EXHIBIT 4.0
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BUSINESS OBJECTS S.A.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AMENDED AND RESTATED DEPOSIT AGREEMENT
DATED AS OF MAY 8, 1996
AS AMENDED AND RESTATED AS OF DECEMBER 30, 1998
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ARTICLE 1. DEFINITIONS......................................................................... 3
SECTION 1.1 American Depositary Share......................................................... 3
SECTION 1.2 Commission........................................................................ 4
SECTION 1.3 Custodian......................................................................... 4
SECTION 1.4 Deposit Agreement................................................................. 4
SECTION 1.5 Depositary; Corporate Trust Office................................................ 4
SECTION 1.6 Deposited Securities.............................................................. 5
SECTION 1.7 Dollars; Francs................................................................... 5
SECTION 1.8 Foreign Registrar................................................................. 5
SECTION 1.9 Issuer............................................................................ 5
SECTION 1.10 Owner............................................................................. 5
SECTION 1.11 Receipt........................................................................... 5
SECTION 1.12 Registrar......................................................................... 5
SECTION 1.13 Restricted Securities............................................................. 6
SECTION 1.14 Securities Act of 1933............................................................ 6
SECTION 1.15 Shares............................................................................ 6
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS................................................................. 6
SECTION 2.1 Form and Transferability of Receipts.............................................. 6
SECTION 2.2 Deposit of Shares................................................................. 7
SECTION 2.3 Execution and Delivery of Receipts................................................ 8
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts........................ 9
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.................................... 9
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender of Receipts......... 10
SECTION 2.7 Lost Receipts, etc................................................................ 11
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.............................. 11
SECTION 2.9 Pre-Release of Receipts........................................................... 11
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS........................................... 12
SECTION 3.1 Filing Proofs, Certificates and Other Information................................. 12
SECTION 3.2 Liability of Owner for Taxes...................................................... 13
SECTION 3.3 Warranties on Deposit of Shares................................................... 13
SECTION 3.4 Information Requests.............................................................. 13
SECTION 3.5 Disclosure of Interest............................................................ 14
ARTICLE 4. THE DEPOSITED SECURITIES............................................................ 14
SECTION 4.1 Cash Distributions................................................................ 14
SECTION 4.2 Distributions Other Than Cash, Shares or Rights................................... 15
SECTION 4.3 Distributions in Shares........................................................... 15
SECTION 4.4 Rights............................................................................ 16
SECTION 4.5 Conversion of Foreign Currency.................................................... 17
SECTION 4.6 Fixing of Record Date............................................................. 18
SECTION 4.7 Voting of Shares.................................................................. 19
SECTION 4.8 Changes Affecting Deposited Securities............................................ 20
SECTION 4.9 Reports........................................................................... 20
SECTION 4.10 Lists of Owners................................................................... 21
SECTION 4.11 Withholding....................................................................... 21
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER....................................... 22
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary........................ 22
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the Issuer................ 22
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer....................... 23
SECTION 5.4 Resignation and Removal of the Depositary......................................... 24
SECTION 5.5 The Custodians.................................................................... 25
SECTION 5.6 Notices and Reports............................................................... 26
SECTION 5.7 Distribution of Additional Shares, Rights, etc.................................... 26
SECTION 5.8 Indemnification................................................................... 27
SECTION 5.9 Charges of Depositary............................................................. 28
SECTION 5.10 Retention of Depositary Documents................................................. 29
SECTION 5.11 Exclusivity....................................................................... 29
SECTION 5.12 List of Restricted Securities Owners.............................................. 29
ARTICLE 6. AMENDMENT AND TERMINATION........................................................... 29
SECTION 6.1 Amendment......................................................................... 29
SECTION 6.2 Termination....................................................................... 30
ARTICLE 7. MISCELLANEOUS....................................................................... 31
SECTION 7.1 Counterparts...................................................................... 31
SECTION 7.2 No Third Party Beneficiaries...................................................... 31
SECTION 7.3 Severability...................................................................... 31
SECTION 7.4 Holders and Owners as Parties; Binding Effect..................................... 31
SECTION 7.5 Notices........................................................................... 31
SECTION 7.6 Governing Law..................................................................... 32
SECTION 7.7 Compliance with U.S. Securities Laws.............................................. 32
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DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of May 8, 1996, as amended
and restated as of December 30, 1998, further amending and restating that
certain Deposit Agreement dated as of September 22, 1994, among BUSINESS OBJECTS
S.A., a societe anonyme incorporated under the laws of The Republic of France
(herein called the Issuer), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and all Owners and holders from time to time of
American Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement (as hereinafter defined), for the deposit of Shares (as
hereinafter defined) of the Issuer from time to time with the Depositary or with
the Custodian (as hereinafter defined) as agent of the Depositary for the
purposes set forth in this Deposit Agreement, for the creation of American
Depositary Shares (as hereinafter defined) entitling the Owners thereof to
receive the Shares so deposited and for the execution and delivery of American
Depositary Receipts (as hereinafter defined) evidencing the American Depositary
Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement; and
WHEREAS, this Deposit Agreement and the form of American Depositary Receipt
annexed hereto as Exhibit A are hereby amended and restated in accordance with
Section 6.1 hereof.
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Share.
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The term "American Depositary Share" shall mean the security entitling
the Owner thereof to an undivided interest in the Deposited Securities and
evidenced by
the Receipts issued hereunder. Each American Depositary Share shall entitle the
Owner thereof to receive one Share, until there shall occur a distribution upon
Deposited Securities covered by Section 4.3 or a change in Deposited Securities
covered by Section 4.8 with respect to which additional Receipts are not
executed and delivered, and thereafter American Depositary Shares shall entitle
the Owner thereof to receive the amount of Shares or Deposited Securities
specified in such Sections.
SECTION 1.2 Commission.
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The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.3 Custodian.
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The term "Custodian" shall mean, as of the date hereof, the designated
Paris offices of Banque Nationale de Paris, 00, Xxx Xxxxxxx, 00000 Xxxxx,
Xxxxxx; Banque Paribas, 00 XX xx xx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx; Banque
Worms, 00 Xxxxxxxxx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx; Credit Lyonnais, 00
Xxxxxxxxx xxx Xxxxxxxx XX, 00000 Xxxxx, Xxxxxx; Banque Indosuez, 00 Xxx xx
Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx; and the designated Nantes Cedex office of
Societe Generale, France, 00, xxx xx Xxxxx xx Xxx, Department Titres et Bourse,
XX 0000-00000 Xxxxxx Xxxxx, Xxxxxx; in each case as agents of the Depositary for
the purposes of this Deposit Agreement, and, subject to the last paragraph of
Section 5.5, any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and the terms
"Custodian(s)" and "Custodian" shall also mean all of them, collectively.
SECTION 1.4 Deposit Agreement.
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The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof and
all instruments supplemental thereto.
SECTION 1.5 Depositary; Corporate Trust Office.
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The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office," when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.6 Deposited Securities.
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The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
SECTION 1.7 Dollars; Francs.
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The term "Dollars" shall mean United States dollars. The term
"Francs" or "FF" shall mean the lawful currency of France.
SECTION 1.8 Foreign Registrar.
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The term "Foreign Registrar" shall mean the accredited financial
intermediary in France appointed as agent of the Issuer for the transfer and
registration of Shares or any successor as registrar for the Shares.
SECTION 1.9 Issuer.
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The term "Issuer" shall mean Business Objects S.A., a societe anonyme
incorporated under the laws of The Republic of France, having its registered
office at Tour Chantecoq, 0, xxx Xxxxxxxxx, 00000 Xxxxxxx, Xxxxxx and its
successors.
SECTION 1.10 Owner.
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The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.11 Receipt.
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The term "Receipt" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.12 Registrar.
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The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed by the Depositary to register Receipts and transfers of Receipts as
herein provided and shall include any co-registrar appointed by the Depositary,
upon request or with the approval of the Issuer.
SECTION 1.13 Restricted Securities.
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The term "Restricted Securities" shall mean Shares, or Receipts
entitling the Owner thereof to receive such Shares, which are acquired directly
or indirectly from the Issuer or its affiliates (as defined in Rule 144 under
the Securities Act of 1933) in a transaction or chain of transactions not
involving any public offering or which are subject to resale limitations under
Regulation D under that Act or both, or which are held by an officer, director
(or persons performing similar functions) or other affiliate of the Issuer, or
which are subject to other restrictions on sale or deposit under the laws of the
United States or The Republic of France, or under a shareholder agreement or the
statuts of the Issuer.
SECTION 1.14 Securities Act of 1933.
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The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.15 Shares.
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The term "Shares" shall mean ordinary shares, nominal value one French
Franc each, of the Issuer in administered registered form (titres nominatifs
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administres: i.e. shares which are registered in the Issuer's shareholders'
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accounts and which are managed by the Custodian, an accredited financial
intermediary, acting as agent on behalf of such owner), as permitted by French
law from time to time, heretofore validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or hereafter validly issued and outstanding and fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
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Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be
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registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange or market upon which American
Depositary Shares may be traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Owner thereof as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Shares.
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Subject to the terms and conditions of this Deposit Agreement, Shares
may be deposited by any person (including by electronic transfer thereof) by
inscription of ownership of such Shares in the name of the Depositary in an
account maintained by the Foreign Registrar and in an account maintained by the
Custodian as agent on behalf of the Depositary or Owner, pursuant to appropriate
instructions for transfer in a form satisfactory to the Issuer or the Foreign
Registrar or the Custodian, as the case may be, together with all such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of American Depositary Shares so
deposited. The Custodian will, upon request by the Depositary, issue or cause
to be issued written confirmations as to holdings of Shares, it being agreed and
understood that such confirmations do not constitute documents of title. No
Shares shall be accepted for deposit unless accompanied by evidence satisfactory
to the Depositary that any necessary approval has been granted by the
governmental body in The Republic of France, if any, which is then performing
the function of the regulation of currency exchange or which has jurisdiction
over foreign investment or regulates foreign ownership of French companies.
If required by the Depositary, Shares presented for deposit at any
time, whether or not the shareholders' accounts of the Issuer or the Foreign
Registrar are closed, shall also be accompanied by an agreement or assignment,
or other instrument satisfactory to the Depositary, which will provide for the
prompt transfer to the Depositary or the Custodian with respect to such Shares
of any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been registered
may thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
As long as the Depositary holds any Shares pursuant to this Deposit
Agreement, the Depositary shall ensure that at least one Share is owned in the
name of the Depositary and one Share is owned in the name of the Custodian, each
in registered form. All other Shares may be held either in registered or in
bearer form as permitted by the laws of The Republic of France and the statuts
of the Issuer from time to time.
SECTION 2.3 Execution and Delivery of Receipts.
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Upon receipt by the Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the shareholders' accounts of the Issuer or the
Foreign Registrar or the transfer books of the Custodian, if applicable, are
open), the Depositary may in its sole discretion require a proper acknowledgment
or other evidence from the Issuer, or the Foreign Registrar or the Custodian, as
applicable, that any Deposited Securities have been recorded upon the books of
the Issuer or the Foreign Registrar or the Custodian, if applicable, in the name
of the Depositary or its nominee or such Custodian or its nominee), together
with the other documents required as above specified, such Custodian shall
notify the Depositary of such deposit and the person or persons to whom or upon
whose written order a Receipt or Receipts are deliverable in respect thereof and
the number of American Depositary Shares to be evidenced thereby. Such
notification shall be made by letter or, at the request, risk and expense of the
person making the deposit, by cable, telex or facsimile transmission. Upon
receiving such notice from such Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.9, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
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The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books promptly,
upon any surrender of a Receipt, by the Owner in person or by a duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
and duly stamped as may be required by the laws of the State of New York and of
the United States of America. Thereupon the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary shall ensure that it has on hand at all times a
sufficient supply of Receipts to meet the demands for transfer.
The Depositary may appoint one or more co-transfer agents approved by
the Issuer for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Owners
or persons entitled to Receipts and will be entitled to protection and
indemnity to the same extent as the Depositary.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
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Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities which
correspond to the American Depositary Shares evidenced by such Receipt, and upon
payment of the fee of the Depositary for the surrender of Receipts as provided
in Section 5.9 and payment of all taxes and governmental charges payable in
connection with such surrender and withdrawal of the Deposited Securities, and
subject to the terms and conditions of this Deposit Agreement, the Issuer's
statuts and the Deposited Securities, the Owner of such Receipt shall be
entitled to the transfer of the Deposited Securities to an account registered in
the Issuer's shareholders' accounts and which is managed by the Custodian, as an
accredited financial intermediary, acting as agent on behalf of and in the name
of such Owner or such name as shall be designated by such Owner of the amount of
the Deposited Securities at the time corresponding to such Receipt. Such
transfer shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be transferred to an
account registered in the Issuer's shareholders' accounts and which is managed
by the Custodian, as an accredited financial intermediary, acting as agent on
behalf of and in the name of such Owner or such name as shall be designated by
such Owner. Thereupon, the Depositary shall, in its discretion, effect the
transfer of, or direct one (or more) of the Custodians, subject to Sections 2.6,
3.1 and 3.2, and to the other terms and conditions of this Deposit Agreement, to
effect the transfer of the amount of Deposited Securities which such Receipt
entitles the Owner to receive, except that the Depositary may make delivery to
such person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities which such
Receipt entitles the Owner to receive, or of any proceeds of sale of any
dividends or distributions which may at the time be held by the Depositary.
In the event any delivery of Deposited Securities under this Section
2.5 would otherwise require delivery of fractional Deposited Securities, the
Depositary may sell the amount of Deposited Securities corresponding to the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.1.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and
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Surrender of Receipts.
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As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presentor of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, 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 regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, registration of or the
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Depositary are closed, or if any such
action is deemed necessary or advisable by the
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Depositary or the Issuer at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or the statuts of the Issuer or
for any other reason, subject to the provisions of the following sentence. The
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended except as permitted in General Instruction I(A)(1) to Form F-6 (as
may be amended from time to time) under the Securities Act of 1933, which
currently permits suspension only in connection with (i) temporary delays caused
by closing the transfer books of the Depositary or the Issuer (or the appointed
agent for the Issuer for the registration of transfer of such 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 shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares. The Depositary shall comply with
written instructions from the Issuer requesting that the Depositary not accept
for deposit hereunder any Shares or rights reasonably identified in such
instructions in order to facilitate the Issuer's compliance with U.S. securities
laws or the laws of any state of the United States or the laws of The Republic
of France.
SECTION 2.7 Lost Receipts, etc.
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In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary shall be cancelled by the
Depositary and may not be reissued. The Depositary is authorized to destroy
Receipts so cancelled.
SECTION 2.9 Pre-Release of Receipts.
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Notwithstanding Section 2.3 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 ("Pre-
Release"). The Depositary may, pursuant to Section 2.5, deliver Shares upon the
receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
shall be (a) preceded or accompanied by a written representation from the person
to whom Receipts are to be delivered that such person, or its customer, owns the
Shares or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to disregard such limit from
time to time as it deems appropriate and may, with the prior written consent of
the Issuer, change such limit for purposes of general application.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
With respect to any Pre-Release (as defined in this Section 2.9),
neither the Issuer nor the Custodian shall be responsible to any Owners or
holders of Receipts for any liabilities or expenses (a) which may be imposed
under any United States Federal, state or local income tax laws, (b) which may
arise out of the failure of the Depositary to deliver Deposited Securities when
required under the terms of Section 2.5 hereof, or (c) the non-performance by
the Depositary or the Custodian of any obligations relating to any Pre-Release
under this Section 2.9 or any other agreement between the Depositary and the
Issuer relating to Pre-Release. The preceding sentence shall not apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer of sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (i) information relating to the Depositary or the Custodian, as applicable,
furnished in writing expressly for use in any of the foregoing documents, or,
(ii) material omissions from such information furnished by the Depositary or the
Custodian.
ARICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
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Any person presenting Shares for deposit or any Owner of a Receipt may
be required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, payment of
applicable French or other
taxes or governmental charges or legal or beneficial ownership or such
information relating to the registration of the Shares on the books of the
Issuer or the Foreign Registrar, if applicable, to execute such certificates and
to make such representations and warranties, as the Depositary may deem
necessary or proper or the Issuer may reasonably require upon written request to
the Depositary or the Custodian. The Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties are made
pertaining to the Receipt.
The Depositary shall provide the Issuer, upon the Issuer's request and
in a timely manner, with copies of any information or other material which it
receives pursuant to this Section 3.1.
SECTION 3.2 Liability of Owner for Taxes.
-----------------------------
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities which any Receipt entitles
the Owner to receive, such tax or other governmental charge shall be payable by
the Owner of such Receipt to the Depositary. The Depositary may refuse to
effect any transfer of such Receipt or any withdrawal of Deposited Securities
corresponding to American Depositary Shares evidenced by such Receipt until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner thereof any part or all of the Deposited
Securities corresponding to the American Depositary Shares evidenced by such
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
of such Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
--------------------------------
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any pre-
emptive rights of the holders of outstanding Shares and that the person making
such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares entitling the Owner to receive such Shares
by that person are not restricted under the Securities Act of 1933 or under the
laws of The Republic of France. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts in respect thereof.
SECTION 3.4 Information Requests.
---------------------
The Issuer may from time to time request Owners of Receipts to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously interested in
such Receipts as to the nature of such interest and various other matters. The
Depositary agrees to use reasonable efforts to comply with written instructions
received from the Issuer requesting that the Depositary forward any such
requests to the Owner and to forward to the Issuer any responses to such
requests received by the Depositary.
SECTION 3.5 Disclosure of Interest.
-----------------------
Notwithstanding any other provisions of this Deposit Agreement, each
Owner and holder of Receipts agrees to comply with the Company's statuts, as
they may be amended from time to time, and the laws of The Republic of France,
if applicable, with respect to any disclosure requirements regarding ownership
of Shares, all as if such Receipts were, for this purpose, the Shares
corresponding thereto.
In order to facilitate compliance with the notification requirements,
an Owner or holder of Receipts may deliver any notification to the Depositary
with respect to Shares to which American Depositary Shares evidenced by such
Receipts relate, and the Depositary shall, as soon as practicable, forward such
notification to the Issuer and, if applicable, the Societe des Bourses
-------------------
Francaises or any other authorities in The Republic of France.
----------
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
-------------------
Whenever the Depositary or the Custodian shall receive any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
shall, subject to the provisions of Section 4.5, convert such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees of the Depositary as provided in Section 5.9 hereof, if applicable) to
the Owners entitled thereto, in proportion to the number of American Depositary
Shares corresponding to such Deposited Securities held by them respectively;
provided, however, that in the event that the Issuer, the Custodian or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution in respect of any Deposited Securities
an amount on account of taxes, the amount distributed to the Owner of the
Receipts evidencing American Depositary Shares corresponding to such Deposited
Securities shall be reduced accordingly. Any fractional amounts shall be
rounded to the nearest whole cent and distributed to Owners entitled thereto.
The Issuer or its agent or the Depositary or its agent will remit to the
appropriate governmental authority or agency in The Republic of France all
amounts withheld and owing to such authority or agency. The Depositary shall
forward to the Issuer or its agent such information from its records as the
Issuer may reasonably request to enable the Issuer or its agent to file
necessary reports with governmental authorities or agencies, and the Depositary
or the Issuer or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
------------------------------------------------
Subject to the provisions of Sections 4.11 and 5.9, whenever the
Depositary or the Custodian shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4, the Depositary shall cause
the securities or property received by the Depositary or the Custodian to be
distributed to the Owners entitled thereto, in proportion to the number of
American Depositary Shares corresponding to such Deposited Securities held by
them respectively, in any manner that the Depositary, after consultation with
the Company, may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Issuer or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or holders) the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.9) shall be distributed by the Depositary to the Owners
entitled thereto as in the case of a distribution received in cash.
SECTION 4.3 Distributions in Shares.
------------------------
Subject to applicable U.S. and French law, and to the other terms of
this Deposit Agreement, in the event that the holders of Shares are granted the
option to receive dividends on such Shares in the form of cash or additional
Shares, Owners of Receipts shall be entitled to receive such option only with
the Issuer's prior written approval and the consent of the Depositary. If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, upon prior consultation with and
approval of the Issuer, and shall if the Issuer shall so request, distribute to
the Owners of outstanding Receipts entitled thereto, in proportion to the number
of American Depositary Shares corresponding to such Deposited Securities held by
them respectively, additional Receipts evidencing an aggregate number of
American Depositary Shares corresponding to the amount of Shares received as
such dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 and the payment
of fees of the Depositary as provided in Section 5.9. In lieu of delivering
Receipts for fractional American Depositary Shares in
any such case, the Depositary shall sell the amount of Shares corresponding to
the aggregate of such fractions and distribute the net proceeds, all in the
manner and subject to the conditions described in Section 4.1. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also entitle the Owner thereof to receive the additional Shares
distributed upon the Deposited Securities corresponding thereto.
SECTION 4.4 Rights.
-------
In the event that the Issuer 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 shall have discretion,
after consultation with the Issuer, as to the procedure to be followed in making
such rights available to any Owners including the distribution of warrants or
other instruments therefor as it deems appropriate or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Issuer to the Depositary that (a) the
Issuer has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Issuer has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it shall,
if possible, sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.9 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Issuer upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration, it being
understood that the Issuer shall have no obligation to furnish any such opinion.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
-------------------------------
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments
upon surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution with regard to one or more Owners
can be effected only with the approval or license of any government or agency
thereof, the Depositary shall file such application for approval or license, if
any, as it may deem desirable; provided, however, that the Issuer shall not be
-------- -------
obligated to make any such filing.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States and/or to one or more
Owners of Receipts, or if any approval or license of any governmental authority
or agency thereof which is required for such conversion is denied or in the
opinion of the Depositary is not obtainable, or if any such approval or license
is not obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto for whom such conversion is
not practicable.
SECTION 4.6 Fixing of Record Date.
----------------------
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 for any
reason the Depositary gives effect to a change in the number of Shares that
correspond to each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Deposited Securities other than
Shares, or whenever for any administrative purpose the Depositary deems it
necessary to do so, the Depositary shall fix a record date, after consultation
with the Issuer, when practicable, (which shall be to the extent practicable,
the same record date fixed by the Issuer), and with the prior approval of the
Issuer, when practicable, (a) for the determination of the Owners who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will correspond to the changed number of Shares or (c)
to facilitate the administrative purpose for which the record date was set.
Subject to the provisions of Sections 4.1 through 4.5 and to the other terms and
conditions of this Deposit Agreement, the Owners on such record date shall be
entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
SECTION 4.7 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 Owners (a) a summary in English of the notice of such meeting sent
by the Issuer to the Depositary pursuant to Section 5.6, (b) a statement that
the Owners and holders of Receipts as of the close of business on a record date
established by the Depositary pursuant to Section 4.6 herein will be entitled,
subject to any applicable provisions of French law, the statuts of the Issuer
and the Deposited Securities to exercise the voting rights, if any, pertaining
to the Shares or other Deposited Securities represented by such Owner's American
Depositary Shares, (c) summaries in English of any materials or other documents
provided by the Issuer for the purpose of enabling such Owner to exercise such
voting rights, and (d) a statement as to the manner in which voting instructions
may be given to the Depositary, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of the following paragraph if no instruction is received or if the Depositary
receives improperly completed voting instructions or a blank proxy, and setting
forth the date established by the Depositary for the receipt of such
instructions (the "Receipt Date").
Upon receipt by the Depositary of properly completed voting
instructions, on or before the Receipt Date, the Depositary shall either, in its
discretion, vote such Deposited Securities in accordance with such instructions
or forward such instructions to the Custodian, and the Custodian shall endeavor,
insofar as practicable and permitted under any applicable provisions of French
law, the statuts of the Issuer and the Deposited Securities, to vote or cause to
be voted the Deposited Securities in accordance with any nondiscretionary
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions. If the Depositary
receives improperly completed voting instructions or receives a blank proxy from
an Owner with respect to any of the Shares or other Deposited Securities on or
before the Receipt Date, the Depositary will, insofar as permitted under any
applicable provisions of French law,
the statuts of the Issuer and the Deposited Securities, deem such Owner to have
instructed the Depositary to give a proxy to the President of the General
Meeting of Shareholders to vote such Deposited Securities in favor of the
resolutions presented or approved by the Board of Directors of the Company and
against any other resolution not so presented or approved. If no instructions
are received by the Depositary from an Owner with respect to any of the Shares
or other Deposited Securities on or before the Receipt Date, the Depositary
will, insofar as permitted under any applicable provisions of French law, the
statuts of the Issuer and the Deposited Securities, deem such Owner to have
instructed the Depositary to give a proxy to the President of the General
Meeting of Shareholders to vote such Deposited Securities in favor of the
resolutions presented or approved by the Board of Directors of the Company and
against any other resolution not so presented or approved.
The Depositary will take no action to impair the ability of the Custodian
to vote the number of Shares necessary to carry out the instructions of all
Owners under this Section 4.7.
SECTION 4.8 Changes Affecting Deposited Securities.
---------------------------------------
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
entitle the Owners thereof to receive the new Deposited Securities so received
in exchange or conversion, unless additional Receipts are delivered pursuant to
the following sentence. In any such case the Depositary may with the Issuer's
approval, and shall if the Issuer shall so request, execute and deliver
additional Receipts as in the case of a dividend in 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 Section in respect of the Deposited Securities, the
Issuer shall notify the Depositary in writing of such occurrence and, as soon as
practicable after receipt of such notice from the Issuer, the Depositary shall
give notice thereof in writing to all Owners of Receipts.
SECTION 4.9 Reports.
--------
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the
holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Issuer. The Depositary shall also
send to the Owners copies of such reports when furnished by the Issuer pursuant
to Section 5.6. Any such reports and communications, including any such proxy
solicitation material furnished to the Depositary by the Issuer, will be
furnished in French, unless the Issuer determines in its discretion to furnish
such materials or any of them in English or unless such materials are required
to be furnished in English as provided in Section 5.6.
In addition, upon the express written request of the Issuer, the
Depositary shall furnish promptly to the Commission copies of all annual or
other periodic reports and other notices or communications which the Depositary
receives as the holder of the Deposited Securities from the Issuer and which are
not so furnished to or filed with the Commission pursuant to the reporting
requirements of the Securities Exchange Act of 1934 or any other requirement of
the Commission.
Upon the request of the Depositary, the Issuer shall furnish to the
Depositary the name of each dealer known to the Issuer depositing Shares against
issuance of American Depositary Shares evidenced by Receipts during the period
covered by reports required to be filed with the Commission.
SECTION 4.10 Lists of Owners.
----------------
Promptly upon request by the Issuer, the Depositary shall, at the
expense of the Issuer (unless otherwise agreed to by the Issuer and the
Depositary), furnish to it a list, as of a recent date, of the names, addresses
and holdings of American Depositary Shares by all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
------------
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale 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 any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
The Depositary will use reasonable efforts to follow the procedures
established by the French Treasury for eligible United States Owners to benefit
from the reduced withholding tax rate of 15% upon payment of any dividend and to
receive the payment of any avoir fiscal. To effect such recovery and receipt,
----- ------
the Depositary shall
provide U.S. resident Owners, and any other holders, upon request, with the
appropriate French tax forms and instructions for completing such forms, which
shall be provided by the Issuer to the Depositary, and shall advise such U.S.
resident Owners to return such forms to it properly completed and executed. Upon
receipt of such forms properly completed and executed by U.S. resident Owners,
the Depositary shall promptly cause them to be filed with the appropriate French
tax authorities, and upon receipt of any resulting remittance, the Depositary
shall distribute to the Owners entitled thereto, as soon as practicable, the
proceeds thereof in Dollars in accordance with Section 4.5.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
-----------------------------------------------------------
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners and the Issuer, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts.
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 hereunder or at the request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or with the approval of Issuer appoint a Registrar or one
or more co-registrars for registry of such Receipts in accordance with any
requirements of such exchange or exchanges. Such Registrar or co-registrars may
be removed and a substitute or substitutes appointed by the Depositary upon the
request or with the approval of the Issuer.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
-----------------------------------------------------------
Issuer.
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Neither the Depositary nor the Issuer nor any of their directors,
employees, agents or controlling persons (as defined under the Securities Act of
1933) shall incur any liability to any Owner or holder of any Receipt, if by
reason of any provision of any present or future law or regulation of the United
States, The Republic of France or any other country, or of any governmental or
regulatory authority or stock exchange, or by
reason of any provision, present or future, of the statuts of the Issuer, or the
Deposited Securities or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Issuer nor any of their
directors, employees, agents or controlling persons (as defined under the
Securities Act of 1933) shall be prevented or forbidden from, or delayed in or
be subject to any civil or criminal penalty on account of, doing or performing
any act or thing which by the terms of this Deposit Agreement it is provided
shall be done or performed; nor shall the Depositary or the Issuer nor any of
their directors, employees, agents or controlling persons (as defined under the
Securities Act of 1933) incur any liability to any Owner or of any Receipt by
reason of any non-performance or delay, caused as aforesaid, in the 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. Where, by
the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer.
------------------------------------------------------------
The Issuer and its directors, employees, agents and controlling
persons (as defined under the Securities Act of 1933) assume no obligation nor
shall they be subject to any liability under this Deposit Agreement to Owners or
holders of Receipts, except that the Issuer agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its directors, employees, agents and controlling
persons (as defined under the Securities Act of 1933) assume no obligation nor
shall they be subject to any liability under this Deposit Agreement to any Owner
or holder of any Receipt (including, without limitation, liability with respect
to the validity or worth of the Deposited Securities), except that the
Depositary agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor the Issuer nor any of their directors,
employees, agents and controlling persons (as defined under the Securities Act
of 1933) shall 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 their opinions may involve them in expense or
liability, unless indemnity satisfactory to them against all expense and
liability shall be furnished as often as may be required, and the Custodian
shall not 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 Issuer nor any of their directors,
employees, agents and controlling persons (as defined under the Securities Act
of 1933) shall be liable for any action or nonaction by them in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner or any other person believed by it in
good faith to be competent to give such advice or information.
Each of the Depositary, the Issuer and their respective directors,
employees, agents and controlling persons (as defined under the Securities Act
of 1933) may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by such person to be genuine and
to have been signed or presented by the proper party or parties.
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, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or omission to act is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
------------------------------------------
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary by the
Issuer and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon
such successor depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor;
but such predecessor, nevertheless, upon payment of all sums due it and on the
written request of the Issuer shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Owners of all outstanding Receipts. Any such successor
depositary shall promptly mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodians.
---------------
The Depositary has appointed the principal Paris office of the
Custodian as agent of the Depositary for the purposes of this Deposit Agreement.
The Custodian or its successors, which shall be accredited financial
intermediaries acting through a specified office located in The Republic of
France, in acting hereunder shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it. The
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, and with the prior approval of the Issuer, appoint a
substitute custodian or custodians which shall be an accredited financial
intermediary acting through a specified office located in The Republic of
France, approved by the Issuer, such approval not to be unreasonably withheld,
each of which shall thereafter be a Custodian hereunder. Whenever the Depositary
in its discretion determines that it is in the best interest of the Owners to do
so, it may, with the prior approval of the Issuer, appoint substitute or
additional custodian or custodians, which shall be an accredited intermediary
acting through a specified office located in The Republic of France, approved by
the Issuer, such approval not to be unreasonably withheld, each of which shall
thereafter be one of the Custodians hereunder. Upon demand of the Depositary the
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary. Immediately
upon any such change, the Depositary shall give notice thereof in writing to all
Owners of Receipts.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such
successor depositary shall in no way impair the authority of the Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of the Custodian or as required by the laws of The Republic of
France, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority as agent
hereunder of such successor depositary.
SECTION 5.6 Notices and Reports.
--------------------
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer shall furnish to the Depositary in English annual reports
(including audited consolidated financial statements), quarterly reports
(including certain unaudited summary financial information), summaries in
English or English versions (except as provided in Section 4.9) of notices of
shareholders' meetings and other reports and communications that are made
generally available by the Issuer to holders of Deposited Securities. Unless
otherwise instructed in writing by the Issuer, the Depositary will arrange for
the mailing of copies of such reports and summaries so furnished to the
Depositary to all Owners at the Issuer's expense. The Issuer will timely provide
the Depositary with the quantity of such notices, reports, and communications,
translated into English (except as provided in Section 4.9), as may be requested
by the Depositary from time to time in order for the Depositary to effect such
mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
-----------------------------------------------
The Issuer agrees that in the event of any issuance or distribution by
the Issuer of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be satisfactory to the Depositary, stating whether or not the Distribution
requires a Registration Statement under the Securities Act of 1933 to be in
effect prior to making such Distribution available to Owners entitled thereto.
If in the opinion of such counsel a Registration Statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a Registration Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares
under the Securities Act of 1933. Nothing in this Section 5.7 or elsewhere in
this Deposit Agreement shall create any obligation on the part of the Issuer or
the Depositary to file a registration statement in respect of any such
securities or rights.
SECTION 5.8 Indemnification.
----------------
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and the Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Issuer or any of its
directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which may arise out of any Pre-Release (as defined
in Section 2.9) to the extent that any such liability or expense arises in
connection with (a) any United States Federal, state or local income tax laws,
(b) the failure of the Depositary to deliver Deposited Securities when required
under the terms of Section 2.5 hereof or (c) the non-performance by the
Depositary or the Custodian of any obligations relating to any Pre-Release under
Section 2.9 of this Deposit Agreement or any other agreement between the
Depositary and the Issuer relating to Pre-Release. However, the indemnities
contained in the preceding paragraph shall apply to any liability or expense
which may arise out of any misstatement or alleged misstatement or omission or
alleged omission in any registration statement, proxy statement, prospectus (or
placement memorandum) or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or the Custodian, as applicable, furnished in writing
to the Issuer by the Depositary or the Custodian, as applicable, expressly for
use in any of the foregoing documents, or, (ii) material omissions from such
information furnished by the Depositary or the Custodian.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
The obligations set forth in this Section 5.8 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying
Person") of the commencement of any indemnifiable action or claim promptly after
such Indemnified Person becomes aware of such commencement and shall consult in
good faith with the Indemnifying Person as to the conduct of the defense of such
action or claim, which defense shall be reasonable under the circumstances. No
Indemnified Person shall compromise or settle any such action or claim without
the consent in writing of the Indemnifying Person.
SECTION 5.9 Charges of Depositary.
----------------------
The Issuer agrees to pay the fees, reasonable expenses and out-of-
pocket charges of the Depositary and those of any Registrar only in accordance
with agreements in writing entered into between the Depositary and the Issuer
from time to time. The Depositary shall present its statement for such charges
and expenses to the Issuer once every three months. The charges and expenses of
the Custodian are for the sole account of the Depositary. Any written agreement
signed by the Issuer and the Depositary relating to the Depositary's fees and
expenses under this Deposit Agreement shall be binding upon the Issuer and the
Depositary until it is expressly amended or superseded by a subsequent written
agreement, irrespective of whether such agreement was entered into prior to,
simultaneously with or subsequent to this Deposit Agreement, and notwithstanding
any provision of this Deposit Agreement that might be construed to be
inconsistent with such agreement.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 hereof), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the share register of the
Issuer or Foreign Registrar and applicable to transfers of Shares to the name of
the Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, the execution and delivery of Receipts
pursuant to Sections 4.3 and 4.4 and the surrender of Receipts pursuant to
Section 2.5 and (6) a fee of $1.00 or less per certificate for a Receipt or
Receipts for transfers made pursuant to Section 2.4.
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
----------------------------------
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Issuer requests that such papers be retained for a longer period or turned over
to the Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
------------
Subject to the provisions of Section 5.4, the Issuer agrees not to
appoint any other depositary for issuance of American Depositary Receipts issued
pursuant to this Deposit Agreement so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
-------------------------------------
From time to time, upon the written request of the Depositary, the
Issuer shall provide to the Depositary a list setting forth, to the actual
knowledge of the Issuer, those persons or entities who beneficially own
Restricted Securities and the Issuer shall update that list on a regular basis.
The Issuer agrees to advise in writing each of the persons or entities so listed
that such Restricted Securities are ineligible for deposit hereunder. The
Depositary may rely on such a list or update but shall not be liable for any
action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
----------
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the Issuer
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial existing right of Owners, shall,
however, not become effective as to outstanding Receipts until the expiration of
ninety days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement or Receipts as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities corresponding thereto, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2 Termination.
------------
The Depositary shall at any time at the direction of the Issuer
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Issuer a written notice
of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
corresponding to the American Depositary Shares evidenced by such Receipt. If
any Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof, and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
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 (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for claims of Owners as
Creditors of the Depositary for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). Upon the termination of this Deposit Agreement,
the Issuer shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8 and 5.9 hereof
which shall survive the termination of this Deposit Agreement.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 Counterparts.
-------------
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any holder or Owner of a Receipt during business hours at the principal
office of the Depositary and the principal Paris office of the Custodian.
SECTION 7.2 No Third Party Beneficiaries.
-----------------------------
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.3 Severability.
-------------
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Holders and Owners as Parties; Binding Effect.
----------------------------------------------
The holders and Owners of Receipts from time to time shall be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
--------
Any and all notices to be given to the Issuer shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Business Objects S.A.,
Tour Chantecoq, 0, xxx Xxxxxxxxx, 00000 Xxxxxxx, Xxxxxx, Attention to President,
or any other place to which the Issuer may have transferred its principal
office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
--------------
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York. The terms of any Shares held
hereunder, however, shall be governed by the laws of The Republic of France.
SECTION 7.7 Compliance with U.S. Securities Laws.
-------------------------------------
Notwithstanding anything in this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
IN WITNESS WHEREOF, BUSINESS OBJECTS S.A. and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first set forth above and
all Owners shall become parties hereto upon acceptance by them of Receipts
issued in accordance with the terms hereof.
BUSINESS OBJECTS S.A.
By: _______________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: _______________________
Name:
Title:
Exhibit A to Deposit Agreement
NO. ____________________________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE ENTITLES
THE OWNER TO RECEIVE ONE DEPOSITED SHARE)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
NOMINAL VALUE OF ONE FRENCH FRANC EACH OF
BUSINESS OBJECTS S.A.
(INCORPORATED UNDER THE LAWS THE REPUBLIC OF FRANCE)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that _________________________________________________, or
registered assigns IS THE OWNER OF______________________________________________
AMERICAN DEPOSITARY SHARES
entitling the Owner to receive deposited ordinary shares, nominal value one
French Franc each (herein called "Shares"), of Business Objects S.A.,
incorporated under the laws The Republic of France (herein called the "Issuer").
At the date hereof, each American Depositary Share entitles the Owner thereof to
receive one Share which is either deposited or subject to deposit under the
deposit agreement at the designated Paris offices of Banque Nationale De Paris,
00, Xxx Xxxxxxx, 00000 Xxxxx, Xxxxxx; Banque Paribas, 00
XX xx xx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx; Banque Worms, 00 Xxxxxxxxx Xxxxxxxxx,
00000 Xxxxx, Xxxxxx; Credit Lyonnais, 00 Xxxxxxxxx xxx Xxxxxxxx XX, 00000 Xxxxx,
Xxxxxx; Banque Indosuez, 00 Xxx xx Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx; and at the
designated Nantes Cedex office of Societe Generale, France, 00, xxx xx Xxxxx xx
Xxx, Department Titres XX Xxxxxx, XX 0000-00000 Xxxxxx Xxxxx, Xxxxxx (herein
collectively called the "Custodian"). The Depositary's Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
---------------------
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the Amended and Restated Deposit Agreement, dated as of May 8, 1996, as
amended and restated as of December 30, 1998 (herein called the "Deposit
Agreement"), by and among the Issuer, the Depositary, and all Owners and holders
from time to time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and become bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights of Owners and
holders of the Receipts and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and 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.
Capitalized terms not defined herein shall have the meanings set forth in the
Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
----------------------------------------------
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Issuer's
statuts and the Deposited Securities, the Owner hereof is entitled to the
transfer of the Deposited Securities to an account registered in the Issuer's
shareholders' accounts and which is managed by the Custodian, as an accredited
financial intermediary, acting as agent on behalf of and in the name of such
Owner or such name as shall be designated by such Owner, of the amount of the
Deposited Securities at the time corresponding to such Receipt. Such transfer
shall be made, as hereinafter provided, without unreasonable delay.
In the event any delivery of Deposited Securities under Section 2.5 of the
Deposit Agreement would otherwise require delivery of fractional Deposited
Securities, the Depositary may sell the amount of Deposited Securities
corresponding to the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.1 of the Deposit Agreement.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
--------------------------------------------------
The transfer of this Receipt is promptly registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon any surrender of this Receipt properly endorsed
for transfer or accompanied by proper instruments of transfer and funds
sufficient to pay any applicable transfer taxes and the expenses of the
Depositary, and duly stamped as may be required by the laws of the State of New
York and of the United States of America, and upon compliance with such
regulations, if any, as the Depositary may establish for such
purpose. This Receipt may be split into other such Receipts, or may be combined
with other such Receipts into one Receipt, evidencing the same aggregate number
of American Depositary Shares as the Receipt or Receipts surrendered. The
Depositary shall ensure that it has on hand at all times a sufficient supply of
Receipts to meet the demands for transfer. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination, or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may require payment from the depositor
of Shares or the presentor of the Receipt of a sum sufficient to reimburse it
for any tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
provided in 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 regulations the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, paragraph 24 of this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, registration of or the transfer
of Receipts in particular instances may be refused, or the registration of
transfer of outstanding Receipts generally may be suspended, during any period
when the transfer books of the Depositary are closed, or if any such action is
deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement, the statuts of the Issuer or this Receipt, or for any other reason,
subject to the provisions of the following sentence. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
except as permitted in General Instruction I(A)1 to Form F-6 (as may be amended
from time to time) under the Securities Act of 1933, which currently permits
suspension only in connection with (i) temporary delays caused by closing the
transfer books of the Depositary or the Issuer or the
appointed agent for the Issuer for the registration of transfer of such 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 shall not
knowingly accept for deposit under the Deposit Agreement any Shares required to
be registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
----------------------------
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities corresponding hereto, such tax or
other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer of this Receipt or
any withdrawal of Deposited Securities corresponding to American Depositary
Shares evidenced by such Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Owner
hereof any part or all of the Deposited Securities corresponding to the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
------------------------
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable, and free of any pre-emptive
rights of the holders of outstanding Shares and that the person making such
deposit is duly authorized so to do. Every such person shall also be deemed to
represent that the deposit of such Shares and
the sale of Receipts evidencing American Depositary Shares corresponding to such
Shares by that person are not restricted under the Securities Act of 1933 or
under the laws of the Republic of France. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
--------------------------------------------------
Any person presenting Shares for deposit or any Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, payment of
applicable French or other taxes or governmental charges or legal or beneficial
ownership or such information relating to the registration of the Shares on the
books of the Issuer or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper or the Issuer may reasonably require upon written
request to the Depositary or the Custodian. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made pertaining to the Receipt. No Shares shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by the governmental body in The Republic of France, if
any, which is then performing the function of the regulation of currency
exchange or which has jurisdiction over foreign investment.
7. CHARGES OF DEPOSITARY.
---------------------
The Issuer agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The
Depositary shall present its statement for such charges and expenses to the
Issuer once every three months. The charges and expenses of the Custodian are
for the sole account of the Depositary. Any written agreement signed by the
Issuer and the Depositary relating to the Depositary's fees and expenses under
the Deposit Agreement shall be binding upon the Issuer and the Depositary until
it is expressly amended or superseded by a subsequent written agreement,
irrespective of whether such agreement was entered into prior to, simultaneously
with or subsequent to the Deposit Agreement, and notwithstanding any provision
of the Deposit Agreement that might be construed to be inconsistent with such
agreement.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), whichever applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the share
register of the Issuer or Foreign Registrar and applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile transmission expenses as are expressly
provided in the Deposit Agreement, (4) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.5 of the
Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares
(or portion thereof) for the execution and delivery of Receipts pursuant to
Section 2.3 of the Deposit Agreement, the execution and delivery of Receipts
pursuant to Section 4.3 of the Deposit Agreement and 4.4 of the Deposit
Agreement and the surrender of Receipts pursuant to Section 2.5 of the Deposit
Agreement and (6) a fee of $1.00 or less per certificate for a Receipt or
Receipts for transfers made pursuant to Section 2.4 of the Deposit Agreement.
The Depositary, subject to Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Issuer and its affiliates and in
Receipts.
8. LOANS AND PRE-RELEASE OF SHARES AND RECEIPTS.
--------------------------------------------
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary
may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.2 of the Deposit Agreement ("Pre-Release"). The Depositary may,
pursuant to Section 2.5 of the Deposit Agreement, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-
Release shall be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems appropriate and may, with the
prior written consent of the Issuer, change such limit for purposes of general
application.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
With respect to any Pre-Release (as defined in Section 2.9 of the
Deposit Agreement), neither the Issuer nor the Custodian shall be responsible to
any Owners or holders of Receipts for any liabilities or expenses (a) which may
be imposed under any
United States Federal, state or local income tax laws, (b) which may arise out
of the failure of the Depositary to deliver Deposited Securities when required
under the terms of Section 2.5 of the Deposit Agreement, or (c) the non-
performance by the Depositary or the Custodian of any obligations relating to
any Pre-Release under Section 2.9 of the Deposit Agreement or any other
agreement between the Depositary and the Issuer relating to Pre-Release. The
preceding sentence shall not apply to any liability or expense which may arise
out of any misstatement or alleged misstatement or omission or alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or preliminary prospectus (or preliminary placement memorandum)
relating to the offer of sale of American Depositary Shares, except to the
extent any such liability or expense arises out of (i) information relating to
the Depositary or the Custodian, as applicable, furnished in writing expressly
for use in any of the foregoing documents, or, (ii) material omissions from such
information furnished by the Depositary or the Custodian.
9. TITLE TO RECEIPTS.
-----------------
It is a condition of this Receipt and every successive holder and
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt (and to the American Depositary Shares evidenced thereby),
when properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument, provided, however, that the Depositary, notwithstanding any notice
to the contrary, may treat the person in whose name this Receipt is registered
on the books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement or for all
other purposes.
10. 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 or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
-------------------------------------
The Issuer currently is subject to the periodic reporting requirements
of the Securities Exchange Act of 1934 and, accordingly, files certain reports
with the Securities and Exchange Commission (hereinafter called the
"Commission"). Such reports will be available for inspection and copying by
holders and Owners at the public reference facilities maintained by the
Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of
Receipts at its Corporate Trust Office any reports and communications, including
any proxy soliciting material, received from the Issuer which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Issuer. The Depositary will also send to Owners of Receipts copies of such
reports when furnished by the Issuer pursuant to Section 5.6 of the Deposit
Agreement. Any such reports and communications, including any such proxy
solicitation material furnished to the Depositary by the Issuer, will be
furnished in French, unless the Issuer determines in its discretion to furnish
such materials or any of them in English or unless such materials are required
to be furnished in English as provided in Section 5.6 of the Deposit Agreement.
In addition, upon the express written request of the Issuer, the
Depositary shall furnish promptly to the Commission copies of all annual or
other periodic reports and other notices or communications which the Depositary
receives as the holder of the Deposited Securities from the Issuer and which are
not so furnished to or filed with the Commission pursuant to the reporting
requirements of the Securities Exchange Act of 1934 or any other requirement of
the Commission.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts and the Issuer provided that such inspection shall not
be for the purpose of communicating with Owners of Receipts in the interest of a
business or object other than the business of the Issuer or a matter related to
the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
---------------------------
Whenever the Depositary or the Custodian receives any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall,
subject to the terms of the Deposit Agreement, convert such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement,
if applicable) to the Owners of Receipts entitled thereto, in proportion to the
number of American Depositary Shares corresponding to such Deposited Securities
held by them respectively; provided, however, that in the event that the Issuer,
the Custodian or the Depositary shall be required to withhold and does withhold
from such cash dividend or such other cash distribution in respect of any
Deposited Securities an amount on account of taxes, the amount distributed to
the Owners of the Receipts evidencing American Depositary Shares corresponding
to such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary or the Custodian receives any distribution
other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by the Depositary or
the Custodian to be distributed to the Owners of Receipts entitled thereto, in
proportion to the number of American Depositary Shares corresponding to such
Deposited Securities held by them respectively, in any manner that the
Depositary, after consultation with the Issuer, may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners of Receipts entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash.
Subject to applicable U.S. and French law, and to the other terms of
the Deposit Agreement, in the event that the holders of Shares are granted the
option to receive dividends on such Shares in the form of cash or additional
Shares, Owners of Receipts shall be entitled to receive such option only with
the Issuer's prior written approval and the consent of the Depositary. If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, upon prior consultation with and
approval of the Issuer, and shall if the Issuer shall so request, distribute to
the Owners of outstanding Receipts entitled thereto, in proportion to the number
of American Depositary Shares corresponding to such Deposited Securities held by
them respectively, additional Receipts evidencing an aggregate number of
American Depositary Shares
entitling the Owner thereof to receive the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares corresponding to the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions set forth in
Section 4.1 of the Deposit Agreement. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also entitle the
Owner thereof to receive the additional Shares distributed upon the Deposited
Securities corresponding thereto.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale 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 any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
The Depositary will use reasonable efforts to follow the procedures
established by the French Treasury for eligible United States Owners to benefit
from the reduced withholding tax rate of 15% upon payment of any dividend and to
receive the payment of any avoir fiscal. To effect such recovery and receipt,
----- ------
the Depositary shall provide U.S. resident Owners, and any other holders, upon
request, with the appropriate French tax forms and instructions for completing
such forms, which shall be provided by the Issuer to the Depositary, and shall
advise such U.S. resident Owners to return such forms to it
properly completed and executed. Upon receipt of such forms properly completed
and executed by U.S. resident Owners, the Depositary shall promptly cause them
to be filed with the appropriate French tax authorities, and upon receipt of any
resulting remittance, the Depositary shall distribute to the Owners entitled
thereto, as soon as practicable, the proceeds thereof in Dollars in accordance
with Section 4.5. of the Deposit Agreement.
13. CONVERSION OF FOREIGN CURRENCY.
------------------------------
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution with regard to one or more Owners
can be effected only with the approval or license of any government or agency
thereof, the Depositary shall file such application for approval or license, if
any, as it may deem desirable; provided, however, that the Issuer shall not be
-------- -------
obligated to make any such filing.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States and/or to one or more
Owners of Receipts, or if any approval or license of any governmental authority
or agency thereof which is required for such conversion is denied or in the
opinion of the Depositary is not obtainable, or if any such approval or license
is not obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto for whom such conversion is not
practicable.
14. RIGHTS.
------
In the event that the Issuer 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 shall have discretion,
after consultation with the Issuer, as to the procedure to be followed in making
such rights available to any Owners including the distribution of warrants or
other instruments thereof as it deems appropriate or in disposing of such rights
on behalf of any Owners and making the net proceeds available to such Owners or,
if by the terms of such rights offering or, for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary may distribute, to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees of the Depositary
and any other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, exercise the rights and purchase the
Shares, and the Issuer shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.2 of
the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement,
execute and deliver Receipts to such Owner. In the case of a distribution
pursuant to this paragraph, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it shall, if
possible, sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.9 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Issuer upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration, it being understood
that this Issuer shall have no obligation to furnish any such opinion.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
15. 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 for any reason the
Depositary gives effect to a change in the number of Shares that correspond to
each American Depositary Share, or whenever the Depositary shall receive notice
of any meeting of holders of Deposited Securities other than Shares, or whenever
for any administrative purpose the Depositary deems it necessary to do so, the
Depositary shall fix a record date, after consultation with the Issuer, when
practicable, (which shall be to the extent practicable, the same record date
fixed by the Issuer), and with the prior approval of the Issuer, when
practicable, (a) for the determination of the Owners of Receipts who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will correspond to the changed number of Shares or (c)
to facilitate the administrative purpose for which the record date was set.
Subject to the provisions of Sections 4.1 through 4.5 of the Deposit Agreement
and to the other terms and conditions of the Deposit Agreement, the Owners on
such record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
16. 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 Owners (a) a summary in English of the notice of such meeting sent
by the Issuer to the Depositary pursuant to Section 5.6 of the Deposit
Agreement, (b) a statement that the Owners and
holders of Receipts as of the close of business on a record date established by
the Depositary pursuant to Section 4.6 of the Deposit Agreement will be
entitled, subject to any applicable provisions of French law, the statuts of the
Issuer and the Deposited Securities to exercise the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by such
Owner's American Depositary Shares, (c) summaries in English of any materials or
other documents provided by the Issuer for the purpose of enabling such Owner to
exercise such voting rights, and (d) a statement as to the manner in which
voting instructions may be given to the Depositary, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of the following paragraph if no instruction is received,
or if the Depositary receives improperly completed voting instructions or a
blank proxy and setting forth the date established by the Depositary for the
receipt of such instructions (the "Receipt Date").
Upon receipt by the Depositary of properly completed voting
instructions, on or before the Receipt Date, the Depositary shall either, in its
discretion, vote such Deposited Securities in accordance with such instructions
or forward such instructions to the Custodian, and the Custodian shall endeavor,
insofar as practicable and permitted under any applicable provisions of French
law, the statuts of the Issuer and the Deposited Securities, to vote or cause to
be voted the Deposited Securities in accordance with any nondiscretionary
instructions set forth in such request. . The Depositary shall not vote or
attempt to exercise the right to vote that attaches to the Shares or other
Deposited Securities, other than in accordance with such instructions. If the
Depositary receives improperly completed voting instructions or receives a blank
proxy from an Owner with respect to any of the Shares or other Deposited
Securities on or before the Receipt Date, the Depositary will, insofar as
permitted under any applicable provisions of French law, the statuts of the
Issuer and the Deposited Securities, deem such Owner to have instructed the
Depositary to give a proxy to the President of the General Meeting of
Shareholders to vote such Deposited Securities in favor of the resolutions
presented or approved by the
Board of Directors of the Company and against any other resolution not so
presented or approved. If no instructions are received by the Depositary from an
Owner with respect to any of the Shares or other Deposited Securities on or
before the Receipt Date, the Depositary will, insofar as permitted under any
applicable provisions of French law, the statuts of the Issuer and the Deposited
Securities, deem such Owner to have instructed the Depositary to give a proxy to
the President of the General Meeting of Shareholders to vote such Deposited
Securities in favor of the resolutions presented or approved by the Board of
Directors of the Company and against any other resolution not so presented or
approved.
The Depositary will take no action to impair the ability of the Custodian
to vote the number of Shares necessary to carry out the instructions of all
Owners under Section 4.7 of the Deposit Agreement.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
--------------------------------------
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Issuer or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth entitle the Owner thereof to receive the new Deposited
Securities so received in exchange or conversion, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may with the Issuer's approval, and shall if the Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in 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 Section in respect of the Deposited Securities, the
Issuer shall notify the Depositary in writing of such occurrence and, as soon as
practicable after receipt of such notice from the Issuer, the Depositary shall
give notice thereof in writing to all Owners of Receipts.
18. LIABILITY OF THE ISSUER AND DEPOSITARY.
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Neither the Depositary nor the Issuer nor any of their directors,
employees, agents or controlling persons (as defined under the Securities Act of
1933) shall incur any liability to any Owner or holder of any Receipt, if by
reason of any provision of any present or future law of the United States, The
Republic of France, or any other country, or of any other governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the statuts of the Issuer, or the Deposited Securities or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Issuer nor any of their directors, employees, agents or
controlling persons (as defined under the Securities Act of 1933) shall be
prevented or forbidden from or be subject to any civil or criminal penalty on
account of doing or performing any act or thing which by the terms of the
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary or the Issuer incur any liability to any Owner or holder of a Receipt
by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of the Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of
the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners of Receipts, and the
Depositary may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Depositary
shall not make such distribution or offering, and shall allow any rights, if
applicable, to lapse. Neither the Issuer nor the Depositary nor any of their
directors, employees, agents or controlling persons (as defined under the
Securities Act of 1933) assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Owners or holders of Receipts, except
that they agree to perform their obligations specifically set forth in the
Deposit Agreement without negligence or bad faith. The Depositary shall not be
subject to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Issuer nor any of their directors,
employees, agents or controlling persons (as defined under the Securities Act of
1933) shall 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 or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not 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 Issuer nor any of their directors, employees, agents or
controlling persons (as defined under the Securities Act of 1933) shall be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or holder of a Receipt, or any other person believed by it in
good faith to be competent to give such advice or information. Each of the
Depositary, the Issuer and their respective directors, employees, agents and
controlling persons (as defined under the Securities Act of 1933) may rely and
shall be protected in acting upon any written notice, request, direction or
other document believed by such person to be genuine and to have been signed or
presented by the proper party or parties.
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 a matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary. The Depositary
shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is
cast or the effect of any such vote, provided that any such action or omission
to act is in good faith. The Issuer agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and the Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the fees and expenses of counsel) 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, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Issuer or
any of its directors, employees, agents and affiliates. The indemnities
contained in the preceding sentence shall not extend to any liability or expense
which may arise out of any Pre-Release (as defined in Section 2.9 of the Deposit
Agreement) to the extent that any such liability or expense arises in connection
with (a) any United States Federal, state or local income tax laws, (b) the
failure of the Depositary to deliver Deposited Securities when required under
the terms of Section 2.5 of the Deposit Agreement or (c) the non-performance by
the Depositary or the Custodian of any obligations relating to any Pre-Release
under Section 2.9 of the Deposit Agreement or any other agreement between the
Depositary and the Issuer relating to Pre-Release. However, the indemnities
contained in such preceding sentence shall apply to any liability or expense
which may arise out of any misstatement or alleged misstatement or omission or
alleged omission in any registration statement, proxy statement, prospectus (or
placement memorandum) or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability
or expense arises out of (i) information relating to the Depositary or the
Custodian, as applicable, furnished in writing to the Issuer by the Depositary
or the Custodian, as applicable, expressly for use in any of the foregoing
documents, or, (ii) material omissions from such information furnished by the
Depositary or the Custodian. No disclaimer of liability under the Securities Act
of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
-----------------------------------------
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 Issuer,
such resignation to take effect upon the appointment of a successor depositary
by the Issuer and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Issuer by written
notice of such removal, effective upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement.
Whenever the Depositary in its discretion determines that it is in the best
interest of the Owners of Receipts to do so, it may, with the prior approval of
the Issuer, appoint a substitute or additional custodian or custodians which
shall be an accredited financial intermediary acting through a specified office
located in The Republic of France, approved by the Issuer, such approval not to
be unreasonably withheld.
20. AMENDMENT.
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The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Issuer and
the Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of ninety days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement or Receipts as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities corresponding thereto except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
--------------------------------
The Depositary shall at any time at the direction of the Issuer terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Issuer a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt, will upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, will be entitled to delivery, to him or upon his order, of the amount
of Deposited Securities corresponding to the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for claims of Owners as Creditors of the Depositary for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Issuer shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary under Sections 5.8 and 5.9 of the Deposit Agreement which shall
survive the termination of the Deposit Agreement.
22. INFORMATION REQUESTS.
--------------------
The Issuer may from time to time request Owners of Receipts to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously interested in
such Receipts as to the nature of such interest and various other matters. The
Depositary agrees to use reasonable efforts to comply with written instructions
received from the Issuer requesting that the Depositary forward any such
requests to the Owner and to forward to the Issuer any responses to such
requests received by the Depositary.
23. DISCLOSURE OF INTEREST.
-----------------------
Notwithstanding any other provisions of the Deposit Agreement, each Owner
and holder of Receipts agrees to comply with the Issuer's statuts, as they may
-------
be amended from time to time, and the laws of The Republic of France, if
applicable, with respect to the disclosure requirements regarding ownership of
Shares, all as if such Receipts were, for this purpose, the Shares corresponding
thereto.
In order to facilitate compliance with the notification requirements, an
Owner or holder of Receipts may deliver any notification to the Depositary with
respect to Shares corresponding to American Depositary Shares, and the
Depositary shall, as soon as practicable, forward such notification to the
Issuer and, if applicable the Societe des Bourses Francaises, or any other
------------------------------
authorities in The Republic of France.
On the date of the Deposit Agreement, the Issuer's statuts provide that any
individual or entity, acting alone or in concert with others, that acquires 5%
or more of the outstanding voting rights of the Issuer, or that increases or
decreases its voting rights by 5%, must notify the Issuer by registered letter
within ten calendar days of the date that such acquisition is recorded in the
share register of the Issuer. In the event of failure to comply with such
notification requirement, upon the request of one or more shareholders
holding 5% or more of the Issuer's share capital, the Shares (including Shares
corresponding to American Depositary Shares) in excess of the relevant threshold
will be deprived of voting rights for all shareholder meetings until the end of
a two-year period following the date on which the Owner or holder thereof has
complied with such notification requirements.
24. COMPLIANCE WITH U.S. SECURITIES LAWS.
------------------------------------
Notwithstanding any terms of the Deposit Agreement to the contrary, the
Issuer and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, Section I A(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
