AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of September 24 , 2007 (the "Amendment") to the Deposit Agreement dated as
of
July 19, 2001 (the "Deposit Agreement"), among LAFARGE (the "Company"),
incorporated under the laws of The Republic of France, JPMorgan Chase Bank,
N.A.
(fka Xxxxxx Guaranty Trust Company of New York), as depositary (the
"Depositary"), and all Holders from time to time of American Depositary Receipts
("ADRs") issued thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein;
WHEREAS,
the Company has filed a Form 15F with the U.S. Securities and Exchange
Commission (the "Commission") in order to seek 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 the 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.
1
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. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty
Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. The
addresses of the Depositary set forth in Section 17(a) of the
Deposit
Agreement is amended to read as follows:
(a)
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JPMorgan
Chase Bank, N.A.
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Four
Xxx Xxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
ADR Administration
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Fax:
(000) 000-0000
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SECTION
2.04. References
in the form of ADR to "Xxxxxx Guaranty Trust Company of New York, a New York
Corporation" are replaced with "JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States of America".
SECTION
2.05. Paragraph
(6) of the form of ADR is amended to read as follows:
To
the
extent that the provisions of or governing any Deposited Securities (including
the Company's status or applicable law) 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. As of the date
of
the Deposit Agreement, as most recently amended, such disclosure requirements
are as follows:
2
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 or control of
equity
securities representing 1%, or any multiple of 1% 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 1% threshold held by such shareholder until the end of a two-year
period following the date on which such shareholder has complied with such
notification requirements if requested by one or more shareholders holding
equity securities representing at least 1% of the Company's share capital
or
voting rights.
French
law provides that any individual or entity, 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 a listed Company, or whose holdings fall below any such
level, must notify the Company and the Autorité
des marchés financiers,
the
administrative agency responsible for overseeing the French securities markets,
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 requirements. 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.
In
the
event that a Holder fails to comply with the requirements set forth in the
preceding paragraph, such Holder may be required to cancel some or all of
the
ADSs registered in such Holder’s name and to take delivery of the
underlying Shares whereupon such Holder will not be permitted, in accordance
with, and subject to limitations provided under French law, to exercise voting
rights with respect to any Shares or shares assimilated to Shares (to any
extent
provided for in the Company’s statuts)
exceeding the above-referenced thresholds as to which any required disclosure
(as set forth in the preceding paragraph) has not been made until the end
of a
two-year period following the date on which such Holder has complied with
such
disclosure requirement. In addition, a French court may, under certain
circumstances, suspend all or part of the voting rights of such Holder for
a
period not to exceed five years.
3
The
provisions of this paragraph (6) relating to Shares or voting rights held
by a
person or an entity also apply to shares or voting rights assimilated to
such
Shares or such voting rights as set forth under French law, i.e.,
(i)
Shares
or voting rights held by another person or entity on behalf of such person
or
entity, (ii)
Shares
or voting rights held by any company which is directly or indirectly controlled
by such person or entity (as defined under Article L.233-3
of
the French Commercial Code), (iii)
Shares
or voting rights held by a third party acting in concert with such person
or
entity, (iv)
Shares
or voting rights that such person or entity, or any person or entity referred
to
in (i),
(ii)
or
(iii)
above,
is entitled to acquire at its sole option by virtue of an agreement, (v)
Shares
in which such person or entity holds a life interest (usufruit),
(vi)
Shares or voting rights held by a third party with whom such person or entity
has entered into a temporary transfer agreement relating to such Shares or
voting rights, (vii) Shares deposited with such person or entity; provided
that
such person or entity may freely exercise the voting rights attached thereto,
without needing any specific instructions from the concerned shareholders
and
(viii) voting rights that such person or entity may freely exercise by virtue
of
a proxy without needing any specific instructions from the concerned
shareholders.
SECTION
2.06. Paragraph
(7) of the form of ADR is amended by inserting the following immediately
after
the second sentence thereof:
In
connection with any cash dividend or other cash distribution under the Deposit
Agreement, the Depositary may charge a fee of US$0.02 or less per ADS, such
amount to be deducted from the net amount distributed to Holders entitled
thereto.
SECTION
2.07. 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 requirements under
the Exchange Act, the Company shall publish on its web site (xxx.xxxxxxx.xxx)
on
an ongoing basis, or otherwise furnish the United States Securities and Exchange
Commission (the "Commission") with, certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Exchange
Act. To the extent furnished to the Commission, such reports and documents
may
be inspected and copied at the public reference facilities maintained by
the
Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
4
SECTION
2.08. Paragraph
(12) of the form of ADR is amended to read as follows:
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(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.
To
the
extent voting instruction are not so received by the Depositary from any
Holder,
the Depositary shall deem such Holder to have so instructed the Depositary
to
give a discretionary proxy to a person designated by the Company and the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary proxy
to
a person designated by the Company to vote the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions
are so
given, provided that no such instruction shall be deemed given and no
discretionary proxy shall be given (i) with respect to any matter as to which
the Company informs the Depositary (and the Company agrees to provide such
information promptly in writing) or the Depositary reasonably believes (in
the
case of (y) or (z) below) that (x) the Company does not wish such proxy given,
(y) substantial opposition exists or (z) materially affects the rights of
holders of Shares and (ii) unless, with respect to such meeting, the Depositary
has been provided with an opinion of French counsel to the Company that is
in
form and substance satisfactory to the Depositary.
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.
5
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.
SECTION
2.09. The
form
of ADR, reflecting the amendments set forth herein and
some
clarifying amendments thereto is amended and restated to read as set forth
as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
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
6
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
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 2.05 and 2.07
hereof shall not become effective until thirty days from the date notice
thereof
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.
7
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
of
the respective amendments included herein.
By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
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8
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
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No.
of ADSs:
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Number
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Four
ADSs represents
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One
Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES
OF
COMMON STOCK
of
(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-fourth of 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, together with
any
other securities, cash or property from time to time held by the Depositary
in
respect or in lieu of deposited Shares, the "Deposited Securities"), of Lafarge,
a société anonyme organized under the laws of France (the "Company"), deposited
under the Deposit Agreement dated as of July 19, 2001 (as amended from time
to
time, the "Deposit Agreement") among the Company, the Depositary and all
Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State
of
New York.
1
(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 ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by
the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees
in
writing with the Depositary that such recipient (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 ADRs
evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate and in the best interest of the ADR program.
The
Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and its charges for issuance thereof. At the request, risk
and
expense of the person depositing Shares, the Depositary may accept deposits
for
forwarding to the Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement represents
and warrants that such Shares are validly issued and outstanding, fully paid
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 (A) are not "restricted securities" as such term is defined
in
Rule 144 under the Securities Act of 1933 unless at the time of deposit they
may
be freely transferred in accordance with Rule 144(k) and may otherwise be
offered and sold freely in the United States or (B) have been registered
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 paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR,
the
Holder hereof is entitled to 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, at
the
time represented by the ADSs evidenced by this ADR 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 (as such instructions may
be
amended from time to time) under the Securities Act of 1933.
2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration
ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company
or a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary 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 (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be required
by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it (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. At the request of a Holder, the
Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject
to the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity 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.
3
(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. If the Depositary determines that
any
distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion
of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any
such
property after deduction of such taxes to the Holders entitled thereto. 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 as well as to recover any avoir
fiscal
or tax
credit payment to be made in accordance with procedures established by the
French Treasury. 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 with such forms as may be prescribed by the French Treasury
and to take such other reasonable steps upon request and payment of any
applicable fees and expenses of the Depositary 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 (including
the Company's status or applicable law) 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. As of the date
of
the Deposit Agreement, such disclosure requirements are as
follows:
4
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 or control of
equity
securities representing 1%, or any multiple of 1% 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 1% threshold held by such shareholder until the end of a two-year
period following the date on which such shareholder has complied with such
notification requirements if requested by one or more shareholders holding
equity securities representing at least 1% of the Company's share capital
or
voting rights.
French
law provides that any individual or entity, 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 a listed Company, or whose holdings fall below any such
level, must notify the Company and the Autorité
des marchés financiers,
the
administrative agency responsible for overseeing the French securities markets,
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 requirements. 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.
In
the
event that a Holder fails to comply with the requirements set forth in the
preceding paragraph, such Holder may be required to cancel some or all of
the
ADSs registered in such Holder’s name and to take delivery of the
underlying Shares whereupon such Holder will not be permitted, in accordance
with, and subject to limitations provided under French law, to exercise voting
rights with respect to any Shares or shares assimilated to Shares (to any
extent
provided for in the Company’s statuts)
exceeding the above-referenced thresholds as to which any required disclosure
(as set forth in the preceding paragraph) has not been made until the end
of a
two-year period following the date on which such Holder has complied with
such
disclosure requirement. In addition, a French court may, under certain
circumstances, suspend all or part of the voting rights of such Holder for
a
period not to exceed five years.
The
provisions of this paragraph (6) relating to Shares or voting rights held
by a
person or an entity also apply to shares or voting rights assimilated to
such
Shares or such voting rights as set forth under French law, i.e.,
(i)
Shares
or voting rights held by another person or entity on behalf of such person
or
entity, (ii)
Shares
or voting rights held by any company which is directly or indirectly controlled
by such person or entity (as defined under Article L.233-3
of
the French Commercial Code), (iii)
Shares
or voting rights held by a third party acting in concert with such person
or
entity, (iv)
Shares
or voting rights that such person or entity, or any person or entity referred
to
in (i),
(ii)
or
(iii)
above,
is entitled to acquire at its sole option by virtue of an agreement, (v)
Shares
in which such person or entity holds a life interest (usufruit),
(vi)
Shares or voting rights held by a third party with whom such person or entity
has entered into a temporary transfer agreement relating to such Shares or
voting rights, (vii) Shares deposited with such person or entity; provided
that
such person or entity may freely exercise the voting rights attached thereto,
without needing any specific instructions from the concerned shareholders
and
(viii) voting rights that such person or entity may freely exercise by virtue
of
a proxy without needing any specific instructions from the concerned
shareholders.
5
(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 (including, without
limitation, on the termination of the Deposit Agreement), U.S. $5.00 for
each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered.
The Depositary may sell (by public or private sale) sufficient securities
and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. In connection with
any
cash dividend or other cash distribution under the Deposit Agreement, the
Depositary may charge a fee of US$0.02 or less per ADS, such amount to be
deducted from the net amount distributed to Holders entitled thereto. The
Company will pay all other charges and expenses of the Depositary and any
agent
of the Depositary (except the Custodian) pursuant to agreements from time
to
time between the Company and the Depositary, except (i) stock transfer or
other
taxes and other governmental charges (which are payable by Holders or persons
depositing Shares), (ii) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration 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).
(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
requirements under the Exchange Act, the Company shall publish on its web
site
(xxx.xxxxxxx.xxx) on an ongoing basis, or otherwise furnish the United States
Securities and Exchange Commission (the "Commission") with, certain public
reports and documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Exchange Act. To the extent furnished to the Commission, such reports
and documents may be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
00000.
6
(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:
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
By
|
|
Authorized
Officer
|
On
the
date of the Deposit Agreement, as most recently amended, the Transfer Office
is
located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute as promptly as practicable by mail, to the extent distribution
by
mail is practicable, to each Holder entitled thereto on the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution
or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other reasonably practicable basis, subject to (i) appropriate adjustments
for
taxes withheld, (ii) such distribution being impermissible or impracticable
with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be
made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. Neither Holders nor
the
Depositary will be entitled to receive increased dividend rights (dividende
majoré) by virtue of their holdings of ADSs or otherwise unless the Depositary
has been advised in writing by the Company that Holders are eligible to benefit
from such rights as a matter of French law and the Company and the Depositary
shall have devised a mechanism for the allocation of such rights. (b)
Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary, after
consultation with the Company if practicable, representing rights to acquire
additional ADRs in respect of any rights to subscribe for additional Shares
or
rights of any nature available to the Depositary as a result of a distribution
on Deposited Securities ("Rights"), to the extent that the Company timely
furnishes to the Depositary evidence satisfactory to the Depositary that
the
Depositary may lawfully distribute the same (the Company has no obligation
to so
furnish such evidence), or (ii) to the extent the Company does not so furnish
such evidence and sales of Rights are practicable, any U.S. dollars available
to
the Depositary from the net proceeds of sales of Rights as in the case of
Cash,
or (iii) to the extent the Company does not so furnish such evidence and
such
sales cannot practicably be accomplished by reason of the nontransferability
of
the Rights, limited markets therefor, their short duration or otherwise,
nothing
(and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions
and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents (any fractional cents being withheld without liability for interest
and
handled in accordance with the Depositary's then current
practices).
8
To
the
extent that the Depositary determines in its discretion that any distribution
pursuant to this paragraph (10) is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to
such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
(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 such Holders shall be so
entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(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.
To
the
extent voting instruction are not so received by the Depositary from any
Holder,
the Depositary shall deem such Holder to have so instructed the Depositary
to
give a discretionary proxy to a person designated by the Company and the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary proxy
to
a person designated by the Company to vote the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions
are so
given, provided that no such instruction shall be deemed given and no
discretionary proxy shall be given (i) with respect to any matter as to which
the Company informs the Depositary (and the Company agrees to provide such
information promptly in writing) or the Depositary reasonably believes (in
the
case of (y) or (z) below) that (x) the Company does not wish such proxy given,
(y) substantial opposition exists or (z) materially affects the rights of
holders of Shares and (ii) unless, with respect to such meeting, the Depositary
has been provided with an opinion of French counsel to the Company that is
in
form and substance satisfactory to the Depositary.
9
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.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and 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.
10
(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) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute
or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit
or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements
of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares
for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any
of the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary 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. The Depositary may appoint
substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be
amended by the Company and the Depositary 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 become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by
the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form
and
(ii) do not in either such case impose or increase any fees or charges to
be
borne by Holders, shall be deemed not to prejudice any substantial rights
of
Holders. Notwithstanding the foregoing, if any governmental body 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.
11
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination
to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and
its
agents will perform no further acts under the Deposit Agreement and this
ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other
cash
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.