EXECUTION VERSION
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GROUPE DANONE
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
OUTSTANDING UNDER THE TERMS OF
THE AMENDED AND RESTATED DEPOSIT AGREEMENT,
DATED AS OF NOVEMBER 19, 1997
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Amendment No. 1
to
Amended and Restated Deposit Agreement
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Dated as of September 26, 2007
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ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01 Definitions..................................................2
SECTION 1.02 Effective Date...............................................2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................2
SECTION 2.01 Deposit Agreement............................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners......3
SECTION 2.03 Deregistration of Securities.................................3
SECTION 2.04 Change of Fees of the Depositary.............................4
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................6
SECTION 3.01 ADR Amendment................................................6
SECTION 3.02 Deregistration of Securities.................................6
SECTION 3.03 Charges of Depositary........................................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................................10
SECTION 4.01 Representations and Warranties..............................10
ARTICLE V
MISCELLANEOUS.................................................................11
SECTION 5.01 New ADRs....................................................11
SECTION 5.02 Notice of Amendment to Holders of ADSs......................11
SECTION 5.03 Indemnification.............................................11
SECTION 5.04 Ratification................................................12
SECTION 5.05 Governing Law...............................................12
SECTION 5.06 Counterparts................................................12
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AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT dated as
of September 26, 2007, (the "Amendment"), by and among Groupe Danone, a
corporation organized and existing under the laws of The Republic of France (the
"Company"), Citibank, N.A., a national banking association organized under the
laws of the United States of America (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Shares evidenced by
American Depositary Receipts outstanding under the Deposit Agreement, dated as
of November 19, 1997
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain
Deposit Agreement, dated as of December 3, 1990, as amended by Amendment No. 1
to Deposit Agreement, dated as of October 7, 1994, and as further amended by
amendment No. 2 to Deposit Agreement, dated as of June 1, 1997 (the "Original
Deposit Agreement"), to establish a ADR facility;
WHEREAS, in connection with the listing of American Depositary
Shares on the New York Stock Exchange (the "NYSE") the Company and the
Depositary entered into the Amended and Restated Deposit Agreement, dated as of
November 19, 1997 (the "Deposit Agreement"), for the creation of American
Depositary Shares representing the Shares (as defined in the Deposit Agreement)
so deposited and for the execution and delivery of American Depositary Receipts
("ADRs") in respect of American Depositary Shares; and
WHEREAS, the Company has de-listed its American Depositary Shares
from the New York Stock Exchange, Inc., on July 5, 2007 and filed a Form 15F
with the U.S. Securities and Exchange Commission (the "SEC") in order to seek to
terminate the registration of its securities under the United States Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), and its obligation to
file with the SEC, or submit to the SEC, reports under Sections 13(a) and 15(d)
of the Exchange Act; and
WHEREAS, the Company and the Depositary desire to amend the ADRs
currently outstanding, the form of ADR annexed to the Deposit Agreement as
Exhibit A thereto, and the Charges of Depositary annexed to the Deposit
Agreement as Exhibit B thereto to enable the Depositary to charge certain
additional fees in respect of the ADSs; and
WHEREAS, the Company desires to (x) amend the Amended and Restated
Deposit Agreement, the ADRs currently outstanding and the form of ADR annexed to
the Amended and Restated Deposit Agreement as Exhibit A thereto, and the Charges
of Depositary annexed to the Deposit Agreement as Exhibit B to reflect such
changes, and (y) to give notice thereof to all Holders (as defined in the
Deposit Agreement) of ADSs; and
WHEREAS, pursuant to Section 6.01 of the Amended and Restated
Deposit Agreement, the Company and the Depositary deem it necessary and
desirable to amend the Amended and Restated Deposit Agreement, the ADRs
currently outstanding and the form of ADR annexed to the Deposit Agreement as
Exhibit A and the Charges of Depositary annexed to the Deposit Agreement as
Exhibit B to reflect such changes for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Amended and Restated Deposit Agreement, the ADRs
currently outstanding and the form of ADR annexed as Exhibit A to the Amended
and Restated Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this
Amendment, all capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean
the date of this Amendment set forth above and as of which this Amendment shall
become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Amended and
Restated Deposit Agreement to the terms "Deposit Agreement" shall, as of the
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Effective Date, refer to the Amended and Restated Deposit Agreement, dated as of
November 19, 1997 as amended by this Amendment as set forth above and as further
amended and supplemented after the Effective Date.
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendments to the Amended and
Restated Deposit Agreement effected hereby shall be binding on all Holders and
Beneficial Owners of ADSs issued and outstanding as of the Effective Date and on
all Holders and Beneficial Owners of ADSs issued after the Effective Date.
SECTION 2.03 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the Amended and Restated Deposit Agreement is hereby amended
as of the Effective Date by deleting Section 4.10 Available Information Section
in its entirety and inserting the following in its stead:
"Section 4.10 Available Information. The Company has been subject to
the periodic reporting requirements of the Securities Exchange Act of 1934
(the "Exchange Act"), and has filed with the SEC, and submitted to the
SEC, certain reports that can be retrieved from the SEC's internet website
at xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. The Company has filed a Form 15F ("Form 15F") with the SEC, which
has suspended the Company's duty under the Exchange Act to file or submit
the reports required under Sections 13(a) or 15(d) of the Exchange Act.
Upon the effectiveness of Form 15F, the Company's duty to file or submit
reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption
from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b), the
Company intends to publish the information contemplated in Rule
12g3-2(b)(1)(iii) under the Exchange Act on its internet website or
through an electronic information delivery system generally available to
the public in the Company's primary trading market, and to translate the
information so published into English in accordance with the instructions
to Rule 12g3-2(e). The Company has specified in Form 15F the internet
website or the electronic information delivery system on which it intends
to publish such information. The information so published by the Company
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cannot be retrieved from the SEC's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the SEC, and submit to the SEC, certain
reports that can be retrieved from the SEC's internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC."
SECTION 2.04. Change of Fees of the Depositary. All references made
in the Deposit Agreement to the fees of the Depositary shall, as of the
Effective Date, refer to the fees and charges set forth in Exhibit B to this
Amendment. To reflect the change in fees, the Deposit Agreement is hereby
amended as of the Effective Date by deleting Section 5.10 in its entirety and
inserting the following in its stead:
"SECTION 5.10. Fees and Charges of Depositary. The Company, the
Holders, the Beneficial Owners, and persons depositing Shares or
surrendering ADSs for cancellation and withdrawal of Deposited Securities
shall be required to pay to the Depositary the Depositary's fees and
related charges identified as payable by them respectively in the Fee
Schedule attached hereto as Exhibit B. All fees and charges so payable
may, at any time and from time to time, be changed by agreement between
the Depositary and the Company, but, in the case of fees and charges
payable by Holders and Beneficial Owners, only in the manner contemplated
in Section 6.01. The Depositary shall provide, without charge, a copy of
its latest fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of
Deposited Securities will be charged by the Depositary to the person to
whom the ADSs so issued are delivered (in the case of ADS issuances) and
to the person who delivers the ADSs for cancellation to the Depositary (in
the case of ADS cancellations). In the case of ADSs issued by the
Depositary into The Depositary Trust Company ("DTC") or presented to the
Depositary via DTC, the ADS issuance and cancellation fees will be payable
to the Depositary by the participant(s) in DTC (the "DTC Participant(s)")
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receiving the ADSs from the Depositary or the DTC Participant(s)
surrendering the ADSs to the Depositary for cancellation, as the case may
be, on behalf of the Beneficial Owner(s) and will be charged by the DTC
Participant(s) to the account(s) of the applicable Beneficial Owner(s) in
accordance with the procedures and practices of the DTC Participant(s) as
in effect at the time. Depositary fees in respect of distributions and the
Depositary services fee are payable to the Depositary by Holders as of the
applicable record date established by the Depositary. In the case of
distributions of cash, the amount of the applicable Depositary fees is
deducted by the Depositary from the funds being distributed. In the case
of distributions other than cash and the Depositary service fee, the
Depositary will invoice the applicable Holders as of the record date
established by the Depositary. For ADSs held through DTC, the Depositary
fees for distributions other than cash and the Depositary service fee are
charged by the Depositary to the DTC Participants in accordance with the
procedures and practices prescribed by DTC from time to time and the DTC
Participants in turn charge the amount of such fees to the Beneficial
Owners for whom they hold ADSs.
Transfer fees are payable by the person presenting an ADR to the
Depositary for transfer at the time of transfer.
The Depositary may remit to the Company all or a portion of the Depositary
fees charged for the reimbursement of certain expenses incurred by the
Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary
may agree from time to time.
The Company shall pay to the Depositary such fees and charges and
reimburse the Depositary for such out-of-pocket expenses as the Depositary
and the Company may agree from time to time. Responsibility for payment of
such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed,
the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses
of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.05, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal."
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ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The form of ADR attached as Exhibit A to
the Amended and Restated Deposit and each of the ADRs issued and outstanding
under the terms of the Amended and Restated Deposit Agreement is hereby amended
as of the Effective Date by, inter alia:
(a) Deleting the address of the Depositary in the first paragraph on
the face hereof and at after the signatures on the face thereof and inserting in
both places 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Deleting the nominal value in the first paragraph on the face
hereof and inserting 0.25 (euro).
(c) Deleting the first sentence of paragraph (1) thereof in its
entirety and inserting the following in its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and conditions set
forth in the Amended and Restated Deposit Agreement, dated as of November 19,
1997, as amended by Amendment No. 1 to Amended and Restated Deposit Agreement,
dated as of September 26, 2007 (as so amended and as further amended and
supplemented from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to time
of American Depositary Shares evidenced by Receipts issued thereunder, each of
whom by accepting a Receipt becomes bound by all the terms and provisions
thereof."
SECTION 3.02 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the form of Receipt attached as Exhibit A to the Amended and
Restated Deposit Agreement and each of the Receipts issued and outstanding under
the terms of the Amended and Restated Deposit Agreement is hereby amended as of
the Effective Date by deleting paragraph (10) in its entirety and inserting the
following in its stead:
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"Section (10) Available Information. The Company has been subject to
the periodic reporting requirements of the Securities Exchange Act of 1934
(the "Exchange Act"), and has filed with and submitted to the SEC certain
reports that can be retrieved from the SEC's internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. The Company has filed a Form 15F ("Form 15F") with the SEC, which
has suspended the Company's duty under the Exchange Act to file or submit
the reports required under Sections 13(a) or 15(d) of the Exchange Act.
Upon the effectiveness of Form 15F, the Company's duty to file or submit
reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption
from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b), the
Company intends to publish the information contemplated in Rule
12g3-2(b)(1)(iii) under the Exchange Act on its internet website or
through an electronic information delivery system generally available to
the public in the Company's primary trading market, and to translate the
information so published into English in accordance with the instructions
to Rule 12g3-2(e). The Company has specified in Form 15F the internet
website or the electronic information delivery system on which it intends
to publish such information. The information so published by the Company
cannot be retrieved from the SEC's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with and submit to the SEC, certain reports that
can be retrieved from the SEC's internet website at xxx.xxx.xxx, and can
be inspected and copied at the public reference facilities maintained by
the SEC."
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SECTION 3.03. Charges of Depositary. The form of ADR attached as
Exhibit A to the Deposit Agreement and each of the ADRs issued and outstanding
under the terms of the Deposit Agreement is hereby amended as of the Effective
Date by deleting paragraph (6) thereof in its entirety and inserting the
following in its stead:
"(6) Charges of Depositary. The Depositary shall charge the
following fees:
(1) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(2) Cancellation Fee: to any person surrendering ADSs for
cancellation and Withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(3) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements);
(4) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs;
(5) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADS (or fraction thereof) held
for the distribution of securities other than ADS or rights to
purchase additional ADSs;
(6) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary; and
(7) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities as the case may be will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges, attributable to them;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
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(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph 20 of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable record date established by the Depositary. In the
case of distributions of cash, the amount of the applicable Depositary fees is
9
deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the record date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs. Transfer fees are
payable by the person presenting an ADR to the Depositary for transfer at the
time of transfer.
The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.05 Resignation and Removal of the
Depositary, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Amended and Restated Deposit Agreement and all other documentation executed
and delivered by the Company in connection therewith, will be and have been,
10
respectively, duly and validly authorized, executed and delivered by the
Company, and constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and similar
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment No. 1 to the Amended and Restated
Deposit Agreement as amended hereby, and other document furnished hereunder or
thereunder in The Republic of France, neither of such agreements need to be
filed or recorded with any court or other authority in The Republic of France,
nor does any stamp or similar tax need be paid in The Republic of France on or
in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued hereunder
after the Effective Date, once such new ADRs are available, whether upon the
deposit of Shares or other Deposited Securities or upon the transfer,
combination or split up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Amended and Restated Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send notices informing the Holders of ADSs (i) of the
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terms of this Amendment, (ii) of the Effective Date of this Amendment, and (iii)
that the Holder of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 5.01 hereof. (iv) that copies
of this Amendment may be retrieved from the Commission's website at xxx.xxx.xxx
and may be obtained from the Depositary and the Company upon request. The notice
to Holders of ADSs shall be substantially in the form of Exhibit C attached
hereto.
SECTION 5.03 Indemnification. The Company agrees to indemnify and
hold harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein. The Depositary
agrees to indemnify the Company and each of its directors, employees, agents and
affiliates and hold it harmless from any liability or expense which may arise
out of acts performed or omitted by the Depositary or its Custodian under the
terms of the Deposit Agreement due to the negligence or bad faith of either the
Depositary or the Custodian.
SECTION 5.04 Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.06 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
GROUPE DANONE
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx XXXXXX
Title:
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
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EXHIBIT A
Number CUSIP Number
AMERICAN
DEPOSITARY
SHARES (EACH
REPRESENTING
ONE-FIFTH OF A SHARE)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
Representing
DEPOSITED SHARES OF
GROUPE DANONE
(Incorporated under the laws of the Republic of France)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (the
"Depositary"), such Depositary's Corporate Agency Office being located at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 hereby certifies that
__________________________________________________________ is the owner of
__________________________________ American Depositary Shares, representing
deposited ordinary shares in bearer form i.e., registered as "titres au porteur"
with the Societe Interprofessionnelle pour la Compensation des Vaieurs
Mobilieres, an organization that, inter alia maintains shares and other
securities accounts of French listed companies), (euro) 0.25 nominal value per
share or evidence of rights to receive such ordinary shares ("Shares"), of
GROUPE DANONE, a corporation organized under the laws of The Republic of France
(the "Company"). At the date of the Deposit Agreement (as defined herein), each
American Depositary Share represents one-fifth of a Share (until there shall
occur a distribution upon Deposited Securities covered by Section 4.04 or a
change in Deposited Securities covered by Section 4.09 with respect to which
A-1
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall represent the Shares or Deposited Securities specified
in such Sections) deposited under the Deposit Agreement (as hereafter defined)
with the Custodian, which at the date of execution of the Deposit Agreement is
Credit Lyonnais (Paris). The Depositary's Corporate Agency Office is at a
different address than its Principal Executive Offices. Its Principal Executive
Office is at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth in the Amended and Restated Deposit Agreement, dated as
of November 19, 1997, as amended by Amendment No. 1 to Amended and Restated
Deposit Agreement, dated as of September 26, 2007 (as so amended and as further
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders and Beneficial Owners from
time to time of American Depositary Shares evidenced by Receipts issued
thereunder, each of whom by accepting a Receipt becomes bound by all the terms
and provisions thereof. The Deposit Agreement sets forth the rights of Holders
and Beneficial Owners of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder, subject in the case of cash to paragraph (11)
hereof, (such Shares, securities, property and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Corporate
Agency Office of the Depositary and the Custodian. The statements made on the
face and the reverse of this Receipt are summaries of certain provisions of the
Deposit Agreement and are qualified by and subject to the detailed provisions of
the Deposit Agreement, to which reference is hereby made, and terms not
otherwise defined herein have the meaning ascribed to them in the Deposit
Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment of the fee, if any, of the Depositary provided in paragraph (6) of this
Receipt, and subject to the further terms and conditions of the Deposit
Agreement, the Holder hereof is entitled to delivery, to him or upon his order,
of the Deposited Securities at the time represented by the American Depositary
Shares for which this Receipt is issued. Delivery of such Deposited Securities
may be made by the delivery of appropriate evidence of title to the order of the
Holder hereof, as ordered by him or by the delivery of appropriate evidence of
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title endorsed or accompanied by proper instruments of transfer, or by book
entry delivery. Such delivery will be made without unreasonable delay and, at
the option of the Holder hereof, either at the office of any Custodian or at the
Corporate Agency Office of the Depositary, provided that the forwarding of
Shares or other Deposited Securities for such delivery at the Corporate Agency
Office of the Depositary in the Borough of Manhattan, The City of New York shall
be at the risk and expense of the Holder hereof.
(3) Transfers, Split-ups and Combinations. Subject to the limitations
stated herein, this Receipt is transferable on the books of the Depositary by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt properly endorsed or accompanied by proper instruments of transfer
and duly stamped as may be required by law; provided, however, that the
Depositary may close the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement. This Receipt may be split into other Receipts or may be
combined with other Receipts into one Receipt, representing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered. As
a condition precedent to the execution and delivery, registration, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Company or the Custodian may
require 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 and payment of any applicable fees as provided in paragraph (6) of this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any laws or governmental regulations relating to American depositary receipts or
to the withdrawal of Deposited Securities.
The Depositary may refuse to execute and to deliver Receipts, register the
transfer of any Receipt, or make any distribution of any dividend or other
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until it has received such proof of citizenship, residence,
exchange control approval, payment of applicable French or other taxes or
governmental charges, legal or beneficial ownership or other information as it
may deem necessary or proper in accordance with applicable laws and regulations.
The delivery of Receipts against deposits of particular Shares may be suspended,
or the delivery of Receipts against the deposit of particular Shares may be
withheld or the registration of transfer of Receipts in particular instances may
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be refused, or the registration of transfer generally may be suspended, during
any period when the transfer books of the Depositary or the appointed agent for
the Company for the transfer and registration of Shares are closed, or if any
such action is deemed necessary or advisable by the Depositary or the Company at
any time or from time to time in accordance with the Deposit Agreement.
Notwithstanding any provision of the Deposit Agreement or this Receipt, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended, except as required in connection with (i) temporary delays caused
by closing the transfer books of the Depositary or the Company (or the appointed
agent for the Company for the transfer and registration of Shares) or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary will not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the provisions of the United States Securities Act of 1933, as from time
to time amended (the "Securities Act"), unless a registration statement is in
effect as to such Shares.
The Depositary will comply with written instructions from the Company
requesting that the Depositary not accept for deposit hereunder any Shares or
rights identified in such instructions in order to facilitate the Company's
compliance with U.S. Federal and State securities laws.
(4) Liability of Holder and Beneficial Owners for Taxes. If any French or
other tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented by the American Depositary
Shares evidenced hereby, such tax or other governmental charge shall be payable
by the Holder hereof to the Depositary. The Depositary may refuse, and the
Company shall be under no obligation, to effect any registration of transfer of
all or part of this Receipt or any withdrawal of Deposited Securities
represented hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder and Beneficial
Owner hereof any part or all of the Deposited Securities represented by the
American Depositary Shares evidenced hereby, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder hereof and the Beneficial Owner remaining
liable for any deficiency.
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(5) Representations and Warranties on Deposit of Shares by Depositor. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares are validly issued, fully paid and
non-assessable and any pre-emptive rights have been validly waived, and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent and warrant that the Shares being deposited and the
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts in respect thereof. If such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions reasonably necessary to correct the consequences thereof..
"(6) Charges of Depositary The Depositary shall charge the following
fees:
(1) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(2) Cancellation Fee: to any person surrendering ADSs for
cancellation and Withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(3) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements);
(4) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs;
(5) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADS (or fraction thereof) held
for the distribution of securities other than ADS or rights to
purchase additional ADSs;
(6) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary; and
(7) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for.
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In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities as the case may be will be required to pay the following charges:
(1) taxes (including applicable interest and penalties) and other
governmental charges, attributable to them;
(2) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(3) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(4) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(5) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(6) the fees and expenses incurred by the Depositary, the Custodian, or
any nominee in connection with the delivery or servicing of
Deposited Securities.
All fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders or Beneficial Owners, only in the manner contemplated
by paragraph 20 of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee schedule to
anyone upon request.
Depositary fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
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for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable record date established by the Depositary. In the
case of distributions of cash, the amount of the applicable Depositary fees is
deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the record date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs. Transfer fees are
payable by the person presenting an ADR to the Depositary for transfer at the
time of transfer.
The Depositary may remit to the Company all or a portion of the Depositary
fees charged for the reimbursement of certain expenses incurred by the Company
in respect of the ADR program established pursuant to the Deposit Agreement upon
such terms and conditions as the Company and the Depositary may agree from time
to time. The Company shall pay to the Depositary such fees and charges and
reimburse the Depositary for such out-of-pocket expenses as the Depositary and
the Company may agree from time to time. Responsibility for payment of such
charges and reimbursements may from time to time be changed by agreement between
the Company and the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the Company once
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.05 Resignation and Removal of the
Depositary, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal."
(7) Disclosure of Interests. For purposes of this Paragraph (7), the term
"Shares" shall mean any shares issued by the Company, including bearer and
registered shares. The Holder hereof agrees to comply with the Company's
Articles of Association, as they may be amended from time to time ("Statuts"),
A-7
and the laws of the Republic of France with respect to the disclosure
requirements regarding ownership of Shares, all as if this Receipt were to the
extent practicable the Shares represented hereby. As of the date of the Deposit
Agreement, such disclosure requirements are as follows:
Pursuant to the Company's Statuts, any person or entity that becomes or
ceases to be the owner of Shares or shares assimilated to Shares (which include
American Depositary Shares evidenced by this Receipt), as discussed below in
this Paragraph (7) equal to 1% of the voting rights of the Company or a multiple
thereof must notify the Company by registered letter (return receipt requested)
of the total number of Shares and voting rights held by it, no later than 15
days after acquiring or selling such amount. In order to facilitate compliance
with these notification requirements, a Holder or Beneficial Owner may deliver
such notification to the Depositary in respect to Shares represented by American
Depositary Shares held by such Holder or Beneficial Owner and the Depositary
shall, as soon as practicable after receipt thereof, forward such notification
to the Company.
In the event that a holder fails to comply with the above requirements of
the Company's Statuts, and upon request of a holder or holders of 5% or more of
the voting rights of the Company, such holder shall not be permitted, in
accordance with, and subject to the limitations provided under French law, to
exercise voting rights or grant proxies therefor with respect to any Shares
exceeding the above-mentioned thresholds at any shareholders' meeting for a
period of two years from the date notification has been received.
Pursuant to the Law on the Security and Transparency of Financial Markets
of August 2, 1989, as amended, any person or entity acting alone or in concert
with others that acquires, directly or indirectly, more than one-twentieth,
one-tenth, one-fifth, one-third, one-half or two-thirds of the total number of
Shares or voting rights (or Shares or voting rights assimilated thereto (which
include American Depositary Shares evidenced by this Receipt), as discussed
below in this Paragraph (7)) must so notify the Company within 15 calendar days
and the Conseil des Marches Financiers in each case after the date such
threshold has been crossed of the number of Shares it holds and the voting
rights attached thereto. A holder of Shares is also required to notify the
Company and the Conseil des Marches Financiers if the percentage of Shares or
voting rights owned by such Holder falls below the levels described in the
previous sentence. In order to permit holders of Shares to give the notice
required by law, the Company is obligated to file with the Bulletin des Annonces
Legales Obligatoires ("BALO") within 15 days of the Company's annual general
A-8
meeting, information with respect to the total number of votes available as of
the date of such meeting. In addition, if the number of available votes changes
by more than 5%, the Company is required to notify the BALO, within 15 days of
such change, of the number of votes then available.
In the event that a Holder or Beneficial Owner fails to comply with the
requirements of the preceding paragraph, such Holder or Beneficial Owner will
not be permitted, to exercise voting rights with respect to any Shares or
securities representing Shares exceeding the above referenced thresholds as to
which any required disclosure (as set forth in the preceding paragraph) has not
been made until the end of a two-year period following the date on which such
Holder or Beneficial Owner has complied with such disclosure requirement. In
addition, a French court may, under certain circumstances, eliminate all or part
of the voting rights of such Holder or Beneficial Owner for a period not to
exceed five years, and such Holder or Beneficial Owner may be subject to
criminal penalties.
The provisions of this Paragraph (7) relating to Shares or voting rights
held by a person or an entity also apply to (1) Shares or voting rights held by
another person or entity on behalf of such person or entity, (ii) Shares or
voting rights held by any company which is directly or indirectly controlled by
such person or entity, (iii) Shares or voting rights held by a third party
acting in concert with such person or entity, or (iv) Shares or voting rights
that such person or entity, or any person or entity referred to in (i), (ii) or
(iii) above, is entitled to acquire at its sole option by virtue of an
agreement.
(8) Title to Receipts. Subject to the limitations set forth herein, it is
a condition of this Receipt, and every successive Holder hereof by accepting or
holding the same consents and agrees, that title to this Receipt (and to the
American Depositary Shares evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may deem and treat the Holder hereof as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
(9) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this Receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
A-9
(10) Available Information. The Company has been subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), and has filed with and submitted to the SEC certain reports that can be
retrieved from the SEC's internet website at xxx.xxx.xxx, and can be inspected
and copied at the public reference facilities maintained by the SEC at 000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F ("Form
15F") with the SEC, which has suspended the Company's duty under the Exchange
Act to file or submit the reports required under Sections 13(a) or 15(d) of the
Exchange Act. Upon the effectiveness of Form 15F, the Company's duty to file or
submit reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption from
the reporting obligations of the Exchange Act provided by Rule 12g3-2(b). In
order to satisfy the conditions of Rule 12g3-2(b), the Company intends to
publish the information contemplated in Rule 12g3-2(b)(1)(iii) under the
Exchange Act on its internet website or through an electronic information
delivery system generally available to the public in the Company's primary
trading market, and to translate the information so published into English in
accordance with the instructions to Rule 12g3-2(e). The Company has specified in
Form 15F the internet website or the electronic information delivery system on
which it intends to publish such information. The information so published by
the Company cannot be retrieved from the SEC's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the SEC. If
the Form 15F is not declared effective, the Company will again be subject to the
periodic reporting requirements of the Exchange Act and will be required to file
with and submit to the SEC, certain reports that can be retrieved from the SEC's
internet website at xxx.xxx.xxx, and can be inspected and copied at the public
reference facilities maintained by the SEC.
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Dated: ________________________
Countersigned CITIBANK, N.A., as
Depositary
By: _______________________________ By _______________________________
Authorized Officer Vice President
The address of the Corporate Agency Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Depositary's
Corporate Agency Office is at a different address than its Principal Executive
Office. Its Principal Executive Office is at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-11
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(11) Dividends and Distributions; Rights. Whenever the Depositary is
notified by the Custodian of the receipt of any cash dividend, the Depositary
will, or will cause its agent to, if at the time of receipt thereof any amounts
received in a foreign currency can in the judgment of the Depositary (in light
of applicable law) be converted on a reasonable basis into United States dollars
distributable to the Holders of Receipts entitled thereto and, subject to the
provisions of the Deposit Agreement, convert such dividend or distribution into
United States dollars and will distribute the amount thus received (less any
reasonable and customary expenses incurred by the Depositary in converting such
foreign currency) to the Holders of Receipts entitled thereto, in proportion to
the number of American Depositary Shares representing such Deposited Securities
held by them respectively after deduction or upon payment of the fees and
expenses of the Depositary as set forth in Paragraph (6) hereof; provided,
however, that the amount distributed will be reduced by any amounts required to
be withheld by the Company or the Depositary in respect of taxes or other
governmental charges. If in the judgment of the Depositary amounts received in
foreign currency may not (in light of applicable law) be converted on a
reasonable basis into United States dollars distributable to the Holders of
Receipts entitled thereto, the Depositary shall (a) as to that portion of the
foreign currency that is convertible into dollars, make such conversion and, if
permitted by applicable law, transfer such dollars to the United States for
distribution to Holders in accordance with the terms of the Deposit Agreement
and (b) as to the nonconvertible balance, if any, (i) if requested in writing by
a Holder, distribute the foreign currency (or an appropriate document evidencing
the right to receive such foreign currency) received by(,) the Depositary or
Custodian to such Holder and (ii) hold any amounts of nonconvertible foreign
currency not distributed (iii) uninvested and without liability for interest
thereon for the respective accounts of, the Holders entitled to receive the
same. If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may with the Company's
approval, and shall if the Company shall so request, distribute to the Holders
of outstanding Receipts entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them,
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of Shares received as such dividend or free
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distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary will sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
converted into United States dollars if not in such dollars (if such conversion
may (in light of applicable law) in the judgment of the Depositary be achieved
on a reasonable basis), to the Holders of Receipts entitled thereto. If
additional Receipts are not so distributed (except as pursuant to the preceding
sentence), each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
In the event that the Company shall offer or cause to be offered to the Holders
of any Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary, after consultation with the Company,
will either (a) make such rights available to Holders of Receipts by means of
warrants or otherwise, if lawful and feasible after deduction or upon payment of
the fees and expenses of the Depositary as set forth in Paragraph (6) hereof, or
(b) if making such rights available is not lawful or not feasible, or if the
rights represented by such warrants or other instruments are not exercised and
appear to be about to lapse, use its best efforts (subject to the limitations
set forth in the Deposit Agreement) to sell such rights or warrants or other
instruments at such place or places and upon such terms (including public or
private sale) as the Depositary may reasonably deem proper, and after deduction
or upon payment of the fees and expenses of the Depositary, allocate the net
proceeds of such sales, as in the case of a cash distribution, for account of
the Holders of Receipts otherwise entitled thereto.
(12) Record Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued, with respect to the Deposited Securities, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, or whenever the Depositary causes a change in the
number of Shares represented by each American Depositary Share, or whenever the
Depositary finds it necessary or convenient in respect of any matter, the
Depositary will fix a record date (which shall be as near as practicable to the
record date for Shares set by the Company having regard for the rules of the
exchange on which the American Depositary Shares are listed) (a) for the
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determination of the Holders of Receipts who will be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, subject
to the provisions of the Deposit Agreement or (b), for determining the date on
or after which each American Depositary Share will represent the changed number
of Shares, subject in each case to the terms of the Deposit Agreement.
(13) Voting of Shares. Upon receipt of notice of any meeting of holders of
Shares or other Deposited Securities, the Depositary shall, as soon as
practicable thereafter, mail to the Holders of Receipts (A) a notice in English,
the form of which notice shall be in the sole discretion of the Depositary,
which shall contain (i) such information as is contained in such notice of
meeting, and (ii) a statement that the Holders as of the close of business in
New York on a record date established by the Depositary pursuant to the terms of
the Deposit Agreement will be entitled, subject to any applicable provisions of
French law and the Statuts of the Company and the terms of the Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by such Holder's American Depositary Shares, (B) a voting
instruction card to be prepared by the Depositary and the Company (a "Voting
Instruction Card") setting forth, inter alia, the date established by the
Depositary for the receipt of such Voting Instruction Card (the "Cut-off Date")
and (C) copies of or summaries in English of any materials provided by the
Company for the purpose of enabling the Holders to give instructions for the
exercise of such voting rights. Voting instructions may be given only in respect
of a number of American Depositary Shares representing an integral number of
Shares. As a precondition for exercising any voting rights, any persons holding
American Depositary Shares who are not the Holders of the Receipt(s) registered
in name on the books of the Depositary evidencing such American Depositary
Shares (e.g., persons holding their American Depositary Shares through the
Depository Trust Company) must arrange for the delivery in a blocked account
("Blocking"), established for such purposes by the Depositary, of the relevant
number of American Depositary Shares for the period to commence on the date to
be fixed by the Depositary (on a date which shall be as near as practicable to
the corresponding date established by the Company in France in respect of the
Shares) after consultation with the Company until the completion of such meeting
(the "Blocked Period"). The Depositary will use its best efforts to implement
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and maintain procedures to allow for the Blocking of American Depositary Shares
as contemplated by the preceding sentence. Holders of Receipts registered in
name on the books of the Depositary (other than the Depository Trust Company)
will not, as a precondition for exercising voting rights, be required to deliver
their American Depositary Shares to the Depositary for Blocking but will be
required to irrevocably instruct the Depositary not to transfer the Receipts
(and not to cancel such Receipts upon receipt of cancellation and withdrawal
instructions evidencing the American Depositary Shares in respect of which
voting instructions have been given ("Stop Transfer Instructions")). The
Depositary shall, upon receipt of such Stop Transfer Instructions, refuse to
transfer (and cancel Receipts upon receipt of cancellation and withdrawal
instructions) the Receipts indicated in such Stop Transfer Instructions, during
the Blocked Period.
Upon receipt by the Depositary from a Holder of American Depositary Shares
of (i) a properly completed Voting Instruction Card on or before the Cut-off
Date and (ii) either the requisite number of American Depositary Shares
delivered for Blocking or duly completed Stop Transfer Instructions, the
Depositary will, in respect of such American Depositary Shares, forward the
voting instructions contained in the Voting Instruction Card to the Custodian
and will instruct the Custodian to use reasonable efforts, insofar as practical
and permitted under any applicable provisions of French law and the Statuts of
the Company, to vote or cause to be voted the Shares represented by such
American Depositary Shares in accordance with the instructions set forth in such
Voting Instruction Card. The Depositary will only vote, or cause to be voted, or
attempt to exercise the right to vote that attaches to, Shares represented by
American Depositary Shares in respect of which a properly completed Voting
Instruction Card has been received. In the case of a Voting Instruction Card
received in respect of any Holder of American Depositary Shares who is not the
Holder of the Receipt evidencing such American Depositary Shares on the books of
the Depositary, the Depositary will not vote or cause to be voted the number of
Shares represented by such American Depositary Shares unless the Depositary has
received verification that such number of American Depositary Shares has been
deposited in a blocked account for the Blocked Period by such person. The
Depositary will not vote, or cause to be voted, or attempt to exercise the right
to vote that attaches to, Shares represented by American Depositary Shares in
respect of which the Voting Instruction Card is improperly completed or in
respect of which (and to the extent) the voting instructions included in the
Voting Instruction Card are illegible or unclear.
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As each American Depositary Share represents one-fifth of a Share as of
the date of the Deposit Agreement, voting rights may be exercised only in
respect of five American Depositary Shares, or multiples thereof.
Holders of American Depositary Shares who wish to attend any meeting of
the Company's shareholders in person will need to make separate arrangements
therefor with the Depositary.
According to French law and the Company's Statuts, only holders of Shares
who hold their Shares in registered form for at least two years will be entitled
to double voting rights. Holders of Receipts (which evidence American Depositary
Shares representing Shares in bearer form) will not be entitled to double voting
rights.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Depositary and the Company may modify or amend the above voting procedures or
adopt additional voting procedures from time to time as they determine may be
necessary or appropriate to comply with French or United States law or the
Statuts of the Company.
(14) Changes Affecting Deposited Securities. Upon any change in nominal
value, split-up, consolidation, cancellation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for or in conversion of or in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent the new Deposited Securities so
received in exchange or conversion, unless additional or new Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, with the Company's approval, and shall, if the Company shall so request,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts specifically describing such new Deposited Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Paragraph (14) in respect of the Deposited Securities, the
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Company shall notify the Depositary in writing of such occurrence and, as soon
as practicable after receipt of such notice from the Company, the Depositary
shall give notice thereof, at the Depositary's expense, in writing to all
Holders of Receipts.
(15) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders of Receipts at its Corporate Agency Office
and at the office of each Custodian any reports and communications received from
the Company which are both (a) received by the Depositary or a Custodian or the
nominee of either as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary will also send to Holders of Receipts copies of such reports when
furnished by the Company as provided in the Deposit Agreement. The Depositary
will keep books for the registration of Receipts and their transfer which will
be open at all reasonable times for inspection by the Company and Holders of
Receipts, provided that such inspection shall not be for the purpose of
communicating with Holders of Receipts in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or the Receipts.
(16) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor) is subject to any
taxes or governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or governmental
charges, and the Depositary shall distribute the net proceeds of any such sale
and the balance of any such property after deduction of such taxes or
governmental charges to the Holders of Receipts entitled thereto in proportion
to the number of American Depositary Shares held by them respectively.
The Depositary agrees to use reasonable efforts to establish procedures
acceptable to the French tax authorities to enable eligible U.S. resident
Beneficial Owners to recover any excess French withholding taxes initially
withheld or deducted from dividends and other distributions of the Company to
such U.S. resident Beneficial Owners and to receive any payment in respect of
the "avoir fiscal" for which such Beneficial Owners may be eligible from the
French Treasury. Upon request of any U.S. resident Beneficial Owner who
A-17
certifies to the Depositary that it has not already applied for or received a
tax refund from the French tax authorities or that such U.S. resident Beneficial
Owner's application for such a refund has been rejected, the Depositary will
provide a copy of the French form being prescribed for use by the French tax
authorities at the time of such request for the filing of an application for
such, refunds ("Application for Refund"), together with instructions to such
Beneficial Owner and will arrange for the filing with the French tax authorities
of such Application for Refund if properly completed by such U.S. resident
Beneficial Owner and timely returned to the Depositary so as to enable the
timely filing of such Application for Refund with the French tax authorities.
In addition, the Depositary will use reasonable efforts to establish
procedures acceptable to the French tax authorities for eligible U.S. resident
Holders to be subject to a reduced withholding rate of 15%, if available, at the
time dividends are paid. In connection therewith, the Depositary shall take
reasonable steps to provide eligible U.S. resident Holders with such forms as
may be prescribed by the French Treasury and to take such other reasonable steps
as may be required to file such forms with the appropriate French tax
authorities.
The Company shall provide the Depositary with an official receipt from
French tax authorities setting forth the amounts of tax or other governmental
charge paid to the French tax authorities. The Depositary shall, for a period of
five years after the date of any such payment of tax or other government charge,
maintain such receipt (or other document received from the Company) in its files
and shall, upon request, provide a copy of such receipt to the Holders and
Beneficial Owners of the American Depositary Shares representing such Deposited
Securities evidenced by Receipts held at the time of such distribution by such
Holder or Beneficial Owner.
(17) Liability of the Company and Depositary. Neither the Depositary nor
the Company (nor any of their directors, employees, agents, or controlling
persons (as defined under the Securities Act) will incur any liability to any
Holder or Beneficial Owner of this Receipt, if by reason of any provision of any
present or future law of any country or jurisdiction or of any other
governmental authority or stock exchange, or by reason of any provision, present
or fixture, of the Statuts of the Company, or by reason of any act of God or war
or other circumstances beyond its control, the Depositary or the Company shall
be prevented or forbidden from, or delayed, in doing or performing any act or
thing which by the terms of the Deposit Agreement it is provided shall be done
A-18
or performed nor shall the Depositary or the Company incur any liability to any
Holder or Beneficial Owner of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Holders or Beneficial Owners of Receipts, except that each
of them agrees to use its best judgment and to act in good faith in the
performance of such duties as are specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company will be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense and liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as may be
required, and no Custodian will be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary. Neither the Depositary nor the Company will be liable for any action
or inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder or
Beneficial Owner of a Receipt, or any other person believed by it in good faith
to be competent to give such advice or information. The Depositary and it agents
may own and deal in any class of securities of the Company and its affiliates
and in Receipts.
The Company agrees to indemnify the Depositary and each Custodian against,
and hold each of them harmless from, any liability or expense which may arise
out of acts performed or omitted, in accordance with the provisions of the
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (1) by either the Depositary or any Custodian,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
(18) Pre-Release of Shares and Receipts. Subject to the further terms and
provisions of this Paragraph (18), the Depositary and its agents, on their own
behalf, may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may issue Receipts for evidence of
rights to receive Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the Holder thereof. The Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may (i) issue Receipts prior to the
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receipt of Shares pursuant to Section 2.03 of the Deposit Agreement
("Pre-Release") and (ii) deliver Shares prior to the receipt and cancellation of
Receipts pursuant to Section 2.05 of the Deposit Agreement, including Receipts
which were issued under (i) above but for which Shares may not have been
received. The Depositary may receive Receipts in lieu of Shares under (i) above
and receive Shares in lieu of Receipts under (ii) above. Each such transaction
will be (a) accompanied by (x) a written representation from the person to whom
Receipts or Shares are to be delivered that such person, or its customer, owns
the Shares or Receipts to be remitted, as the case may be, or (y) such evidence
of ownership of Shares or Receipts, as the case may be, as the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral of comparable safety and
liquidity, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems reasonably appropriate. The Depositary will normally
limit the number of Receipts and Shares involved in such transactions at any one
time to thirty percent (30%) of the Receipts outstanding (without giving effect
to Receipts outstanding under (i) above), or Shares held hereunder,
respectively; provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary will also set limits with respect to the number of Receipts and
Shares involved in transactions to be effected hereunder with any one person on
a case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing. Such collateral, but not the earnings
thereon, shall be held for the benefit of the Holders only.
(19) Resignation and Removal of Depositary: Substitution of Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the appointment of a successor depositary and its
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acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time appoint a substitute or an additional custodian after
consultation with the Company and the term "Custodian" shall also refer to such
substitute or additional custodian.
(20) Amendment of Deposit Agreement and Receipts. The form of the Receipts
and the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any such amendment, except as
provided in this Paragraph (20), requires no consent from Holders or Beneficial
Owners of Receipts. Any amendment which shall impose or increase any fees or
charges (other than the fees of the Depositary for the execution and delivery of
Receipts and taxes or other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders or Beneficial Owners of
Receipts, shall not, however, become effective as to outstanding Receipts until
the expiration of three months after notice of such amendment shall have been
given to the Holders of outstanding Receipts except in order to comply with
mandatory provisions of applicable law. Every Holder of a Receipt and any
Beneficial Owner of the American Depositary Shares represented thereby at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt or such American Depositary Shares, 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 hereof to surrender
this Receipt and receive therefor the Deposited Securities represented by the
American Depositary Shares evidenced hereby. Any amendment which shall increase
any fees of the Depositary for the execution and delivery of Receipts shall not
become effective as to Holders and Beneficial Owners of outstanding Receipts
until the expiration of thirty days after notice of such amendment shall have
been given to the Holders of outstanding Receipts.
(21) Termination of Deposit Agreement. The Depositary will at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement if at any time 90 days after the
Depositary shall have resigned, a successor depositary shall not have been
appointed and accepted its appointment. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
registration of transfers of Receipts, will suspend the distribution of
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dividends to the Holders thereof, and will not give any further notices or
perform any further acts under the Deposit Agreement, except the collection of
dividends and other distributions pertaining to Deposited Securities, and the
delivery of Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary. At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, for the pro rata benefit of the Holders of
Receipts not theretofore surrendered. Thereafter the Depositary will be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash.
(22) Retention of Depositary Documents. The Depositary is authorized to
destroy those documents, records, bills and other data compiled during the term
of the Deposit Agreement at the time permitted by the governing statutes unless
such papers are required to be retained in connection with the performance of
written agreements entered into between the Company and the Depositary from time
to time or unless the Company requests that such papers be retained for a longer
period or turned over to the Company or to a successor depositary.
(23) Power of Attorney. Each Holder and Beneficial Owner, upon acceptance
of the American Depositary Receipts issued in accordance with the terms of the
Deposit Agreement, hereby appoints the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all steps or
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the terms of the Deposit Agreement and this Receipt.
(24) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement or this Receipt to the contrary, the withdrawal or delivery of
the Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
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