New York Stock Exchange
Ordinary shares, nominal value of NOK 2.50
each
New York Stock Exchange*
*
Listed, not for trading, but only in connection
with the registration of American Depositary
Shares, pursuant to the requirements of the
Securities and Exchange Commission (the “SEC”)
Capitalized terms used but not defined herein
have the meanings given to them in our annual report
on Form 20-F for the fiscal year ended 31
December 2021 (the “Annual Report”).
ORDINARY SHARES
General
This is a summary of material information relating
to our share capital, including summaries of certain
provisions of our articles of association
and the applicable Norwegian law in effect at the date of
the Annual Report, including the Norwegian Public Limited
Companies Act. You
should refer to the full text of our articles of association
in English, which is filed as Exhibit 1
to the Annual Report and Form 20-F.
Share Capital
As of 31 December 2021, our authorised
share capital was NOK 8 144 219 267,50,
divided into 3 257 687 707 ordinary shares, with
a nominal
value of NOK 2.50 per ordinary share. The ordinary
shares are in registered form. As of 31
December 2021, 3 232 116 311 ordinary shares
were issued and outstanding (excluding repurchased
shares).
We have only one class of shares and all shares have
voting rights. The holders of shares are entitled
to receive dividends as and when
declared and are entitled to one vote per
share at the annual general meeting of the company.
Authorisation to Acquire Our Own Shares
The annual general meeting authorised on 11 May 2021 the board of directors
to acquire Equinor ASA shares in the market, on
behalf of the
company, with a nominal value of up to NOK 187,500,000. The board
of directors is authorised to decide at what
price within minimum and
maximum prices per share of NOK 50 and NOK
500, respectively, and at what time such acquisition shall take place.
Shares acquired
pursuant to this authorisation can only be used for annulment
through a reduction of the company’s share capital, pursuant
to the Norwegian
Public Limited Liability Companies Act section 12-1.
Further, on 11 May 2021, the annual general meeting authorised the board of directors to acquire
Equinor ASA shares in the market, on behalf
of the company, with a nominal value of up to NOK 38,000,000 to continue
operation of the share savings plan for employees.
The board of
directors is authorised to decide the price within
minimum and maximum prices per share of NOK
50 and NOK 500, respectively, and the time
of such acquisition. Shares acquired pursuant to this authorisation
may only be used for sale and transfer
to employees of the Equinor group
as a part of the group’s share savings plan, as
approved by the board of directors.
Both the authorisations are valid until the next annual
general meeting, but not beyond 30 June
2022.
General Meetings
In accordance with Norwegian law, our annual general meeting of
shareholders is required to be held each
year on or prior to June 30. The
meeting addresses and decides adoption of the annual
report and accounts, including the distribution
of any dividend and any other matters
required by law or the articles of association.
2
Equinor, Annual Report on Form 20-F 2021
Norwegian law requires that written notice of
general meetings be sent to all shareholders
whose addresses are known at least two weeks
prior to the date of the meeting. A shareholder
may vote at the general meeting either in person
or by proxy. Although Norwegian law does not
require us to send proxy forms to our shareholders
for general meetings, we plan to continue to include
a proxy form with future notices of
general meetings.
Shareholders may vote in writing, including through
electronic communication, during a specified period
before the general meeting. In order to
allow advance voting, the board of directors must
stipulate applicable guidelines. Our board of directors
adopted guidelines for such advance
voting in March 2012, and these guidelines are described
in the notices of the annual general meetings.
In addition to the annual general meeting, extraordinary
general meetings of shareholders may be held
if deemed necessary by the board of
directors, the corporate assembly or the Chair of the
corporate assembly. An extraordinary general meeting must also be
convened for the
consideration of specific matters at the written
request of our auditors or of shareholders representing
a total of at least 5% of the outstanding
share capital.
Voting Rights
All of our ordinary shares carry equal right to vote
at general meetings. Except as otherwise provided,
decisions which shareholders are
entitled to make pursuant to Norwegian law or our
articles of association may be made by
a simple majority of the votes cast. In the case of
elections, the persons who obtain the most votes
cast are deemed elected. However, certain decisions, including resolutions
to waive
preferential rights in connection with any share issue,
to approve a merger or demerger, to amend our articles of association
or to authorise an
increase or reduction in our share capital, must receive
the approval of at least two-thirds of the aggregate
number of votes cast as well as
two-thirds of the share capital represented at a shareholders’
meeting.
In general, in order to be entitled to vote, a
shareholder must be registered as the owner of
shares in the share register kept by the Norwegian
Central Securities Depository, referred to as the VPS System (described
below), or, alternatively, report and show evidence of its share
acquisition to us prior to the general meeting.
Beneficial owners of shares which are registered in
the name of a nominee are generally not
entitled to vote under Norwegian law, nor are any
persons who are designated in the register as
holding such shares as nominees. The beneficial
owners of American Depositary Shares
(“ADS”) are therefore only able to vote at meetings
by surrendering their ADSs, withdrawing their
ordinary shares from the ADR depositary
and registering their ownership of such ordinary
shares directly in our share register in the
VPS System. Alternatively, the ADS holder may
instruct the ADR depositary to vote the ordinary
shares underlying the ADSs on behalf of the
holder, provided that the ADS holder instructs the
ADR depositary to execute a temporary transfer
of the underlying ordinary shares in the VPS
System to the beneficial owner. Similarly,
beneficial owners of ordinary shares registered
through other VPS-registered nominees may not
be able to vote their shares unless their
ownership is reregistered in the name of the
beneficial owner prior to the relevant shareholders’ meeting.
The VPS System and Transfer of Shares
The Norwegian
Verdipapirsentralen
(Central Securities Depositary), or VPS, is Norway’s paperless
centralized securities registry. It is a
computerized bookkeeping system that is operated
by an independent body in which the ownership
of, and all transactions relating to,
Norwegian listed shares must be recorded. Our
share register is operated through the VPS System.
All transactions relating to securities registered with the
VPS System are made through computerized
book entries. No physical share
certificates are or can be issued. The VPS System
confirms each entry by sending a transcript to the registered
shareholder regardless of
beneficial ownership. To effect these entries, the individual shareholder must establish a securities’
account with a Norwegian account agent.
Norwegian banks, the Central Bank of Norway, authorised investment firms in
Norway, and Norwegian branches of credit institutions
established within the European Economic Area are
allowed to act as account agents.
The entry of a transaction in the VPS System is
prima facie
evidence in determining the legal rights
of parties as against the issuing company
or a third party claiming an interest in the
subject security.
The VPS System is liable for any loss suffered as
a result of faulty registration or an amendment
to, or deletion of, rights in respect of
registered securities unless the error is caused by
matters outside the VPS’ control, the consequences
of which the VPS could not reasonably
be expected to avoid or overcome. Damages payable
by the VPS may, however, be reduced in the event of contributory negligence by the
aggrieved party. A transferee or assignee of shares may not exercise
the rights of a shareholder with respect to his
or her shares unless that
transferee or assignee has registered his or
her shareholding or has reported and shown
evidence of such share acquisition and the
acquisition of such shares is not prevented by law, our articles of association
or otherwise.
Amendments to our Articles of Association, including
Variation of Rights
The affirmative vote of at least two-thirds of the votes
cast and of the share capital represented at the
general meeting is required to amend
our articles of association. Any amendment, or
other resolution, which would reduce any
shareholder’s right in respect of dividend payments
or
other rights to our assets or restrict the transferability
of shares requires a majority vote of at
least 90% of the aggregate share capital
represented in a general meeting, as well as the
majority required for the amendment of
the articles of association. Because the Norwegian
State, acting through the Norwegian Minister of Petroleum
and Energy, holds more than two-thirds of the shares in the company, it currently
practically has the sole power to amend our articles
of association.
.
- Equinor, Annual Report on Form 20-F 2021
3
Certain types of changes in the rights of our
shareholders require the consent of all affected
shareholders. If such resolutions only affect some
of the shareholders, the resolutions require the
support of all affected shareholders, as well as the majority
required for the amendment of the
articles of association.
Additional Issuances and Preferential Rights
If we issue any new shares, including bonus share
issues, our articles of association must be
amended, which requires the same vote as other
amendments to our articles of association. In addition,
under Norwegian law, our shareholders have a preferential right
to subscribe to issues
of new shares by us. The preferential rights to
subscribe to an issue may be waived by
a resolution in a general meeting passed by
the same
percentage threshold required to approve amendments
to our articles of association.
The general meeting may, with a majority vote as described above, authorise
the board of directors to issue new shares,
and to waive the
preferential rights of shareholders in connection with such
issuances. Such authorisation may be effective
for a maximum of two years, and
the par value of the shares to be issued may not
exceed 50% of the nominal share capital when
the authorisation is registered in the
Norwegian Register of Business Enterprises.
The issuance of shares to holders who are
citizens or residents of the United States upon
the exercise of preferential rights may require us
to
file a registration statement in the United States under
United States securities laws. If we decide
not to file a registration statement, these
holders may not be able to exercise their
preferential rights.
Under Norwegian law, bonus share issues may be distributed, subject
to shareholder approval, by transfer from our distributable
equity. Any
bonus issues may be effected either by issuing shares
or by increasing the par value of the shares outstanding.
Minority Rights
Norwegian law contains a number of protections
for minority shareholders against oppression by the
majority including but not limited to those
described in this paragraph Any shareholder may petition
the courts to have a decision of the general
meeting declared invalid on the grounds
that it was unlawfully adopted or is otherwise
in conflict with statute or the articles of association
of the company. In certain grave
circumstances shareholders may require the courts to
dissolve the company as a result of such a
decision. A shareholder may also demand
a
dissolution if any of the company’s bodies has adopted
a decision which is suited to give certain
shareholders or others an unreasonable
benefit at the expense of other shareholders or
the company. Minority shareholders holding 5% or more of our share capital
have a right to
demand that we hold an extraordinary general meeting
to discuss or resolve specific matters. In addition,
any shareholder may demand that
we place an item on the agenda for any shareholders’
meeting if we are notified in time for such item
to be included in the notice of the
meeting.
Mandatory Bid Requirement
Norwegian law requires any party that acquires more
than one-third of the voting rights of a Norwegian
company listed on a Norwegian
regulated market, such as the Oslo Stock Exchange
(“OSE”), to make, within four weeks of such acquisition,
an unconditional general offer to
acquire the remaining shares in that company. The mandatory bid obligation
ceases to apply if the person subject to the obligation disposes
of
the portion of shares exceeding the mandatory
bid threshold within such four week period. The
party must immediately notify the stock
exchange and the company when it enters into an
agreement to acquire shares that will trigger
the duty to make a mandatory offer. Until a bid
is made, or a sale is effective, the relevant party cannot
vote the portion of its shares which exceeds the mandatory
bid threshold or exercise
any rights of share ownership in respect of
such shares, other than the right to receive dividends
and preferential rights in the event of a share
capital increase.
The offer is subject to approval by the takeover supervisory
authority before submission of the offer to the
shareholders. The offer must be in
cash or contain a cash alternative at least equivalent
to any other consideration offered. The bid price shall be
at least as high as the highest
payment the offeror has made or agreed to make in
the six-month prior to the time the mandatory bid
obligation was triggered, but equal to the
market price if it is clear that the market price was
higher at the point the mandatory bid obligation
was triggered. The period for acceptance
of
the bid must be within four and six weeks.
A shareholder that fails to make a bid within the four
week period may not, as long as the mandatory
bid requirement applies and unless the
remaining shareholders so approve, exercise rights
of share ownership with respect to all its shares
other than the right to receive dividends
and preferential rights in the event of a share
capital increase. In addition, the takeover supervisory
authority may impose a daily fine upon a
shareholder who fails to make the required
offer. If no bid is made, and the period allowed for sale is exceeded,
the takeover supervisory
authority may sell the shares under the rules
governing forced sales.
Compulsory Acquisition
A shareholder who, directly or via subsidiaries, acquires
shares representing more than 90% of the total
number of issued shares, as well as
more than 90% of the total voting rights, has
the right to effect a compulsory acquisition for cash of
any shares not already owned by the
majority shareholder (and each remaining minority
shareholder of that company would have the right
to require the majority shareholder). A
compulsory acquisition has the effect that the majority
shareholder becomes the owner of the shares of
the minority shareholders with
immediate effect.
A majority shareholder who effects a compulsory acquisition
is required to offer the minority shareholders a specific price
per share. The
determination of the offer price is at the discretion
of the majority shareholder. Should any minority shareholder not accept
the offered price,
4
Equinor, Annual Report on Form 20-F 2021
such minority shareholder must notify the majority
shareholder within a specified period of not less than
two months. If the parties do not come
to an agreement on the offer price, each party can
request that the price be set by the Norwegian
courts. The cost of such court procedure
would normally be charged to the account of the
majority shareholder, and the courts would have full discretion in
determining the
consideration due to the minority shareholder
as a result of the compulsory acquisition on the basis
of the true value of the company.
Our Directors and Corporate Assembly
We have a corporate assembly comprising 18 members.
At the general meeting of shareholders,
two-thirds of the members of the corporate
assembly are normally elected for a term of
two years, together with deputy members, while the
remaining one-third, together with deputy
members, are elected by and from among our
employees. There is no quorum requirement,
and nominees who receive the most votes are
elected. Any shareholder at the meeting may place
nominations before the meeting.
We have a nomination committee that makes recommendations
to the general meeting regarding the election of
shareholder-elected members
of the corporate assembly and their deputies. The
committee consists of four members who must be
shareholders or representatives of
shareholders and who must be independent of
the board of directors and the company’s management.
The members of the nomination
committee, including the chair, are elected by the annual general
meeting. The chair of the committee and one
other member are elected
among the shareholder-elected members of the corporate
assembly. Each member is elected for a two-year term. A member of the corporate
assembly (other than a member elected by employees)
may be removed by the shareholders at any
time without cause.
Our articles of association provide that the board of
directors consists of 9 to 11 directors. Our directors are elected to
the board of directors for
a period of up to two years and may be removed
from office by our corporate assembly. If requested by at least one third of the
members of
the corporate assembly, up to one-third of the directors must be employee
representatives. Our nomination committee makes
recommendations to the corporate assembly regarding
the election of shareholder-elected directors of the
board and their deputies (if any).
Half of the corporate assembly members elected
by the employees may demand that the members
of the board of directors be elected by the
shareholder-elected members of the corporate assembly
and the employee-elected members of the corporate
assembly, each voting as a
separate group. A director (other than a director
elected directly by the employee members)
may be removed at any time by the corporate
assembly without cause.
The corporate assembly makes decisions by majority
vote, and more than half must be present for a
quorum. If votes are tied, the chair of the
meeting casts the deciding vote.
Payment of Dividends
We announce dividends on a quarterly basis. The board
of directors approves first to third quarter interim
dividends based on an authorisation
from the general meeting, while the annual general
meeting approves the fourth quarter (and total
annual) dividend based on a proposal from
the board. When deciding the interim dividends
and recommending the total annual dividend
level, the board of directors will take into
consideration expected cash flow, capital expenditure plans, financing
requirements and appropriate financial flexibility. In addition to cash
dividends, Equinor might buy back shares as
part of the distribution of capital to the shareholders.
The shareholders at the annual general meeting
may vote to reduce, but may not increase, the dividend
proposed by the board of directors.
Equinor announces dividend payments in connection with
quarterly results. Payment of quarterly dividends
is expected to take place
approximately four months after the announcement
of each quarterly dividend.
Equinor declares dividends in USD. Dividends
in NOK per share will be calculated and communicated
four business days after record date for
shareholders at Oslo Børs.
Rights of Redemption and Repurchase of Shares
Our articles of association do not authorise
the redemption of shares. In the absence of
authorisation, the redemption of shares may still
be
decided by a general meeting of shareholders by a
two-thirds majority under certain conditions. However, the share redemption would,
for all
practical purposes, depend on the consent of all
shareholders whose shares are redeemed.
A Norwegian company may purchase its own
shares if an authorisation to do so has been
given by a general meeting with the approval of
at
least two-thirds of the aggregate number of votes
cast as well as twothirds of the share capital
represented at the meeting. The aggregate
par
value of treasury shares held by the company
must not exceed 10% of the company’s share capital
and treasury shares may only be acquired
if the company’s distributable equity, according to the latest adopted balance sheet, exceeds
the consideration to be paid for the shares.
The
authorisation by the general meeting cannot
be given for a period exceeding two years.
See “—Authorisation to Redeem and Acquire Our
Own Shares” above.
Shareholders’ Votes on Certain Reorganizations
A decision to merge with another company or
to demerge requires a resolution of our shareholders
at a general meeting passed by a two-
thirds majority of the aggregate votes cast as well as
two-thirds of the aggregate share capital represented
at the general meeting. A merger
plan or demerger plan signed by the board
of directors along with certain other required documentation
would have to be sent to all
shareholders at least one month prior to the
shareholders’ meeting.
The general meeting must approve any material agreement
between Equinor and a related party. A material agreement comprises
agreements under which the fair value of the company’s obligations
exceed 2.5% of Equinor’s total equity and
liabilities, as presented on its
.
- Equinor, Annual Report on Form 20-F 2021
5
last approved annual financial statement. In voting on
whether to grant such approval, voting rights
cannot be exercised in respect of shares
held by the related party or by another enterprise
in the same company group. The general meeting’s approval
is not required for agreements
concluded with a wholly owned subsidiary or in
the ordinary course of business entered into
on customary business terms and principles.
Additional exceptions follow from the Norwegian
Public Limited Companies Act.
Liability of Directors
Our directors, the Chief Executive Officer and the members
of the corporate assembly owe a fiduciary
duty to the company and its
shareholders. Their fiduciary duty requires that they
act in our best interests when exercising
their functions and exercise a general duty of
loyalty and care toward us. Their principal task
is to safeguard the interests of the company.
Our directors, the Chief Executive Officer and the members
of the corporate assembly can each be held
liable for any damage they negligently
or willfully cause us. Norwegian law permits the general
meeting to exempt any such person from liability, but the exemption is not
binding if
substantially correct and complete information was
not provided at the general meeting when
the decision was taken. If a resolution to grant
such exemption from liability or to not pursue claims
against such a person has been passed by
a general meeting with a smaller majority than
that required to amend our articles of association,
shareholders representing more than 10% of the
share capital or (if there are more than 100
shareholders) more than 10% of the number of
shareholders may pursue the claim on our behalf
and in our name. The cost of any such action
is not our responsibility, but can be recovered by any proceeds we
receive as a result of the action. If the
decision to grant exemption from
liability or to not pursue claims is made by such
a majority as is necessary to amend
the articles of association, the minority shareholders
cannot pursue the claim in our name.
Indemnification of Directors and Officers
Neither Norwegian law nor our articles of association
contain any provision concerning indemnification
by us of our board of directors.
Distribution of Assets on Liquidation
Under Norwegian law, a company may be wound-up by a resolution
of the company’s shareholders in a general meeting passed
by both a
two-thirds majority of the aggregate votes cast and
two-thirds of the aggregate share capital represented
at the meeting. The shares rank
equal in the event of a return on capital by
the company upon a winding-up or otherwise.
Exchange Controls and Other Limitations Affecting
Shareholders of a Norwegian Company
Under Norwegian foreign exchange controls currently in
effect, transfers of capital to and from Norway are
not subject to prior government
approval. An exception applies to the physical transfer
of payments in currency exceeding certain
thresholds, which must be declared to the
Norwegian custom authorities. This means that non-Norwegian
resident shareholders may receive dividend
payments without Norwegian
exchange control consent as long as the payment
is made through a licensed bank or other
licensed payment institution. Transferring banks
are required to submit reports on foreign currency
exchange transactions into and out of Norway
into a central data register maintained by the
Norwegian customs and excise authorities. The
Norwegian police, tax authorities, customs and
excise authorities, the National Insurance
Administration and the Norwegian FSA have electronic
access to the data in this register.
There are no restrictions affecting the rights of non-Norwegian
residents or foreign owners to hold or vote
for our shares.
AMERICAN DEPOSITARY SHARES
This section summarizes certain material provisions of
the Amended and Restated Deposit Agreement, dated
as of 4 February 2019, among
Equinor ASA, JPMorgan Chase Bank, N.A., as depositary, and the holders from
time to time of American Depositary Receipts
(“ADRs”). We
refer to this agreement as the “deposit agreement.”
We do not, however, describe every aspect of the deposit agreement,
which has been filed
as an exhibit to our registration statement on
Form F-6, filed on 14 January 2019. You should read the deposit agreement for a
more detailed
description of the terms of the ADRs. Additional
copies of the deposit agreement are available
for inspection at the principal office of the
depositary in New York, which is presently located at 383 Madison Avenue, Floor 11, New York,
New York, 10179.
American Depositary Receipts
The depositary issued ADRs evidencing American depositary
shares pursuant to the deposit agreement. Each
ADS represents one ordinary
share. Only persons in whose names ADRs are
registered on the books of the depositary will
be treated by the depositary and us as holders
of ADRs. Unless certificated ADRs are specifically requested
by you, all ADSs will be issued on the books
of our depositary in book-entry form
and periodic statements will be mailed to you
which reflect your ownership interest in such
ADSs. In our description, references to American
depositary receipts or ADRs shall include the statements
you will receive which reflect your ownership of ADSs.
You may hold ADSs either directly or indirectly through your broker or other
financial institution. If you hold ADSs directly, by having an ADS
registered in your name on the books of the depositary, you are an
ADR holder. This description assumes you hold your ADSs directly. If you
hold the ADSs through your broker or financial
institution nominee, you must rely on the procedures
of such broker or financial institution to
6
Equinor, Annual Report on Form 20-F 2021
assert the rights of an ADR holder described herein.
You should consult with your broker or financial institution to find out what those
procedures are.
Pursuant to the terms of the deposit agreement, registered
holders of ADRs and all persons holding
any interest in ADRs and/or ADSs will be
subject to any applicable disclosure requirements regarding
acquisition and ownership of, or interests in,
ordinary shares as are applicable
pursuant to the terms of our articles of association
or other provisions of or governing the
ordinary shares. In order to enforce such disclosure
requirements, we reserve the right to instruct ADR
holders to deliver their ADSs for cancellation and
withdrawal of the deposited securities so
as to permit us to deal directly with the holder
thereof as a holder of ordinary shares,
and, by being a holder of an ADR, ADR holders
are
contractually agreeing to comply with such instructions.
The depositary has agreed, subject to the terms
and conditions of the deposit
agreement, to cooperate with Equinor in its efforts to inform
ADR holders of any exercise by us of
our rights to instruct ADR holders to deliver
their ADSs for cancellation, and to consult with
and provide us with reasonable assistance without
risk, liability or expense on the part of
the
depositary, on the manner or manners in which we may enforce such rights with
respect to any ADR holder.
The depositary will keep, at its transfer office, (i) a
register for the registration, registration of transfer, combination and split-up
of ADRs, which
at all reasonable times will be open for inspection
by holders of ADRs and us for the purpose of
communicating with holders in the interest of
our business or a matter relating to the deposit
agreement and (ii) facilities for the delivery and
receipt of ADRs.
Deposit, Transfer and Withdrawal
The depositary has agreed that upon delivery of
our ordinary shares (or rights to receive our ordinary
shares from us or any registrar, transfer
agent, clearing agency or other entity recording ordinary
share ownership or transactions for us) to their
custodian, which is currently Nordea
Bank Norge ASA, and in accordance with the
procedures set forth in the deposit agreement, the
depositary will issue ADRs for delivery at
its
designated transfer office.
Upon surrender at the office of the depositary of an
ADR for the purpose of withdrawal of the deposited
securities represented by the ADSs
evidenced by such ADR, and upon payment of
the fees, governmental charges and taxes provided
in the deposit agreement, and subject to
the terms and conditions of the deposit agreement,
the holder of such ADR will be entitled
to delivery to such holder or upon such holder’s
order, as permitted by applicable law, of the amount of deposited securities at the time
represented by the ADS evidenced by such ADR.
The
custodian will ordinarily deliver such deposited securities
at or from its office. The forwarding of deposited securities
for delivery at any other
place specified by the holder will be at the risk
and expense of the holder.
Dividends, Other Distributions and Rights
To the extent practicable, the depositary will distribute to you, in proportion to the number
of ADSs you hold, 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 that it receives in
respect of the deposited securities. Such a distribution
will be subject to (i) appropriate adjustments
for taxes withheld, (ii) the impermissibility
or impracticability of such distribution with respect
to certain holders and (iii) the deduction of the
depositary and/or its agents’ fees and
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. To
the extent that the depositary determines in its
discretion that any distribution under the terms
of the deposit agreement is not practicable with
respect to any holder, the depositary may make such distribution as
it so deems practicable, including the distribution of
foreign currency,
securities or property (or appropriate documents evidencing
the right to receive foreign currency, securities or property) or the retention thereof
as deposited securities with respect to such holder’s
ADRs (without liability for interest thereon or
the investment thereof). See “Ordinary
Shares—Payment of Dividends” above.
If any distribution on deposited securities consists
of a dividend in, or free distribution of, ordinary
shares, the depositary will, to the extent
practicable, distribute to you, in proportion to the number
of ADSs you hold, additional ADRs evidencing
an aggregate number of ADSs that
represents the amount of ordinary shares received
as such dividend or free distribution. In lieu
of delivering ADRs for fractional ADSs in the
event of any such dividend or free distribution, the
depositary shall sell the number of ordinary
shares represented by the aggregate of
such
fractions and distribute the net proceeds to holders
entitled thereto.
If we offer or cause to be offered to holders of deposited
securities any rights to subscribe for additional
shares or rights of any nature, the
depositary will to the extent practicable distribute
warrants or other instruments, in its discretion,
representing rights to acquire additional ADRs
in respect of any rights that have been
made available to the depositary as a result of
a distribution on deposited securities, to the extent
that
we timely furnish to the depositary evidence
satisfactory to the depositary that the depositary may lawfully
distribute the same. We have no
obligation to furnish such evidence, and to the extent
that we do not furnish such evidence and
the sales of rights are practicable, the
depositary will distribute any U.S. dollars available to
the depositary from the net proceeds of sales
of rights, as in the case of cash, or, to the
extent that we do not furnish such evidence and such
sales cannot practicably be accomplished by
reason of the non-transferability of the
rights, limited markets therefor, their short duration, or otherwise, the
depositary will distribute nothing (and any rights
may lapse).
The depositary will not offer rights to holders having
an address in the U.S. unless both the rights
and the securities to which such rights relate
are either exempt from registration under the
Securities Act of 1933, as amended (the “Securities
Act”) with respect to a distribution to all
holders or are registered under the provisions of
the Securities Act. Notwithstanding any terms of the
deposit agreement to the contrary, we
shall have no obligation to prepare and file
a registration statement in respect of any
such rights.
Whenever the depositary shall receive any distribution
other than cash, ordinary shares or rights in
respect of the deposited securities, the
depositary will to the extent practicable distribute
securities or property available to the depositary resulting
from such distribution to the
.
- Equinor, Annual Report on Form 20-F 2021
7
holders entitled thereto by any means that the depositary
may deem equitable and practicable, or, to the extent that the depositary
deems
distribution of such securities or property to not be equitable
and practicable, any U.S. dollars available
to the depositary from the net proceeds
of sales of such securities or property, as in the case of cash.
Whenever we intend to distribute a dividend payable
at the election of the holders of ordinary
shares in cash or in additional shares, we
shall
give notice thereof to the depositary at least
30 days prior to the proposed distribution
stating whether or not we wish such elective distribution
to be made available to ADR holders. Upon receipt
of notice indicating that we wish such elective
distribution to be made available to ADR
holders, the depositary shall consult with us to determine,
and we shall assist the depositary in its
determination, whether it is lawful and
reasonably practicable to make such elective distribution
available to the ADR holders. The depositary
shall make such elective distribution
available to ADR holders only if (i) we shall have
timely requested that the elective distribution is
available to ADR holders, (ii) the depositary
shall have determined that such distribution is reasonably
practicable and (iii) the depositary shall have received
satisfactory documentation
within the terms of the deposit agreement including,
without limitation, any legal opinions of counsel
in any applicable jurisdiction that the
depositary in its reasonable discretion may request,
at our expense. If the above conditions are not
satisfied, the depositary shall, to the extent
permitted by law, distribute to the ADR holders, on the basis of the
same determination as is made in the local market
in respect of the
ordinary shares for which no election is made,
either (x) cash or (y) additional ADSs representing
such additional ordinary shares. If the above
conditions are satisfied, the depositary shall establish
a record date and establish procedures
to enable ADR holders to elect the receipt of
the
proposed dividend in cash or in additional ADSs. We shall
assist the depositary in establishing such procedures
to the extent necessary.
Nothing herein shall obligate the depositary to
make available to ADR holders a method
to receive the elective dividend in ordinary shares
(rather than ADSs). There can be no assurance
that ADR holders generally, or any holder in particular, will be given the opportunity to receive
elective distributions on the same terms and conditions
as the holders of ordinary shares.
If the depositary determines that any distribution of
property other than cash (including ordinary
shares or rights) on deposited securities
is
subject to any tax which 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 will 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.
Changes Affecting Deposited Securities
Pursuant to the terms of the deposit agreement,
the depositary may, in its discretion, and will if we so reasonably request, amend
the ADRs or
distribute additional or amended ADRs (with or
without calling for the exchange of any ADRs) 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 any distribution
other than cash, ordinary shares or rights, which
in each case is not distributed to holders
or any cash, securities or property available to the depositary
in respect of the deposited securities from
(and the depositary is authorised 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 of
our assets, and
to the extent that the depositary does not so
amend the ADRs 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 an ADR shall automatically represent
its pro rata interest in the deposited securities as
then constituted. Promptly upon the
occurrence of any of the aforementioned changes
affecting deposited securities, we shall notify the depositary
in writing of such occurrence
and as soon as practicable after receipt of such
notice, may instruct the depositary to give notice
thereof, at our expense, to holders in
accordance with the provisions of the deposit
agreement. Upon receipt of such instruction,
the depositary shall give notice to the holders in
accordance with the terms of the deposit agreement,
as soon as reasonably practicable.
Record Dates
The depositary may, after consultation with us if practicable, fix a record
date (which, to the extent applicable, shall be
as near as practicable
to any corresponding record date set by us) 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 in the deposit agreement
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
shall be so entitled or obligated.
Voting of Deposited Securities
Subject to the following sentence, as soon as practicable
after receipt of notice of any meetings at
which the holders of ordinary shares are
entitled to vote, or of solicitation of consents or proxies
from holders of ordinary shares or other deposited
securities, the depositary shall fix
the ADS record date in accordance with the deposit
agreement in respect of such meeting or
solicitation of consent or proxy. The depositary
shall, if we request in writing in a timely manner
(the depositary having no obligation to take
any further action if the request shall not
have
been received by the depositary at least 30 days
prior to the date of such vote or meeting) and
at our expense and provided no legal
prohibitions exist, distribute to holders a notice stating:
1. such information as is contained in such
notice and any solicitation materials;
2. that each holder on the record date set
by the depositary therefor will, subject to any applicable
provisions of Norwegian law, be entitled to
instruct the depositary as to the exercise of
the voting rights, if any, pertaining to the deposited securities represented by
the ADSs evidenced
by such holder’s ADRs; and
8
Equinor, Annual Report on Form 20-F 2021
3. the manner in which such instructions may be
given, including without limitation, any
requirements that ADSs be blocked for a specified
period of time leading up to and including the
date of such meeting or solicitation and/or ordinary
shares represented by ADSs for which
instructions are provided be registered on the books
of Equinor in the name of the instructing holder.
Upon actual receipt by the ADR department of
the depositary of instructions of a holder on
such record date in the manner and on or
before
the time established by the depositary for such
purpose and timely compliance by the ADR holder
with any requirements notified by the
depositary, 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 such holder’s ADRs in accordance
with such instructions. The depositary
will not itself exercise any voting discretion in
respect of any deposited securities. There is no
guarantee that holders generally or any holder
in
particular will receive the notice described above
with sufficient time to comply with the voting requirements
set forth in the notice referenced
above or to enable such holder to return any
voting instructions to the depositary in a timely manner.
Notwithstanding anything contained in the deposit agreement
or any ADR, the depositary may, to the extent not prohibited by law or
regulations, or by the requirements of the stock
exchange on which the ADSs are listed, in
lieu of distribution of the materials provided to
the
depositary in connection with any meeting of, or solicitation
of consents or proxies from, holders of deposited
securities, distribute to holders of
ADRs a notice that provides such holders with, or
otherwise publicizes to such holders, instructions
on how to retrieve such materials or
receive such materials upon request (i.e., by reference
to a website containing the materials for retrieval
or a contact for requesting copies of
the materials).
ADR holders are strongly encouraged to forward
their voting instructions as soon as possible. Voting instructions will not
be deemed received
until such time as the ADR department responsible
for proxies and voting has received such instructions
notwithstanding that such instructions
may have been physically received by the depositary
prior to such time.
The depositary and its agents may rely and
shall be protected in acting upon the opinion(s)
of our counsels with respect to all matters relating
to voting under Norwegian Law, rule and/or regulation.
Reports and Other Communications
We have delivered to the depositary, the custodian and any transfer office, on the SEC’s website, or
upon request from the depositary (which
request may be refused by the depositary at its
discretion), a copy of all provisions of or
governing the ordinary shares and any other
deposited securities issued by us or any of our affiliates
and, promptly upon any change thereto, we will
deliver to the depositary, the
custodian and any transfer office, a copy (in English or with
an English translation) of such provisions
as so changed.
Amendment and Termination of the Deposit Agreement
Subject to the provisions of the deposit agreement,
the ADRs and the deposit agreement may
at any time be amended by us and
the
depositary without your consent; 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, SWIFT, cable, telex or facsimile transmission costs, delivery costs or
other such expenses), or which otherwise prejudices
any substantial existing right of yours, will
take effect 30 days after notice of any such
amendment has been given to ADR holders.
Every holder of an ADR at the time any amendment
to the deposit agreement so becomes
effective will be deemed by continuing to hold such
ADRs to consent and agree to such amendment
and to be bound by the deposit
agreement as amended thereby. In no event may any amendment impair the
right of any holder of ADRs to surrender
such ADRs 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 us and the depositary)
in order for (a) the ADSs to be
registered under the Securities Act or (b) the ADSs
or our ordinary 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 of ADRs,
shall be deemed not to prejudice any substantial
rights of such 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, we and
the
depositary may amend or supplement the deposit agreement
and the form of 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 of
ADRs or within any other period of time
as required for compliance. Notice of any amendment
to the deposit agreement or form of ADR shall
not need to describe in detail the specific amendments
effectuated thereby, and failure to
describe the specific amendments in any such notice
shall not render such notice invalid, provided,
however, that, in each such case, the
notice given to the holders identifies a means for holders
to retrieve or receive the text of such amendment
(i.e., upon retrieval from the SEC’s,
the depositary’s or our website or upon request from the depositary).
The depositary may, and shall at our written direction, terminate the deposit agreement
and the ADRs by mailing notice of such termination
to
the ADR holders at least 30 days prior
to the date fixed in such notice for such
termination; provided, however, if the depositary shall have
(i)
resigned as depositary, notice of such termination by the depositary shall not
be provided to ADR holders unless a
successor depositary shall
not be operating under the deposit agreement within
60 days of the date of such resignation,
or (ii) been removed as depositary, notice of such
termination by the depositary shall not be provided
to ADR holders unless a successor depositary
shall not be operating under the deposit
agreement on the 60th day after our notice
of removal was first provided to the depositary. Notwithstanding anything to
the contrary set forth in
the deposit agreement, the depositary may terminate
the deposit agreement without notice to us, but
subject to giving 30 days’ notice to the
ADR holders, under the following circumstances: (i)
in the event of the our bankruptcy or
insolvency, (ii) if the ordinary shares cease to be
listed on an internationally recognized stock exchange,
(iii) if we effect (or will effect) a redemption of all
or substantially all of the deposited
securities, or a cash or share distribution representing
a return of all or substantially all of the
value of the deposited securities, or (iv) there
occurs a merger, consolidation, sale of assets or other transaction as
a result of which securities or other property
are delivered in exchange
for or in lieu of deposited securities.
.
- Equinor, Annual Report on Form 20-F 2021
9
After the date so fixed for termination, the depositary
and its agents will perform no further
acts under the deposit agreement and the ADRs,
except to receive and hold (or sell) distributions on
deposited securities and deliver deposited securities
being withdrawn. As soon as
practicable after the date so fixed for termination,
the depositary shall use its reasonable efforts to sell the
deposited securities and shall
thereafter (as long as it may lawfully do so)
hold in an account (which may be segregated
or unsegregated 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 the ADRs, except to account
for such net proceeds and other cash. After
the date so fixed for termination, we shall
be discharged from all obligations under the deposit
agreement except for our obligations to the depositary
and its agents.
In the event that the depositary resigns, is removed
or is otherwise substituted, and a successor thereto
is appointed, the successor depositary
will promptly mail you notice of such appointment.
Liability of Holder for Taxes
If any tax or other governmental charges (including
any penalties and/or interest) become payable by
the custodian or the depositary with
respect to any ADR, any deposited securities represented
by the ADSs evidenced thereby or any distribution
thereon, such tax or other
governmental charge will be paid by the holder thereof
to the depositary and by holding or having
held an ADR the holder and all prior holders,
jointly and severally, agree to indemnify, defend and hold harmless each of the depositary and
its agents in respect thereof. The depositary
may refuse to effect any registration, registration of transfer
or any split-up or combination of such ADR or
any withdrawal of deposited
securities underlying such ADR until such payment
is made. The depositary may also deduct from any
dividends or other distributions or may
sell by public or private sale for your account any
part or all of the deposited securities underlying
such ADR and may apply such dividends,
distributions or the proceeds of any such sale
to pay any such tax or other governmental charges,
and the holder of such ADR shall remain
liable for any deficiency, and the depositary shall reduce the number of ADSs
evidenced thereby to reflect any such sales
of shares. In
connection with any distribution to holders, we
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
us; 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, us, the custodian and any of their respective
officers,
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, which obligations shall survive
any transfer or surrender of ADSs or
the termination of the deposit agreement.
Transfer of American Depositary Receipts
The ADRs are transferable on the books of the
depositary,
provided
that the depositary may close the transfer books
or any portion thereof at
any time or from time to time when deemed expedient
by it, and may also close the issuance book portion
of the transfer books when
reasonably requested by us solely in order to
enable us to comply with applicable law. As a condition precedent
to the issue, registration,
registration of transfer, split-up or combination of any ADR, the delivery
of any distribution thereon, or withdrawal of any
deposited securities,
the depositary, we or the custodian may require (i) payment 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 ordinary shares being
deposited or withdrawn) and payment of any
applicable fees payable by the holders of
ADRs under the deposit agreement, (ii) proof of the
identity of any signatory and genuineness of any
signature, (iii) information as to citizenship or residence,
exchange control approval,
beneficial ownership of any securities, compliance
with applicable law, regulations, provisions of or governing the
deposited securities and
terms of the deposit agreement and the
ADR or other information as it may deem necessary
or proper, and (iv) compliance with such
regulations as the depositary may establish consistent
with the deposit agreement. The issuance,
transfer, combination or split-up of ADRs or
the withdrawal of deposited securities may be
suspended, generally or in particular instances, during
any period when the transfer books of
the depositary or the books of Equinor or its agent
for the registration and transfer of ordinary
shares are closed or if any such action is
deemed advisable by the depositary.
Limitations on Liability
Neither the depositary nor we nor any of our
respective directors, officers, employees, agents or
affiliates will be liable to you if by reason of
any provision of any present or future
law, rule, regulation, fiat, order or decree of the United States,
the Kingdom of Norway or any other
country or jurisdiction, or of any other governmental
or regulatory authority or securities exchange
or market or automated quotation system, or
by reason of any provision of or governing
any deposited securities or any provision of our
charter, or by reason of any act of God, war,
terrorism, nationalization, expropriation, currency restrictions,
work stoppage, strike, civil unrest, revolutions, rebellions,
explosions, computer
failure or circumstance beyond any such party’s direct and immediate
control, the depositary, we or any of our respective directors,
employees, agents or affiliates shall be prevented or
delayed in performing, or shall be subject
to any civil or criminal penalty in connection
with, any act which by the terms of the deposit
agreement or the ADRs it is provided shall
be done or performed by it or them (including,
without limitation, voting pursuant to the terms of
the ADRs); nor will the depositary, we or any of our respective
directors, employees, agents
or affiliates incur any liability to you by reason of any
non-performance or delay, caused as aforesaid, in the performance of
any act or things
which by the terms of the Deposit Agreement
it is provided shall or may be done or performed
or of any exercise of, or failure to exercise,
any
discretion provided for under the deposit agreement
or any ADR (including, without limitation,
any failure to determine that any distribution or
action may be lawful or reasonably practicable), or
for any action or inaction by it in reliance upon
the advice of or information from legal
counsel, accountants, any person presenting ordinary
shares for deposit, any ADR holder, or any other person believed
by it to be competent
to give such advice or information.
10
Equinor, Annual Report on Form 20-F 2021
Neither we nor the depositary nor any of our
respective directors, officers, employees, agents or
affiliates assume any obligation or be subject
to any liability except to perform its obligations
to the extent they are specifically provided under the
deposit agreement or the ADRs without
gross negligence or willful misconduct. We, the depositary
and its agents and may rely and shall
be protected in acting upon any written
notice, request, direction, instruction or document
believed to be genuine and to have been
signed, presented or given by the proper
party or
parties.
The depositary and its agents have no obligation
to appear in, prosecute or defend any action,
suit or other proceeding in respect of any
deposited securities or the ADRs, and we and our
agents have no obligation to appear in, prosecute
or defend any action, suit or other
proceeding in respect of any deposited securities
or the ADRs, which in our opinion may involve
us in expense or liability, unless indemnity
satisfactory to us against all expense (including
fees and disbursements of counsel) and liability
is furnished as often as may be required.
The depositary shall not be liable for the acts or
omissions made by, or the insolvency of, any securities depository, clearing agency or
settlement system, and shall not have any liability
for the price received in connection with any
sale of securities, the timing thereof or any
delay in action or omission to act, nor
shall it be responsible for any error or delay in
action, omission to act, default or negligence on
the part
of the party so retained in connection with any
such sale or proposed sale. The depositary shall be
under no obligation to inform registered
holders of ADRs or any other holders of
an interest in any ADSs about the requirements
of the laws, rules or regulations or any changes
therein or thereto of any country or jurisdiction
or of any governmental or regulatory authority
or any securities exchange or market or
automated quotation system. The depositary and its
agents will 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 may rely upon
instructions from us or our counsel in respect
of any approval or license required for
any currency conversion, transfer or distribution. The
depositary and its agents may own and deal
in any class of our securities and securities
or our affiliates and in ADRs. Notwithstanding
anything else contained in the deposit agreement or
any prior deposit agreement, the depositary shall
have no liability or responsibility under
the deposit agreement, any ADR or any related
agreement, for any period prior to the effective date
of the deposit agreement or for any act or
omission of the predecessor to the depositary or
any of its agents (including the custodian as defined
in the prior deposit agreement), under
or
in connection with this deposit agreement, any ADRs
or any related agreement. 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 ADR holder or holders,
any ADR or ADRs or otherwise related thereto
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.
None of us, the depositary or the custodian shall be
liable for the failure by any registered holder
or beneficial owner of ADRs to obtain the
benefits of credits or refunds of non-U.S. tax paid
against such holder’s or beneficial owner’s
income tax liability. Neither we nor the depositary
shall incur any liability for any tax or tax consequences
that may be incurred by registered holders or beneficial
owners of ADRs on account of
their ownership or disposition of the ADRs or
ADSs.
The depositary shall not incur any liability for
the content of any information submitted to it by
or on our behalf for distribution to the ADR
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, 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 us.
Notwithstanding anything set forth in the deposit
agreement to the contrary, the depositary and the custodian(s) may use third party
delivery services and providers of information
regarding
matters such as pricing, proxy voting, corporate actions,
class action litigation and other services in connection
herewith and the deposit
agreement, and use local agents to provide extraordinary
services such as attendance at annual meetings
of issuers of securities. Although
the depositary and the custodian will use reasonable
care (and cause their agents to use reasonable
care) in the selection and retention of
such third party providers and local agents,
they will not be responsible for any errors
or omissions made by them in providing the relevant
information or services. The depositary shall not be
liable for any acts or omissions made by
a successor depositary whether in connection
with a previous act or omission of the depositary
or in connection with any matter arising wholly after
the removal or resignation of the
depositary, unless a liability is directly caused by the previous gross negligence
or willful misconduct of the depositary or its directors,
officers,
employees, agents or affiliates acting in their capacities
as such under the deposit agreement.
Neither we nor the depositary nor any of our
respective agents shall be liable to registered holders
of ADRs or beneficial owners of interests in
ADSs for any indirect, special, punitive or consequential
damages (including, without limitation, legal
fees and expenses) or lost profits, in each
case of any form incurred by any person or entity, whether or not foreseeable
and regardless of the type of action in which
such a claim may
be brought.
The depositary shall not be responsible for, and shall incur no liability
in connection with or arising from any act or omission
to act on the part
of the custodian except to the extent that any
holder has incurred liability directly as
a result of the custodian having (a) committed fraud
or
willful misconduct in the provision of custodial services
to the depositary or (b) failed to use reasonable
care in the provision of custodial
services to the depositary as determined in accordance
with the standards prevailing in the jurisdiction
in which the custodian is located. As
long as we or one of our affiliates is serving as
the custodian with respect to the deposit agreement
we shall be solely liable for each and
any
act or failure to act on the part of the
custodian.
No provision of the deposit agreement or any
ADR is intended to constitute a waiver or limitation
of any rights which an ADR holder or
any
person or entity having a beneficial ownership interest
in any ADSs may have under the Securities
Act or the Securities Exchange Act of 1934,
to the extent applicable.
Governing Law, Submission to Jurisdiction and Waiver of Right to
Trial by Jury
The deposit agreement is governed by and construed
in accordance with the laws of the State of
New York.
.
- Equinor, Annual Report on Form 20-F 2021
11
We have irrevocably agreed that any legal suit, action
or proceeding against us brought by the
depositary or any holder, arising out of or
based upon the deposit agreement or the transactions
contemplated thereby, may be instituted in any state or federal court in New York, New
York, and irrevocably waive any objection which we may now or hereafter have
to the laying of venue of any such proceeding,
and irrevocably
submit to the non-exclusive jurisdiction of such courts
in any such suit, action or proceeding. We have
also irrevocably agreed that any legal
suit, action or proceeding against the depositary brought
by us, arising out of or based upon the
deposit agreement or the transactions
contemplated thereby, may only be instituted in a state or federal court in New
York, New York.
Each holder or beneficial owner of ADSs and
each holder of interests therein, has irrevocably
agreed that any legal suit, action or proceeding
against or involving us or the depositary, arising out of or based on
the deposit agreement, the ADSs, or the transactions
contemplated
thereby, may only be instituted in a state or federal court in New York, New York, and each such party has irrevocably waived any objection
which it may now or hereafter have to the laying
of venue of any such proceeding, and irrevocably
submits to the exclusive jurisdiction of such
courts in any such suit, action or proceeding.
Each party to the deposit agreement, including
each holder and beneficial owner and/or holder
of interests in ADRs, irrevocably waives, to
the
fullest extent permitted by applicable law, any right it may have
to a trial by jury in any suit, action or
proceeding against the depositary and/or
us directly or indirectly arising out of or relating
to the ordinary shares or other deposited securities,
the ADSs or the ADRs, the deposit
agreement or any transaction contemplated therein, or
the breach thereof, whether based on contract,
tort, common law or any other theory.
Appointment
In the deposit agreement, each registered holder
of ADRs 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),
(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,
(c) acknowledge and agree that (i) nothing in the
deposit agreement or any ADR shall give rise
to a partnership or joint venture among the
parties thereto nor establish a fiduciary or similar
relationship among such parties, (ii) the depositary, its divisions, branches and
affiliates, and
their respective agents, may from time to time be
in the possession of non-public information about
Equinor, ADR holders, owners of ADSs
and/or their respective affiliates, (iii) the depositary and
its divisions, branches and affiliates may at any time have
multiple banking
relationships with Equinor, ADR holders, owners of ADSs and/or the
affiliates of any of them, (iv) the depositary and its
divisions, branches
and affiliates may, from time to time, be engaged in transactions in which parties
adverse to Equinor or the Holders or owners
of ADSs may
have interests, (v) nothing contained in the Deposit
Agreement or any ADR(s) shall (A) preclude the
Depositary or any of its divisions,
branches or affiliates from engaging in such transactions or
establishing or maintaining such relationships,
or (B) obligate the Depositary or
any of its divisions, branches or affiliates to disclose
such transactions or relationships or to account
for any profit made or payment received
in such transactions or relationships, and (vi)
the Depositary shall not be deemed to
have knowledge of any information held by any
branch,
division or affiliate of the Depositary.