AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 dated
as
of October , 2008 (the "Amendment") to the Amended and Restated Deposit
Agreement dated as of December 31, 1998, as amended as of April 21, 2008 (as
so
amended and restated and amended, the "Deposit Agreement"), among Dassault
Systèmes S.A. and its successors (the "Company"), incorporated under the laws of
The Republic of France, JPMorgan Chase Bank, N.A., as depositary (the
"Depositary"), and all Holders from time to time of American Depositary Receipts
("ADRs") issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has filed a Form 25 and a Form 15F with the U.S. Securities and
Exchange Commission (the "Commission") in order to seek to terminate the listing
of its ADRs on the NASDAQ and to terminate the registration of its securities
under the United States Securities and Exchange Act of 1934, as amended
(“Exchange Act”), and its obligation to file with the Commission, or submit to
the Commission, reports under Sections 13(a) and 15(d) of the Exchange
Act.
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend certain terms
of the Deposit Agreement and ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. The
first
two sentences of Section 14 of the Deposit Agreement are deleted.
SECTION
2.03. Paragraph
(7) of the form of ADR is amended to include the following immediately after
the
first sentence thereof:
In
addition, the following additional charges shall be incurred by the Holders
(i)
a fee of U.S.$0.02 or less per ADS for any cash distribution made pursuant
to
the Deposit Agreement, and (ii) an aggregate fee of U.S.$0.02 or less per ADS
per calendar year (or portion thereof) for services performed by the Depositary
in administering the ADRs (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Holders as of the record date
or record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions).
SECTION
2.04. The
penultimate and ultimate sentences of paragraph (8) of the form of
ADR
are amended to read as follows:
Upon
effectiveness of the termination of the Company's reporting obligations under
the Securities Exchange Act of 1934, the Company will
publish
information in English required to maintain the exemption from registration
under Rule
12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site
(xxx.0xx.xxx)
or
through an electronic information delivery system generally available to the
public in its primary trading market.
SECTION
2.05. The
form
of ADR, reflecting the amendments set forth herein, is amended and restated
to
read as set forth as Exhibit A hereto.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties of the Company.
The
Company represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 as executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in The Republic of France,
neither of such agreements need to be filed or recorded with any court or other
authority in The Republic of France, nor does any stamp or similar tax need
to
be paid in The Republic of France on or in respect of such agreements;
and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
SECTION
3.02. Representations
and Warranties of the Depositary.
The
Depositary represents and warrants to, and agrees with, the Company that this
Amendment, when executed and delivered by the Depositary, and the Deposit
Agreement and the Form F-6 as executed and delivered by the Depositary in
connection herewith, will be and have been, respectively, duly and validly
authorized, executed and delivered by the Depositary, and constitute the legal,
valid and binding obligations of the Depositary, enforceable against the
Depositary in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles.
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ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the date hereof, provided the amendments set forth in Section 2.03 hereof shall
not be effective until thirty days after notice hereof is first provided to
Holders.
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION
4.03. Governing
Law; Jurisdiction. The
Deposit Agreement, the Amendment and the ADRs as amended hereby shall be
governed by and construed in accordance with the laws of the State of New York.
Any dispute, legal suit, action or proceeding arising out of or based upon
the
Deposit Agreement (as amended by the Amendment) or the transactions contemplated
thereby shall be submitted to the exclusive jurisdiction of the Courts of New
York, New York.
SECTION
4.04. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
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IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and
all
Holders shall become parties hereto by holding ADSs as of the Effective
Date.
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DASSAULT
SYSTÈMES S.A.
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Name:
Xxxxxxxx de Tersant
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| Title: Senior EVP and CFO | ||
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JPMORGAN
CHASE BANK, N.A.
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Name:
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5
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
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No.
of ADSs:
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Number
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Each
ADS represents
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One
Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
Common
Stock
of
DASSAULT
SYSTÈMES S.A.
(A
Société Anonyme organized under the
laws
of
France)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that
_________
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one
share of common stock (including the rights to receive Shares described in
paragraph (1) and any successor securities resulting from a change in the
nominal value, split-up or consolidation or any other reclassification, exchange
or conversion of such ordinary shares, "Shares") and any and all other Shares,
securities, cash or property at such time held for the account of the Depositary
in respect or in lieu of such deposited Share (together with such Share, the
"Deposited Securities"), of Dassault Systèmes S.A. a société anonyme organized
under the laws of France (the "Company"), deposited at the Paris office of
BNP
Paribas, as Custodian (subject to paragraph (15), the "Custodian"), under the
Amended and Restated Deposit Agreement dated as of December 31, 1998 to Deposit
Agreement dated as of June 27, 1996 (as so amended and as further amended from
time to time, the "Deposit Agreement") among the Company, the Depositary and
all
Holders from time to time of American Depositary Receipts issued thereunder
("ADRs"), each of whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York.
6
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to the
Deposit Agreement and paragraphs (4) and (7), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) unless requested in writing by the Company to cease doing so at least two
business days in advance of the proposed deposit, other rights to receive Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADSs") only if (i) Pre-released ADSs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADSs agrees in
writing with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary
in
its capacity as such, (c) holds such Shares for the account of the Depositary,
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor, and (e) will not take any action with respect
to
the Pre-released ADS and Shares that is inconsistent with the transfer of the
Depositary's beneficial ownership thereof and (iii) all Pre-released ADSs
evidence not more than 20% of all ADSs (excluding Pre-released ADSs), except
to
the extent that the Depositary (in its sole discretion) determines that unusual
market conditions require the issuance of Pre-released ADSs in addition to
20%
of all such ADSs. The Depositary may retain for its own account any earnings
on
collateral for Pre-released ADRs and its charges for issuance thereof. At the
request, risk and expense of the person depositing Shares, the Depositary may
accept deposits for forwarding to the Custodian and may deliver ADRs at a place
other than the Transfer Office. Every person depositing Shares under the Deposit
Agreement represents and warrants that such Shares are validly issued and
outstanding, fully paid and nonassessable, the pre-emptive rights with respect
to such Shares were validly waived or exercised at the time of their initial
issuance and sale by the Company, that the person making such deposit is duly
authorized so to do and that such Shares are not "restricted securities" as
such
term is defined in Rule 144 under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under the Deposit
Agreement any Shares required to be registered under the Securities Act of
1933
and not so registered; the Depositary may refuse to accept for such deposit
any
Shares identified by the Company in order to facilitate the Company's compliance
with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to the Deposit Agreement and paragraphs (4), (5) and (7), upon surrender of
this
ADR in form satisfactory to the Depositary at the Transfer Office, the Holder
hereof is entitled to the transfer to an account in the name designated in
the
Withdrawal Order maintained by the Company in the case of Shares in registered
form, or transfer to an account of an accredited financial institution on behalf
of such Holder in the case of Shares in bearer form, of such whole number of
Shares or Ex-Dividend Shares, as the case may be, are represented by such ADSs,
and the Depositary shall cause such transfer to be effected without unreasonable
delay. At the request, risk and expense of the Holder hereof, the Depositary
may
deliver such Deposited Securities at such other place as may have been requested
by the Holder. Notwithstanding any other provision of the Deposit Agreement
or
this ADR, the withdrawal of Deposited Securities may be restricted only for
the
reasons set forth in General Instruction I.A.(1) of Form F-6 under the
Securities Act of 1933.
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(3)
Transfers
of ADRs.
The
Depositary or its agent will maintain, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"): (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, which at all reasonable times will be open
for
inspection by Holders and the Company for the purpose of communicating with
Holders in the interest of the business of the Company or a matter relating
to
the Deposit Agreement and (b) facilities for the delivery and receipt of ADRs.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed or accompanied by proper instruments
of transfer, is transferable by delivery with the same effect as in the case
of
negotiable instruments under the laws of the State of New York; provided
that the
Depositary and the Company, notwithstanding any notice to the contrary, may
treat the person or persons in whose name or names this ADR is registered on
the
ADR Register (the "Holder") as the absolute owner hereof for all purposes.
Subject to paragraphs (4) and (5), this ADR is transferable on the ADR Register
and may be split into other ADRs or combined with other ADRs into one ADR,
evidencing the same number of ADSs evidenced by this ADR, by the Holder hereof
or by such Holder's duly authorized attorney upon surrender of this ADR at
the
Transfer Office properly endorsed or accompanied by proper instruments of
transfer and duly stamped as may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it (after making reasonable efforts to consult with the
Company if practicable in the case of any closure outside of the ordinary course
of business) or requested by the Company.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7); (b) the
production of proof satisfactory to it of (i) the identity and genuineness
of
any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and the terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. The issuance of ADRs, the acceptance of deposits of Shares,
the registration, registration of transfer, split-up or combination of ADRs
or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
8
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required under applicable law to be withheld and owing to
such
authority or agency by the Company; and the Depositary and the Custodian will
remit to the appropriate governmental authority or agency all amounts (if any)
required under applicable law to be withheld and owing to such authority or
agency by the Depositary or the Custodian. The Depositary will forward to the
Company or its agent such information as the Company may reasonably request
to
enable the Company or its agent to file necessary reports with governmental
agencies. The Depositary will use reasonable efforts to assist eligible U.S.
resident Holders in following the procedures established by the French Treasury
for such Holders to recover the excess 10% French withholding tax initially
withheld and deducted in respect of dividends distributed to them by the
Company. In addition, the Depositary will use reasonable efforts to follow
any
procedures that may be established by the French Treasury for eligible U.S.
resident Holders to be subject to a reduced withholding tax rate of 15%, if
available, at the time dividends are paid. In connection therewith, the
Depositary shall take reasonable steps to provide eligible U.S. resident
Holders, upon request and payment of any applicable fees and expenses of the
Depositary, with such forms as may be prescribed by the French Treasury and
to
take such other reasonable steps as may be required to file such forms with
the
appropriate French tax authorities.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary
in
the Depositary's compliance with any Company instructions in respect thereof,
and the Depositary will use reasonable efforts to comply with such Company
instructions.
French
law provides that any individual or entity (including a holder of ADSs), acting
alone or in concert with others, that acquires, directly or indirectly, more
than one-twentieth, one-tenth, three-twentieths, one-fifth, one-fourth,
one-third, one-half, two-thirds, eighteen-twentieths or nineteen-twentieths
of
the share capital or the voting rights of the Company, or whose holdings fall
below any such level, must notify the Company and the Autorité
des marchés financiers within
five trading days of exceeding or falling below such level, of the number of
equity securities it holds and the voting rights attached thereto. In the case
of a violation of the notification requirements provided for under French law,
the undeclared share capital interest in excess of the required notification
level will be deprived of voting rights until the end of a two-year period
following the date on which the owner thereof has complied with such
notification requirement. In addition, any shareholder who fails to comply
with
the above requirements may have all or part of its voting rights suspended
for
up to five years by the commercial court at the request of the Company's
chairman, any shareholder or the Autorité
des marchés financiers.
9
In
addition, the Company's statuts
provide
that every shareholder (including a holder of ADSs) who, directly or indirectly,
acting alone or in concert with others, acquires ownership of control of equity
securities representing 2.5%, or any multiple of 2.5% up to 50%, of the
Company's share capital or voting rights, or whose holdings fall below any
such
limit, shall be required to notify the Company of such fact within 15 calendar
days of such acquisition or disposition. Failure to comply with such
notification provisions will result in the suspension of the voting rights
attached to the equity securities exceeding such 2.5% threshold held by such
shareholder if requested by one or more shareholders holding equity securities
representing at least 2.5% of the Company's share capital or voting
rights.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADRs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered.
In
addition, the following additional charges shall be incurred by the Holders
(i)
a fee of U.S.$0.02 or less per ADS for any cash distribution made pursuant
to
the Deposit Agreement, and (ii) an aggregate fee of U.S.$0.02 or less per ADS
per calendar year (or portion thereof) for services performed by the Depositary
in administering the ADRs (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against Holders as of the record date
or record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions).
The
Company agrees to pay the fees and reasonable expenses
of the Depositary and any agent of the Depositary (except the Custodian) only
in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Company shall not pay or be liable for (i)
stock transfer or other taxes and other governmental charges (which are payable
by Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable
by
such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement) and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (including, without
limitation, expenses incurred on behalf of Holders in connection with compliance
with any foreign exchange control restrictions)(which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
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(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will promptly mail copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. Upon effectiveness of the termination of the Company's reporting
obligations under the Securities Exchange Act of 1934, the Company
will
publish
information in English required to maintain the exemption from registration
under
Rule
12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site
(xxx.0xx.xxx)
or
through an electronic information delivery system generally available to the
public in its primary trading market.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By:
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Authorized Officer
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The
Transfer Office is currently located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM
OF
REVERSE OF RECEIPT]
(10)
Distributions
on Deposited Securities.
(a)
Cash
Distributions.
Subject
to paragraphs (4), (5) and (7) hereof, whenever the Depositary or the Custodian
shall receive any cash dividend or other cash distribution on any Deposited
Securities, the Depositary shall, or shall cause its agent, as promptly as
practicable after receipt of such dividend or distribution (unless otherwise
prohibited or prevented by law), subject to the provisions of Section 5(b)
of
the Deposit Agreement, convert such dividend or distribution into U.S. dollars,
and shall, as promptly as practicable, distribute the amount thus received
(net
of the fees and expenses of the Depositary as provided for in paragraph (7)
hereof) to the Holders entitled thereto, in proportion to the number of ADSs
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company or an agent of the Company or the
Depositary or an agent of the Depositary shall be required to withhold and
does
withhold from such cash dividend or such other cash distribution an amount
on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADRs evidencing ADSs representing such Deposited Securities shall
be
reduced accordingly. The Depositary shall distribute only such amounts as can
be
distributed without distributing to any Holder a fraction of one cent and any
balance that is not so distributed shall be held by the Depositary (without
liability for interest thereon) and dealt with in accordance with the
Depositary's then current procedures. Holders of ADSs evidenced by Ex-Dividend
ADRs shall not be entitled to receive any cash distributions on account of
dividends until such time as the Ex-Dividend Shares become entitled to full
dividends.
(b)
Share
Distributions.
Subject
to paragraphs (4), (5) and (7) hereof, if the Company declares a dividend in,
or
free distribution of, additional Shares (a "Share Distribution"), upon receipt
by or on behalf of the Depositary of additional Shares, the Depositary may,
and,
if the Company so requests, shall distribute to Holders, in proportion to their
holdings, additional ADRs for an aggregate number of ADSs representing the
number of Shares so received as such dividend or distribution, in each case
subject to the terms and conditions of the Deposit Agreement, including the
withholding of taxes or any other governmental charges and the payment of fees
required hereunder. If such additional ADRs are not so issued, each ADS shall
thereafter also represent the additional securities distributed in respect
of
the Share represented by such ADS prior to such dividend or free distribution.
In lieu of delivering ADRs for fractional ADSs in the event of any such
distribution, the Depositary shall sell the amount of Shares represented by
the
aggregate of such fractions and will distribute the net proceeds, all in the
manner and subject to the conditions described in Section 5(b) of the Deposit
Agreement. The Depositary may withhold any such distribution of ADSs or ADRs
if
it has not received satisfactory assurances from the Company that such
distribution does not require registration under the Securities Act or is exempt
from registration under the provisions of such Act.
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(c)
Rights.
Subject
to paragraphs (4), (5) and (7) hereof, if the Company offers, or causes to
be
offered, to the owners of Shares any rights to subscribe for additional Shares
or any rights of any other nature, the Depositary shall, after consultation
with
the Company, have discretion as to the procedure to be followed in making such
rights available to Holders or in disposing of such rights on behalf of any
Holders and making the net proceeds available to such Holders, provided that
the
Depositary shall allow the rights to lapse if, by the terms of such rights
offering or for any other reason, it would be unlawful for the Depositary either
to make such rights available to any Holder or to dispose of such rights and
make the proceeds available to such Holders. If at the time of the rights
offering the Depositary determines it to be lawful and feasible to make such
rights available to all or certain Holders, the Depositary may, and at the
request of the Company shall, make such rights available to Holders through
the
distribution in proportion to the number of ADSs held by such Holders, of
warrants or other instruments in such form as it deems appropriate. If the
Depositary determines that it is not lawful or feasible to make such rights
available to all or certain Holders, it may, and at the request of the Company
shall, sell the rights, warrants or other instruments in proportion to the
number of ADSs held by the Holders to whom it has determined it may not lawfully
or feasiblely make such rights available, and allocate the net proceeds of
such
sales (net of the fees of the Depositary as provided for in paragraph (7)
hereof, any expenses in connection with such sale, and all taxes and
governmental charges payable in connection with such rights and subject to
the
terms and conditions of the Deposit Agreement and this ADR), for the account
of
such Holders otherwise entitled to such rights, warrants or other instruments
as
in the case of a distribution received in cash, upon an averaged or other
practical basis without regard to any distinctions among such Holders because
of
exchange restrictions or the date of delivery of any ADR or otherwise. Any
such
net proceeds shall be distributed in accordance with paragraph (10)(a) hereof.
The Depositary will not offer rights to Holders unless the offering of such
rights to the Holders and the sale of both the rights and the securities to
which such rights relate either are exempt from registration under the
Securities Act with respect to a distribution to all Holders or are registered
under the provisions of the Securities Act of 1933. If a Holder requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under the Securities Act of 1933, the Depositary
shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which it may rely that such
distribution to such Holder is exempt from such registration. The Depositary
shall not be responsible for any failure to determine that it may be lawful
or
feasible to make such rights available to Holders in general or any Holder
in
particular. Notwithstanding anything to the contrary, the Company shall have
no
obligation to prepare and file a registration statement for any purpose.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Holders, then upon instruction from such a Holder pursuant to the terms
of the warrants or other instruments to the Depositary from such Holder to
exercise such rights, and upon payment by such Holder to the Depositary for
the
account of such Holder of an amount established by the Depositary to cover
the
purchase price of the Shares to be received upon the exercise of the rights,
and
upon payment of any fees of the Depositary and any other charges and expenses
provided for in such warrants or other instruments, the Depositary shall, on
behalf of such Holder, exercise the rights and purchase the Shares, and the
Company shall cause the Shares so purchased to be delivered to the Depositary
on
behalf of such Holder. As agent for such Holder, unless otherwise agreed by
the
Company and the Depositary, subject to paragraph (4) hereof, the Depositary
will
cause the Shares so purchased to be deposited pursuant to terms of the Deposit
Agreement and shall, pursuant to Section 4 of the Deposit Agreement, issue
ADRs
to the Holder in the manner provided for therein.
13
(d)
Other
Distributions.
Subject
to paragraphs (4), (5) and (7) hereof, whenever the Depositary shall receive
any
distribution other than cash, Shares or rights in respect of the Shares ("Other
Distributions"), the Depositary will, as promptly as practicable, cause the
securities or property received by it to be distributed to the Holders entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary as provided for in paragraph (7) hereof or any taxes or other
governmental charges, in proportion to their holdings, respectively, in any
manner that the Depositary may reasonably 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
Holders entitled thereto, or if for any other reason (including any requirement
that the Company or the Depositary or any agent of 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 Holders) the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may reasonably 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 and expenses of the Depositary as provided for in paragraph (7) hereof
and
any expenses in connection with such sale) shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash.
(11)
Record
Dates.
The
Depositary may, after consultation with the Company, if practicable, fix a
record date (which shall be as near as practicable to any corresponding record
date set by the Company) for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only Holders as of such record
date shall be so entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting, to
be
sent by the Company at least thirty-five (35) days prior to the date of the
proposed meeting, or solicitation of consents or proxies of holders of Shares
or
other Deposited Securities, the Depositary shall distribute to Holders a notice
stating (a) such information as is contained in such notice and any solicitation
materials or a summary thereof in a form prepared by the Company,, (b) that
each
Holder on the record date set by the Depositary therefor will, subject to any
applicable provisions of French law, be entitled to instruct the Depositary
as
to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c)
the
manner in which such instructions may be given, including instructions to give
a
discretionary proxy (such as a “procuration
sans indication de mandataire”
as
provided for in Article L.225-106 of the French Commercial Code) to
a
person designated by the Company. Upon receipt of instructions of a Holder
on
such record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities, any applicable provisions of French law and the statuts
of the
Company to vote or cause to be voted the Deposited Securities represented by
the
ADSs evidenced by such Holder's ADRs in accordance with such instructions.
The
Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
14
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable such Holder to return
any
voting instructions to the Depositary in a timely manner.
According
to French company law, voting rights may not be exercised in respect of
fractional shares.
Under
French company law, shareholders at ordinary and extraordinary shareholders'
meetings may, subject to certain conditions, modify the resolutions presented
by
the Board of Directors to the shareholders for their approval. In such case,
Holders who have given a discretionary proxy (“procuration
sans indication de mandataire”
as
provided for in Article L.225-106 of the French Commercial Code)
to vote
on such resolutions shall be deemed to have given instructions to vote against
the revised resolutions; provided, however, that in the event such revised
resolutions have been approved by the Board of Directors of the Company, Holders
who have provided a discretionary proxy shall be deemed to have given
instructions to vote in favor of such revised resolutions approved by the Board
of Directors.
The
Depositary and the Company may revise the voting procedures set forth in this
paragraph (12) as they deem necessary or advisable in order to comply with
applicable law, the statuts of the Company or market practice. Notice of such
revised procedures shall be provided in any distribution to Holders provided
for
above and shall not be considered an amendment to the Deposit Agreement or
the
ADR.
Subject
to paragraph (14), the Depositary and the Company and their respective
directors, employees, agents and controlling persons (as defined in the
Securities Act of 1933) assume no obligation nor shall they be subject to any
liability under the Deposit Agreement or this ADR to any Holder or any other
person with respect to whether a Holder or such other person is entitled to
provide voting instructions or otherwise in respect of voting.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4), (5) and (10), the Depositary may, in its discretion, and
shall, if the Company shall so request, amend this ADR or distribute additional
or amended ADRs (with or without calling this ADR for exchange) or cash,
securities or property on the record date set by the Depositary therefor to
reflect any change in nominal value, split-up, consolidation, cancellation
or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of
the
Company, and to the extent the Depositary does not so amend this ADR or make
a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
15
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, any provision (present or future) of the
statuts of the Company, the provisions of or governing any Deposited Securities,
act of God, war or other circumstance beyond its control shall prevent, delay
or
subject to any civil or criminal penalty any act which the Deposit Agreement
or
this ADR provides shall be done or performed by it, or (ii) by reason of any
exercise, delay or failure to exercise any discretion given it in the Deposit
Agreement or this ADR; (b) assume no liability except to perform its obligations
to the extent they are specifically set forth in this ADR and the Deposit
Agreement without gross negligence or bad faith; (c) be under no obligation
to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or this ADR; or (d) not be liable for any action
or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other
person believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for
the
manner in which any such vote is cast (provided that any such action or
non-action is in good-faith) or for the effect of any such vote. The Depositary
and its agents may own and deal in any class of securities of the Company and
its affiliates and in ADRs. The Company has agreed to indemnify the Depositary
and its agents under certain circumstances and the Depositary has agreed to
indemnify the Company against losses incurred by the Company to the extent
such
losses are due to the negligence or bad faith of the Depositary. No disclaimer
of liability under the Securities Act of 1933 is intended by any provision
hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary, after consultation with the Company, may appoint
substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians, as the context requires, then acting as
such.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary without the consent of the Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall not become effective until 30 days after notice of such amendment
shall have been given to the Holders. Every Holder of an ADR at the time any
amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to
be
bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Holder of any ADR to surrender such ADR and
receive the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. The parties hereto agree that
any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act of 1933 or (b) the ADSs or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not
to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR
to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
16
(17)
Termination.
The
Depositary may, and shall at the written direction of the Company, terminate
the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to advise Holders of such termination, receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. At any time after the expiration of one year from the date so fixed
for termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account
the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the
pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and for its obligations to the Company under Section 16 of the Deposit
Agreement. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents under Section 16 of the Deposit
Agreement and paragraph (7) of the form of ADR.
17
