Exhibit 1
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ARKEMA
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of _________________, 2006
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS....................................................... 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES.................................. 1
SECTION 1.02 BENEFICIAL OWNER............................................ 2
SECTION 1.03 COMMISSION.................................................. 2
SECTION 1.04 COMPANY..................................................... 2
SECTION 1.05 CUSTODIAN................................................... 2
SECTION 1.06 DELIVER; SURRENDER.......................................... 2
SECTION 1.07 DEPOSIT AGREEMENT........................................... 3
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE.......................... 3
SECTION 1.09 DEPOSITED SECURITIES........................................ 3
SECTION 1.10 DOLLARS..................................................... 3
SECTION 1.11 FOREIGN REGISTRAR........................................... 3
SECTION 1.12 OWNER....................................................... 3
SECTION 1.13 RECEIPTS.................................................... 3
SECTION 1.14 REGISTRAR................................................... 3
SECTION 1.15 RESTRICTED SECURITIES....................................... 3
SECTION 1.16 SECURITIES ACT OF 1933...................................... 4
SECTION 1.17 SHARES...................................................... 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER
AND SURRENDER OF AMERICAN DEPOSITARY SHARES .................................. 4
SECTION 2.01 FORM OF RECEIPTS; REGISTRATION AND TRANSFERABILITY
OF AMERICAN DEPOSITARY SHARES.............................................. 4
SECTION 2.02 DEPOSIT OF SHARES........................................... 5
SECTION 2.03 DELIVERY OF AMERICAN DEPOSITARY SHARES ..................... 6
SECTION 2.04 REGISTRATION OF TRANSFER OF AMERICAN DEPOSITARY
SHARES; COMBINATION AND SPLIT-UP OF RECEIPTS; INTERCHANGE OF
CERTIFICATED AND UNCERTIFICATED AMERICAN DEPOSITARY SHARES................. 6
SECTION 2.05 SURRENDER OF AMERICAN DEPOSITARY SHARES AND
WITHDRAWAL OF DEPOSITED SECURITIES......................................... 7
SECTION 2.06 LIMITATIONS ON DELIVERY, TRANSFER AND SURRENDER OF
AMERICAN DEPOSITARY SHARES................................................. 8
SECTION 2.07 LOST RECEIPTS, ETC.......................................... 9
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS........ 9
SECTION 2.09 PRE-RELEASE OF AMERICAN DEPOSITARY SHARES................... 9
SECTION 2.10 DTC DIRECT REGISTRATION SYSTEM AND PROFILE
MODIFICATION SYSTEM....................................................... 10
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES................................................... 11
SECTION 3.01 REQUIREMENTS FOR HOLDINGS EXCEEDING CERTAIN PERCENTAGES.... 11
SECTION 3.02 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.......... 11
SECTION 3.03 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES........... 12
SECTION 3.04 WARRANTIES ON DEPOSIT OF SHARES............................ 12
SECTION 3.05 DISCLOSURE OF INTERESTS.................................... 12
ARTICLE 4. THE DEPOSITED SECURITIES......................................... 12
SECTION 4.01 CASH DISTRIBUTIONS......................................... 12
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS............ 13
SECTION 4.03 DISTRIBUTIONS IN SHARES.................................... 13
SECTION 4.04 RIGHTS..................................................... 14
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY............................. 15
SECTION 4.06 FIXING OF RECORD DATE...................................... 16
SECTION 4.07 VOTING OF DEPOSITED SECURITIES............................. 17
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES..................... 18
SECTION 4.09 REPORTS.................................................... 19
SECTION 4.10 LISTS OF OWNERS............................................ 19
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SECTION 4.11 WITHHOLDING................................................ 19
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY................... 20
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY
THE DEPOSITARY............................................................ 20
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY
OR THE COMPANY............................................................ 21
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE COMPANY........................................................... 21
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY.................. 22
SECTION 5.05 THE CUSTODIANS............................................. 23
SECTION 5.06 NOTICES AND REPORTS........................................ 23
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC............. 24
SECTION 5.08 INDEMNIFICATION............................................ 24
SECTION 5.09 CHARGES OF DEPOSITARY...................................... 25
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS.......................... 26
SECTION 5.11 EXCLUSIVITY................................................ 26
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS....................... 26
ARTICLE 6. AMENDMENT AND TERMINATION........................................ 26
SECTION 6.01 AMENDMENT.................................................. 26
SECTION 6.02 TERMINATION................................................ 27
ARTICLE 7. MISCELLANEOUS.................................................... 28
SECTION 7.01 COUNTERPARTS............................................... 28
SECTION 7.02 NO THIRD PARTY BENEFICIARIES............................... 28
SECTION 7.03 SEVERABILITY............................................... 28
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES;
BINDING EFFECT............................................................ 28
SECTION 7.05 NOTICES.................................................... 28
SECTION 7.06 GOVERNING LAW.............................................. 29
SECTION 7.07 COMPLIANCE WITH U.S. SECURITIES LAWS....................... 29
SECTION 7.08 HEADINGS................................................... 29
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _______________, 2006, among ARKEMA, a
societe anonyme incorporated under the laws of the Republic of France (herein
called the Company), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and all Owners and Beneficial Owners from time
to time of American Depositary Shares issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares.
The term "American Depositary Shares" shall mean the securities created
under this Deposit Agreement representing rights with respect to the Deposited
Securities. American Depositary Shares may be certificated securities evidenced
by Receipts or uncertificated securities. The form of Receipt annexed as Exhibit
A to this Deposit Agreement shall be the prospectus required under the
Securities Act of 1933 for sales of both certificated and uncertificated
American Depositary Shares. Except for those provisions of this Deposit
Agreement that refer specifically to Receipts, all the provisions of this
Deposit Agreement shall apply to both certificated and uncertificated American
Depositary Shares. Each American Depositary Share shall represent the number of
Shares specified in Exhibit A to this Deposit Agreement, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
American Depositary Shares are not delivered, and thereafter American Depositary
Shares shall represent the amount of Shares or Deposited Securities specified in
such Sections.
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SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean any person owning from time to time
any beneficial interest in American Depositary Shares.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.04 Company.
The term "Company" shall mean Arkema, a societe anonyme, organized under
the laws of the Republic of France, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the principal Paris office of BNP Paribas
Securities Services, as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.05, as substitute or
additional custodian or custodians hereunder, as the context shall require and
shall also mean all of them collectively.
SECTION 1.06 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with respect to Shares
or Deposited Securities, shall mean effecting one or more entries in an account
or accounts maintained by an institution authorized under applicable law to
effect transfers of such securities in the name of the person entitled to that
delivery.
(b) The term "deliver", or its noun form, when used with respect to
American Depositary Shares, shall mean (i) one or more book-entry transfers of
American Depositary Shares to an account or accounts at The Depository Trust
Company ("DTC") designated by the person entitled to such delivery, (ii) if
requested by the person entitled to such delivery, delivery at the Corporate
Trust Office of the Depositary to the person entitled to such delivery of one or
more Receipts evidencing American Depositary Shares registered in the name
requested by that person or (iii) registration of American Depositary Shares not
evidenced by a Receipt on the books of the Depositary in the name requested by
the person entitled to such delivery and whereupon mailing will be made to that
person of a statement confirming that registration.
(c) The term "surrender", when used with respect to American Depositary
Shares, shall mean (i) one or more book-entry transfers of American Depositary
Shares to the DTC account of the Depositary, (ii) surrender to the Depositary at
its Corporate Trust Office of one or more Receipts evidencing American
Depositary Shares or (iii) delivery to the Depositary at its Corporate Trust
Office of an instruction from an Owner surrendering American Depositary Shares
not evidenced by a Receipt.
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SECTION 1.07 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term "Corporate
Trust Office", when used with respect to the Depositary, shall mean the office
of the Depositary which at the date of this Deposit Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.05.
SECTION 1.10 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name American Depositary
Shares are registered on the books of the Depositary maintained for such
purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing certificated American Depositary Shares, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.14 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register American Depositary Shares and transfers of American Depositary Shares
as herein provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or American Depositary
Shares representing Shares, that are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering, or which are subject to resale limitations under Regulation D under
the Securities Act of 1933 or both, or which are held by an officer, director
(or persons performing similar functions) or other affiliate of the Company, or
which would
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require registration under the Securities Act of 1933 in connection with the
offer and sale thereof in the United States, or which are subject to other
restrictions on sale or deposit under the laws of the United States or the
Republic of France, or under a shareholder agreement or the articles of
association (statuts) of the Company.
SECTION 1.16 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.17 Shares.
The term "Shares" shall mean ordinary shares in registered form (titres
nominatifs, i.e., registered in the Company's share register maintained by the
Company or the Foreign Register, if applicable, on behalf of the Company ) or
bearer form (titres au porteur, i.e., registered in a share account maintained
by an accredited financial institution on behalf of the holder, including the
Custodian) of the Company that are validly issued and outstanding and fully
paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or interim certificates representing such Shares; provided,
however, that, if there shall occur any change in nominal value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.08, an exchange or conversion in respect of the Shares of
the Company, the term "Shares" shall thereafter also mean the successor
securities resulting from such change in nominal value, split-up or
consolidation or such other reclassification or such exchange or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of American
Depositary Shares.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall maintain books on which (i) each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered
and (ii) all American Depositary Shares delivered as hereinafter provided and
all registrations of transfer of American Depositary Shares shall be registered.
Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of such
Receipts.
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The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be reasonably required by the Depositary, upon
consultation with the Company, or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
American Depositary Shares evidenced by a Receipt, when properly endorsed
or accompanied by proper instruments of transfer, shall be transferable as
certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes,
and neither the Depositary nor the Company shall have any obligation or be
subject to any liability under this Deposit Agreement to any holder of a Receipt
unless such holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivering them to the
Depositary by inscription in the name of the Depositary in a share account
maintained by the Company or the Foreign Registrar, if applicable, in the case
of Shares in registered form or in an account maintained by the Custodian in the
case of Shares in bearer form, pursuant to appropriate instructions for transfer
in a form satisfactory to the Company or the Foreign Registrar, as applicable,
or the Custodian, as the case may be, together with all such certifications as
may be required by the Depositary or the Custodian or the Company in accordance
with the provisions of this Deposit Agreement, and, if the Depositary requires,
together with a written order directing the Depositary to deliver to, or upon
the written order of, the person or persons stated in such order, the number of
American Depositary Shares representing such deposit. The Company or the Foreign
Registrar, as applicable, in the case of Shares in registered form, or the
Custodian in the case of Shares in bearer form, will, upon the request of the
Depositary, issue or cause to be issued written confirmations as to holdings of
Shares, it being agreed and understood that such confirmations do not constitute
documents of title.
No Share shall be accepted for deposit unless accompanied by evidence
(which may be an opinion of counsel) reasonably satisfactory to the Depositary
that any necessary approval has been granted by any governmental body in the
Republic of France which is then performing the function of the regulation of
currency exchange. If required by the Depositary, Shares presented for deposit
at any time, whether or not the transfer books of the Company or the Foreign
Registrar, if applicable, are closed, shall also be accompanied by an agreement
or assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt
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transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder, together with the other documents required as specified above, such
Custodian shall notify the Depositary of such deposit and the person or persons
to whom or upon whose written order American Depositary Shares are deliverable
in respect thereof and the number of American Depositary Shares to be so
delivered. Such notification shall be made by letter or, at the request, risk
and expense of the person making the deposit, by cable, telex or facsimile
transmission (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company or
the Foreign Registrar that any Deposited Securities have been recorded upon the
books of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee). Upon receiving such
notice from such Custodian, or upon the receipt of Shares or evidence of the
right to receive Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall deliver, to or upon the order of
the person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees, if any, payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary Shares; Combination
and Split-up of Receipts; Interchange of Certificated and
Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of American Depositary Shares on its
transfer books from time to time, upon any surrender of American Depositary
Shares, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer or pursuant to a
proper instruction, as the case may be, and duly stamped as may be required by
the laws of the State of New York and of the United States of America. Thereupon
the Depositary shall deliver the number of American Depositary Shares
surrendered to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any
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authorized number of American Depositary Shares requested, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
The Depositary, upon surrender of a Receipt for the purpose of exchanging
for uncertificated American Depositary Shares, shall cancel that Receipt and
send the Owner a statement confirming that the Owner is the owner of
uncertificated American Depositary Shares. The Depositary, upon receipt of a
proper instruction from the Owner of uncertificated American Depositary Shares
for the purpose of exchanging for certificated American Depositary Shares, shall
execute and deliver to the Owner a Receipt evidencing those American Depositary
Shares.
The Depositary shall ensure that it has on hand at all times a sufficient
supply of Receipts to meet the demands for transfer.
The Depositary at its expense, may, upon at least 20 days' prior notice to
the Company, appoint one or more co-transfer agents for the purpose of effecting
registration of transfers of American Depositary Shares and combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Owners or persons entitled to American Depositary Shares and will be entitled
to protection and indemnity to the same extent as the Depositary. The Depositary
shall require each co-transfer agent it appoints under this Section 2.04 to give
notice in writing to the Depositary accepting such appointment.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of Deposited
Securities.
Upon surrender at the Corporate Trust Office of the Depositary of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of the fee of the Depositary for the
surrender of American Depositary Shares as provided in Section 5.09 and payment
of all taxes and governmental charges, if any, payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement, the Company's statuts and applicable
law and regulation, the Owner of those American Depositary Shares shall be
entitled to delivery of the amount of Deposited Securities at the time
represented by those American Depositary Shares as follows: (a) delivery of the
amount of Deposited Securities at the time represented by surrendered American
Depositary Shares to an account in the name of such Owner or such name as shall
be designated by such Owner maintained by the Company or the Foreign Registrar,
if applicable, in the case of Shares in registered form, or maintained by an
accredited financial institution in the case of Shares in bearer form, and (b)
delivery of any other securities, property and cash to which such Owner is then
entitled in respect of those American Depositary Shares to such Owner or such
person or persons as ordered by such Owner. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank. The Depositary may require the surrendering Owner to execute
and deliver to the Depositary a written
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order directing the Depositary to cause the Deposited Securities being withdrawn
to be delivered to or upon the written order of a person or persons designated
in such order in the manner provided in the preceding paragraph. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and
conditions of this Deposit Agreement and the Company's statuts, to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
the surrendered American Depositary Shares, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by those American Depositary Shares, or of any proceeds
of sale of any dividends, distributions or rights, which may at the time be held
by the Depositary.
At the request, risk and expense of any Owner so surrendering American
Depositary Shares, and for the account of such Owner, the Depositary shall
direct the Custodian to forward any cash or other property (other than rights)
comprising, and forward a certificate or certificates, if applicable, and other
proper documents of title for, the Deposited Securities represented by the
American Depositary Shares (evidenced by such Receipt, if applicable) to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American
Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or
surrender of any American Depositary Shares or split-up or combination of any
Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt or instruction for registration of transfer or surrender of American
Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it
for any tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
herein provided, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with the provisions
of this Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary or Company are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement or the statuts of
the Company, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in this Deposit Agreement,
the surrender of outstanding American Depositary Shares and
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withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the Foreign Registrar, if applicable, or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the American
Depositary Shares or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares which would be required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or such Shares are exempt
from registration thereunder. The Depositary shall comply with written
instructions of the Company not to accept for deposit under the Deposit
Agreement any Shares identified in such instructions at such times and under
such circumstances as may be reasonably specified in such instructions in order
to facilitate the Company's compliance with United States federal and state
securities and other laws and regulations, the laws and regulations of France or
of any other jurisdiction or any provisions of the Company's statuts.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Unless requested in writing by the Company to cease doing so, the
Depositary may, in accordance with this Section 2.09 and notwithstanding Section
2.03 hereof, deliver American Depositary Shares prior to the receipt of Shares
pursuant to Section 2.02 (a "Pre-Release"). The Depositary may, pursuant to
Section 2.05, deliver Shares upon the surrender of American Depositary Shares
that have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such American
Depositary Shares have been Pre-Released. The Depositary may receive American
Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom American Depositary Shares or Shares are to be delivered,
that such person, or its customer, owns the Shares or American Depositary Shares
to be remitted, as the case may be, (b) at all times fully collateralized with
cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number
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of American Depositary Shares which are outstanding at any time as a result of
Pre-Release will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to change or disregard such limit from time to time as it deems reasonably
appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 DTC Direct Registration System and Profile Modification System
(a) Notwithstanding the provisions of Section 2.04, the parties
acknowledge that the Direct Registration System ("DRS") and Profile Modification
System ("Profile") shall apply to uncertificated American Depositary Shares upon
acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant
to which the Depositary may register the ownership of uncertificated American
Depositary Shares, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Owners entitled thereto. Profile is a required
feature of DRS which allows a DTC participant, claiming to act on behalf of the
Owner of uncertificated American Depositary Shares, to direct the Depositary to
register a transfer of those American Depositary Shares to DTC or its nominee
and to deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the
Owner to register such transfer.
(b) Upon issuance of American Depositary Shares in DRS, the American
Depositary Shares of each Owner will be registered in the name of each such
Owner. Each Owner will be given the option of (i) receiving a Receipt evidencing
its American Depositary Shares, (ii) transferring such American Depositary
Shares to a DTC participant designated by the Owner of such American Depositary
Shares (which designation shall be unanimous if there is more than one Owner of
the same American Depositary Shares), or (iii) maintaining its American
Depositary Shares in DRS. Interchanges of certificated and uncertificated
American Depositary Shares shall be effected pursuant to the terms of Section
2.04.
(c) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting registration of
transfer and delivery described in subsection (a) has the actual authority to
act on behalf of the Owner. The Company and each Owner agree that the Depositary
shall have no liability for relying upon the authority of and information in,
nor for complying with directions from, a DTC participant as set forth above.
The Company shall indemnify and hold harmless the Depositary from and against
any liability, expense, damage, loss and judgment arising from or related to the
foregoing (including reasonable attorneys fees and expenses and expenses arising
from or connected with the enforcement of this provision). For the avoidance of
doubt, (i) the Depositary shall be fully protected by the foregoing limitation
of liability and indemnification with respect to reliance upon and compliance
with instructions from the DTC participant even if the Depositary's reliance on,
and compliance with, such instructions is determined by a final, non-appealable
order or judgment of a court of competent jurisdiction to
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constitute negligence, willful misconduct, breach of any duty owed by the
Depositary to such Owner or violation of any law and (ii) the forgoing shall not
apply to the manner in which the Depositary carries out actual transfer of the
American Depositary Shares which are the subject of the DTC participant's
instruction, which transfer shall continue to be governed by the other
applicable terms of this Deposit Agreement. By way of example and not by way of
limitation, if a court of competent jurisdiction determines that the transfer of
American Depositary Shares pursuant to a DTC participant's instruction without
obtaining prior authorization from the Owner constitutes negligence, the
Depositary will nevertheless be protected under this subparagraph (b); on the
other hand, in carrying out such instructions, if the Depositary transfers
American Depositary Shares from the wrong account or to the wrong DTC
participant, the obligation to indemnify the Depositary shall be determined in
accordance with Sections 5.03 and 5.08.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES
SECTION 3.01 Requirements for Holdings Exceeding Certain Percentages
Any Beneficial Owner, acting alone or in concert with others, that becomes
the holder, directly or indirectly, of more than certain percentages provided by
French law and regulations and by the statuts of the Company, as amended from
time to time, of Deposited Securities or voting rights of the Company, or that
increases or decreases its holding of Deposited Securities or voting rights
above or below any of those percentages, is required to notify, in compliance
with French law and regulations and with the statuts of the Company, as amended
from time to time, the Company and the French securities regulator (Autorite des
marches financiers) of the number of Deposited Securities and voting rights it
holds.
SECTION 3.02 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
may be required from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary.
The Depositary may withhold the delivery or registration of transfer of American
Depositary Shares or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. The Depositary shall provide the
Company upon its written request with copies of any such proofs, other
information and certificates which it receives unless such disclosure is
prohibited by law.
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SECTION 3.03 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
of such American Depositary Shares to the Depositary. The Depositary may refuse
to register any transfer of those American Depositary Shares or any withdrawal
of Deposited Securities represented by those American Depositary Shares until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Owner or Beneficial Owner thereof any part or
all of the Deposited Securities represented by those American Depositary Shares,
and may apply such dividends or other distributions or the proceeds of any such
sale in payment of such tax or other governmental charge and the Owner or
Beneficial Owner of such American Depositary Shares shall remain liable for any
deficiency.
SECTION 3.04 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant, in addition to such representations and
warranties as may be required pursuant to Section 2.02, that such Shares and
each certificate therefor, if applicable, are validly issued, fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that such Shares are not and
American Depositary Shares representing such Shares would not be, Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and delivery of American Depositary Shares.
SECTION 3.05 Disclosure of Interests.
The Company may from time to time request Owners to provide information
(a) as to the capacity in which such Owners own or owned American Depositary
Shares, (b) regarding the identity of any other persons then or previously
interested in such American Depositary Shares and (c) regarding the nature of
such interest and various other matters pursuant to applicable law or the
Company's statuts or other such corporate document of the Company, all as if
such American Depositary Shares were to the extent practicable the underlying
Shares. Each Owner and Beneficial Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this Section. The
Depositary agrees to use reasonable efforts to comply with written instructions
received from the Company requesting that the Depositary forward any such
requests to Owners or to forward to the Company any responses to such requests
received by the Depositary.
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.05, convert, as promptly as practicable, such dividend
or distribution into Dollars and
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shall distribute, as promptly as practicable, the amount thus received (net of
the fees and expenses of the Depositary as provided in Section 5.09) to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Company or 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 Owner of the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Company or its agent will remit to the appropriate
governmental agency in the Republic of France all amounts withheld and owing to
such agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Owners.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall, after consultation with the
Company, cause the securities or property received by it to be distributed to
the Owners entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary reasonably deems such distribution not to be feasible,
the Depositary may, after consultation with the Company, 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 in
Section 5.09) shall be distributed by the Depositary to the Owners entitled
thereto, all in the manner and subject to the conditions described in Section
4.01. No distribution to Owners pursuant to this Section 4.02 shall be
unreasonably delayed by any action of the Depositary or any of its agents.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, upon prior consultation
with and approval of the Company, and shall if the Company shall so request,
deliver as promptly as practicable to the Owners entitled thereto, in proportion
to the number of American Depositary Shares representing
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such Deposited Securities held by them respectively, an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and after deduction or
upon issuance of American Depositary Shares, including the withholding of any
tax or other governmental charge as provided in Section 4.11 and the payment of
the fees and expenses of the Depositary as provided in Section 5.09. The
Depositary may withhold any such delivery of American Depositary Shares if it
has not received satisfactory assurances from the Company that such distribution
does not require registration under the Securities Act of 1933 or is exempt from
registration under the provisions of such Act. In lieu of delivering fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.01. No distribution to Owners pursuant to this Section 4.03 shall be
unreasonably delayed by any action of the Depositary or any of its agents. If
additional American Depositary Shares are not so delivered, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all or certain Owners but not to other Owners, the
Depositary may, and at the request of the Company shall, distribute to any Owner
to whom it determines the distribution to be lawful and feasible, in proportion
to the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will as promptly as practicable make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and
- 14 -
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, deliver American Depositary
Shares to such Owner. In the case of a distribution pursuant to the second
paragraph of this Section, such deposit shall be made, and Deposited Securities
shall be delivered, under depositary arrangements which provide for issuance of
Deposited Securities subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may, and at
the request of the Company shall, use reasonable efforts to sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such sales
(net of the fees and expenses of the Depositary as provided in Section 5.09 and
all taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any American Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner 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 the Depositary may rely that such distribution to such Owner is
exempt from such registration, it being understood that the Company shall have
no obligation to furnish any such opinion.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
Notwithstanding any terms of this Deposit Agreement to the contrary, the
Company shall have no obligation to prepare and file a registration statement
for any purpose.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or
- 15 -
rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall convert or cause to be converted, as promptly as
practicable, by sale or in any other manner that it may determine in accordance
with applicable law, such foreign currency into Dollars, and such Dollars shall
be distributed, as promptly as practicable, to the Owners entitled thereto or,
if the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable, provided,
however, that the Company shall not be obligated to make any such filings.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary and the Company agree to
cause a change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall find it reasonably necessary
or convenient, the Depositary shall fix a record date which date shall be, the
same or as near as practicable to the record date set by the Company, if any,
(a) for the determination of the Owners
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who shall be (i) entitled to receive such dividend, distribution or rights or
the net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
assessed by the Depositary pursuant to this Deposit Agreement, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.01 through 4.05 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.07 Voting of Deposited Securities.
Subject to applicable French law and regulations and subject to the
Company's statuts as amended from time to time, upon receipt from the Company of
notice of any meeting or solicitation of proxies or consents of holders of
Shares or other Deposited Securities, if requested in writing by the Company,
the Depositary shall, as soon as practicable thereafter, mail to the Owners (a)
an English version of the notice of such meeting sent by the Company to the
Depositary, (b) a statement that the Owners as of the close of business on a
specified record date will be entitled to forward to the Depositary instructions
from the Beneficial Owners as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares, (c) an English version of any
materials or other documents provided by the Company for the purpose of enabling
such Owner to exercise such voting rights, (d) a statement setting forth the cut
off date established by the Depositary for the receipt of the proxy and voting
instructions form (the "Receipt Date") and (e) a proxy and voting instructions
form (the "Voting Form"), which will be subject to the following procedures:
(i) If the Voting Form is signed and returned and if an amendment is
subsequently proposed to a resolution with respect to which the Owner voted in
favor, then such Owner's votes will count as votes in favor of the amended
resolution provided that such amendment is recommended by the Board of
Directors;
(ii) If the Voting Form is signed and returned by an Owner and if
new resolutions are proposed after the mailing of the materials listed
hereunder, then such Owner's votes will count as votes in favor of such new
resolutions provided that such resolutions, including any amendments thereto,
are recommended by the Board of Directors;
(iii) With respect to a Voting Form which is signed but for which no
voting instructions have been indicated with respect to some or all of the
resolutions, then such Owner's votes will count as votes in favor of proposals
recommended by the Board of Directors and against proposals opposed by the Board
of Directors;
(iv) a Voting Form will otherwise be voted in accordance with
applicable French law; and
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(v) Any Owner completing and returning a Voting Form, to the extent
such Owner is a Beneficial Owner, will be deemed to represent that such Owner is
a non-resident of France within the meaning of articles L.228-1 and seq. of the
French Commercial Code. Any Beneficial Owner forwarding instructions to an Owner
will be deemed to represent that such Beneficial Owner is a non-resident of
France within the meaning of articles L.228-1 and seq. of the French Commercial
Code.
Upon receipt by the Depositary from an Owner of a properly completed and
signed Voting Form or other written instructions (to which written instructions
the provisions of clauses (i) to (iv) above, inclusive, shall apply) on or
before the Receipt Date, the Depositary shall endeavor, in so far as practicable
and permitted under any applicable provisions of French law, the Company's
statuts, as amended from time to time and the Deposited Securities, to vote or
cause to be voted the amount of Deposited Securities represented by the American
Depositary Shares to which that Voting Form or other written instructions relate
in accordance with such Voting Form or other written instructions or in
accordance with the statement under (e) above. The Depositary shall not vote,
cause to vote or attempt to exercise the right to vote that attaches to such
Shares or other Deposited Securities other than in accordance with properly
completed and signed Voting Forms or other written instructions received from
the Owner or in accordance with the statement under (e) above.
In the event that an Owner transfers American Depositary Shares with
respect to which it has already sent a Voting Form to the Depositary after the
Receipt Date, the transferee of the American Depositary Shares shall not be
entitled to give voting instructions or to change or cancel the voting
instructions already given by the transferor.
In the event that an Owner surrenders (as described in Section 2.05
hereof) the American Depositary Shares with respect to which it has already sent
a Voting Form to the Depositary after the Receipt Date, the such person shall
not be entitled to change or cancel the voting instructions already given by
that person.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
the Company shall endeavor to give the Depositary notice of any such meeting or
solicitation not less than 35 days prior to the meeting date.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities, shall
be treated as new Deposited
- 18 -
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, the
right to receive the new Deposited Securities so received, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, after consultation with the Company to the extent practicable,
and shall if the Company shall so request in writing in English, execute and
deliver additional Receipts as in the case of a dividend in Shares, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports, notices and other communications, including
any proxy solicitation material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary shall also, upon written request by the Company, send to
the Owners copies of such reports when furnished by the Company pursuant to
Section 5.06. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English, to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company (unless otherwise agreed in writing by the Company and the
Depositary), furnish to it a list, as of a recent date, of the names, addresses
and holdings of American Depositary Shares by all persons in whose names
American Depositary Shares are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary reasonably deems necessary and practicable to
pay such taxes or charges and the Depositary shall distribute the net proceeds
of any such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
The Depositary will use reasonable efforts to follow the procedures
established by the French Treasury for eligible United States Owners to (i)
benefit, at the time of payment of the relevant dividend, from the reduced rate
of French withholding tax and any available tax credit under the applicable
income tax treaty between the United States and France, or if not possible (ii)
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 benefit
from any available tax credit.
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To effect such treaty benefit claims, recovery and receipt, the Depositary upon
request shall provide U.S. resident Owners with the appropriate French tax forms
and instructions for completing such forms or such other form or document as may
be required for such purpose together with instructions which shall be provided
by the Company to the Depositary, and shall advise such U.S. resident Owners to
return such forms or documents to it properly completed and executed in due
time. Upon receipt of such forms or documents properly completed and executed by
U.S. resident Owners, the Depositary shall promptly cause them to be filed in
due time with the appropriate French tax authorities, and upon receipt of any
resulting remittance, the Depositary shall distribute to the Owners entitled
thereto, as soon as practicable, the proceeds thereof in Dollars in accordance
with Section 4.05.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of American Depositary Shares and transfers of American Depositary
Shares which at all reasonable times shall be open for inspection by the Owners
and the Company, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to this Deposit Agreement or the
American Depositary Shares.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder and shall close the books at the reasonable request of the
Company. The Depositary shall notify the Company of any closure under the
preceding sentence that is other than in the ordinary course of business.
If any American Depositary Shares are listed on one or more stock
exchanges in the United States, the Depositary shall act as Registrar or upon at
least 20 days' prior notice to the Company appoint a Registrar or one or more
co-registrars for registry of such American Depositary Shares in accordance with
any requirements of such exchange or exchanges.
The Company will have the right to inspect the transfer and registration
records of the Depositary, take copies thereof and to require the Depositary,
the Registrar and any co-registrars, at the Company's expense, to supply copies
of such portions of such records as the Company may reasonably request.
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SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner (i) if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the statuts of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or Deposited Securities it is
provided shall be done or performed, (ii) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) for the inability of any
Owner or Beneficial Owner to benefit from any distribution, offering, right or
other benefit which is made available to holders of Deposited Securities but is
not, under the terms of this Deposit Agreement, made available to Owners or
Beneficial Owners, or (v) for any special, consequential or punitive damages for
any breach of the terms of this Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company and its directors, employees, agents and affiliates assume no
obligation nor shall they be subject to any liability under this Deposit
Agreement to Owners or Beneficial Owners, except that the Company agrees to
perform its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith.
The Depositary and its directors, employees, agents and affiliates assume
no obligation nor shall they be subject to any liability under this Deposit
Agreement to any Owner or Beneficial Owner (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that the Depositary agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor the Company nor any of their directors,
employees, agents and affiliates shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the American Depositary Shares on behalf
of any Owner or Beneficial Owner or any person.
Neither the Depositary nor the Company nor any of their directors,
employees, agents and affiliates shall be liable for any action or nonaction by
it in reliance upon the advice of
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or information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or any other person believed by it in good faith to be
competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 90 days prior
written notice of such removal, to become effective upon the later of (i) the
90th day after delivery of the notice to the Depositary and (ii) the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts that are reasonable under the
circumstances to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Every successor depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Company shall promptly execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall promptly and duly assign, transfer and deliver all
right, title and interest in the Deposited Securities to such successor, shall
promptly deliver to such successor a list of the Owners of all outstanding
Receipts and shall take any other action that the Company may reasonably request
in furtherance of the foregoing. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
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SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians, each
of which shall thereafter be one of the Custodians hereunder. The Depositary
shall notify the Company of the appointment of a substitute or additional
Custodian as soon as practicable before the date on which such appointment is to
become effective. Upon demand of the Depositary any Custodian shall deliver such
of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary. Upon any such change, the Depositary shall give
notice thereof in writing to the Company, as promptly as practicable.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, as
promptly as practicable and at the Company's expense (unless otherwise agreed in
writing by the Company and the Depositary), of copies of such notices, reports
and communications to all Owners. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time (after verification from the Depositary of such
quantity), in order for the Depositary to effect such mailings.
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SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will furnish to the Depositary, as promptly as
practicable, a written opinion from U.S. counsel for the Company, which may be
internal U.S. counsel, which counsel shall be reasonably satisfactory to the
Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making such
Distribution available to Owners entitled thereto. If in the opinion of such
counsel a Registration Statement is required, such counsel shall furnish to the
Depositary a written opinion as to whether or not there is a Registration
Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Shares, either
originally issued or previously issued and reacquired by the Company or any such
affiliate, unless a Registration Statement is in effect as to such Shares under
the Securities Act of 1933 or the Company delivers to the Depositary an opinion
of United States counsel to the effect that the issuance of such Shares is
exempt from registration requirement of the Securities Act of 1933.
Nothing in this Section 5.07 or elsewhere in this Deposit Agreement shall
create any obligation on the part of the Company or the Depositary to file a
registration statement in respect of any securities or rights.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to the reasonable
fees and expenses of counsel) which may arise out of any registration with the
Commission of American Depositary Shares or Deposited Securities or the offer or
sale thereof in the United States or out of acts performed or omitted, pursuant
to the provisions of this Deposit Agreement and of the Receipts, as the same may
be amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates. Any person seeking indemnification hereunder
shall notify the Company of the commencement of any indemnifiable action or
claim promptly after any such person becomes aware of such commencement and
shall consult in good faith with the Company as to the conduct of the defense of
such action or claim (including the compromise or settlement thereof).
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of American Depositary Shares in
accordance with Section 2.09 and which would not otherwise have arisen had such
American Depositary Shares not been the subject of a Pre-Release pursuant to
Section 2.09; provided, however, that the indemnities provided in the preceding
paragraph shall apply to any such liability or expense (i) to the extent that
such liability
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or expense would have arisen had the American Depositary Shares not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (x) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing and not
materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (y) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary or its
Custodian or their respective directors, employees, agents and affiliates due to
their negligence or bad faith.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees and reasonable expenses of the
Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its detailed statement for such charges and
expenses to the Company at least once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section
4.03), or by Owners, as applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the delivery of American Depositary
Shares pursuant to Section 2.03, 4.03 or 4.04 and the surrender of American
Depositary Shares pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to this Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant
to Section 4.02, such fee being in an amount equal to the fee for the execution
and delivery of American Depositary Shares referred to above which would have
been charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by
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the Depositary to Owners, (8) in addition to any fee charged under clause (6), a
fee of $.02 or less per American Depositary Share (or portion thereof) for
depositary services, which will accrue on the last day of each calendar year and
which will be payable as provided in clause (9) below and (9) any other charges
payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 and shall be payable at the sole discretion of the
Depositary by billing such Owners for such charge or by deducting such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to the Company statuts and Section 2.09 hereof,
may own and deal in any class of securities of the Company and its affiliates
and in American Depositary Shares.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity.
Subject to the provisions of Section 5.04, the Company agrees not to
appoint any other depositary for issuance of American or global depositary
shares or receipts so long as The Bank of New York is acting as Depositary
hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement in writing between the
Company and the Depositary without the consent of Owners or Beneficial Owners in
any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding American Depositary Shares until the expiration of
thirty days after notice of such
- 26 -
amendment shall have been given to the Owners of outstanding American Depositary
Shares. Every Owner and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such American Depositary
Shares or any interest therein, 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 Owner to surrender American Depositary Shares
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.02 Termination.
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all American Depositary Shares then outstanding at least 30 days prior
to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of termination to
the Company and the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the date of termination, if at any time 90 days shall
have expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. On and after
the date of termination, the Owner of American Depositary Shares will, upon (a)
surrender of such American Depositary Shares, (b) payment of the fee of the
Depositary for the surrender of American Depositary Shares referred to in
Section 2.05, and (c) payment of any applicable taxes or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by those American Depositary Shares. If any American
Depositary Shares shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
American Depositary Shares, shall suspend the distribution of dividends to the
Owners thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
At any time after the expiration of one year from the date of termination,
the Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of American Depositary Shares
that have not theretofore been surrendered, such Owners thereupon becoming
general creditors of the Depositary with respect to such net proceeds. After
making such sale, the Depositary shall be discharged from all obligations under
this Deposit Agreement, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of
American Depositary Shares, any expenses for the account of the Owner of such
American Depositary Shares in accordance with the terms and
- 27 -
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges) and except as provided in Section 5.08. Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09 hereof.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by registered mail or cable,
telex or facsimile transmission confirmed by letter, addressed to ARKEMA, 0-0
xxxxx Xxxxxxxx 00000 Xxxxxxx, Xxxxxx, Attention: General Counsel, or any other
place to which the Company may have transferred its principal office with notice
to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office with notice to the Company.
- 28 -
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for American Depositary Shares of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail (other than registered mail) or cable,
telex or facsimile transmission shall be deemed to be effected at the time when
a duly addressed letter containing the same (or a confirmation thereof in the
case of a cable, telex or facsimile transmission) is deposited, postage prepaid,
in a post-office letter box. Notices sent by registered mail or personally
delivered will be deemed to have been duly given on the date on which signed for
or on behalf of the addressee. The Depositary or the Company may, however, act
upon any cable, telex or facsimile transmission received by it, notwithstanding
that such cable, telex or facsimile transmission shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.06 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of the Republic of France. It is understood that, notwithstanding any present or
future provision of the laws of the State of New York, the rights of holders of
the Shares and of any other Deposited Securities and the obligations and duties
of the Company in respect of such holders, as such, shall be governed by the
laws of the Republic of France (or, if applicable, such other law as may govern
Deposited Securities).
SECTION 7.07 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
SECTION 7.08 Headings
Heading contained herein are included for convenience only and are not to
be used in construing or interpreting any provision hereof.
- 29 -
IN WITNESS WHEREOF, ARKEMA and THE BANK OF NEW YORK have duly executed
this Deposit Agreement as of the day and year first set forth above and all
Owners and Beneficial Owners shall become parties hereto upon acceptance by them
of Receipts issued in accordance with the terms hereof.
ARKEMA
By: __________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: __________________________
Name:
Title:
- 30 -
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents one
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
THE PAR VALUE OF 10 EUROS EACH OF
ARKEMA
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF FRANCE)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of ARKEMA,
incorporated under the laws of the Republic of France (herein called the
"Company"). At the date hereof, each American Depositary Share represents one
Share deposited or subject to deposit under the Deposit Agreement (as such term
is hereinafter defined) at the Paris office of BNP Paribas Securities Services
(herein called the "Custodian"). The Depositary's Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ______________, 2006 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from time to time of American Depositary Shares issued
thereunder, each of whom by accepting American Depositary Shares agrees to
become a party thereto and become bound by all the terms and conditions thereof.
The Deposit Agreement sets forth the rights of Owners and Beneficial Owners and
the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of American
Depositary Shares, and upon payment of the fee of the Depositary provided in
this Receipt, and subject to the terms and conditions of the Deposit Agreement,
the Company's articles of association (statuts) and applicable law and
regulation, the Owner of those American Depositary Shares is entitled to
delivery of the amount of Deposited Securities at the time represented by those
American Depositary Shares as follows: (a) delivery of the amount of Deposited
Securities at the time represented by surrendered American Depositary Shares to
an account in the name of such Owner or such name as shall be designated by such
Owner maintained by the Company or the Foreign Registrar, if applicable, in the
case of Shares in registered form, or maintained by an accredited financial
institution in the case of Shares in bearer form, and (b) delivery of any other
securities, property and cash to which such Owner is then entitled in respect of
those American Depositary Shares to such Owner or such person or persons as
ordered by such Owner. Such delivery will be made at the option of the Owner
hereof, either at the office of the Custodian or at the Corporate Trust Office
of the Depositary.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
Transfers of American Depositary Shares may be registered on the books of
the Depositary by the Owner in person or by a duly authorized attorney, upon
surrender of those American Depositary Shares properly endorsed for transfer or
accompanied by proper instruments of transfer (in the case of a Receipt) or
pursuant to a proper instruction (in the case of uncertificated American
Depositary Shares) and funds sufficient to pay any applicable transfer taxes and
the expenses of the Depositary and upon compliance with such regulations, if
any, as the Depositary may establish for such purpose. This Receipt may be split
into other such
Receipts, or may be combined with other such Receipts into one Receipt,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered. The Depositary, upon surrender of a Receipt for
the purpose of exchanging for uncertificated American Depositary Shares, shall
cancel that Receipt and send the Owner a statement confirming that the Owner is
the Owner of uncertificated American Depositary Shares. The Depositary, upon
receipt of a proper instruction from the Owner of uncertificated American
Depositary Shares for the purpose of exchanging for certificated American
Depositary Shares, shall execute and deliver to the Owner a Receipt evidencing
those American Depositary Shares. As a condition precedent to the delivery,
registration of transfer, or surrender of any American Depositary Shares or
split-up or combination of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Custodian, or Registrar may require payment from
the depositor of the Shares or the presenter of the Receipt or instruction for
registration of transfer or surrender of American Depositary Shares not
evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in the
Deposit Agreement, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with the provisions
of the Deposit Agreement.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary or Company are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or the statuts of
the Company, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding American Depositary Shares and
withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the Foreign Registrar, if applicable, or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the American
Depositary Shares or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares which would be required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or such Shares are exempt
from registration thereunder. The Depositary shall comply with written
instructions of the Company not to accept for deposit under the Deposit
Agreement any Shares identified in such instructions at such times and under
such circumstances as may be reasonably specified in such instructions in order
to facilitate the Company's compliance with United States federal and state
securities and other laws and regulations, the laws and regulations of France or
of any other jurisdiction or any provisions of the Company's statuts.
2
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
of such American Depositary Shares to the Depositary. The Depositary may refuse
to register any transfer of those American Depositary Shares or any withdrawal
of Deposited Securities represented by those American Depositary Shares until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Owner or Beneficial Owner thereof any part or
all of the Deposited Securities represented by those American Depositary Shares,
and may apply such dividends or other distributions or the proceeds of any such
sale in payment of such tax or other governmental charge and the Owner or
Beneficial Owner of such American Depositary Shares shall remain liable for any
deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant, in addition to such representations and
warranties as may be required pursuant to Section 2.02 of the Deposit Agreement,
that such Shares and each certificate therefor, if applicable, are validly
issued, fully paid, nonassessable and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
such Shares are not and American Depositary Shares representing such Shares
would not be, Restricted Securities. Such representations and warranties shall
survive the deposit of Shares and delivery of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
may be required from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary.
The Depositary may withhold the delivery or registration of transfer of any
American Depositary Shares or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. The
Depositary shall provide the Company upon its written request with copies of any
such proofs, other information and certificates which it receives unless such
disclosure is prohibited by law. No Share shall be accepted for deposit unless
accompanied by evidence (which may be an opinion of counsel) reasonably
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in the Republic of France which is then performing the
function of the regulation of currency exchange.
3
7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section 4.03
of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the delivery of American
Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
Agreement and the surrender of American Depositary Shares pursuant to Section
2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Owners, (8) in addition to any fee charged under clause (6), a fee of $.02 or
less per American Depositary Share (or portion thereof) for depositary services,
which will accrue on the last day of each calendar year and which will be
payable as provided in clause (9) below and (9) any other charges payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to the Company statuts and Article 8 hereof, may
own and deal in any class of securities of the Company and its affiliates and in
American Depositary Shares.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so, the
Depositary may, in accordance with the Article 8 and notwithstanding Section
2.03 of the Deposit Agreement, deliver American Depositary Shares prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05 of the Deposit
Agreement, deliver Shares upon the surrender of American Depositary Shares that
4
have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such American
Depositary Shares have been Pre-Released. The Depositary may receive American
Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom American Depositary Shares or Shares are to be delivered,
that such person, or its customer, owns the Shares or American Depositary Shares
to be remitted, as the case may be, (b) at all times fully collateralized with
cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of American Depositary Shares which are
outstanding at any time as a result of Pre-Release will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees that when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable as certificated registered securities under the
laws of New York. American Depositary Shares not evidenced by Receipts shall be
transferable as uncertificated registered securities under the laws of New York.
The Depositary, notwithstanding any notice to the contrary, may treat the Owner
of American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying at the public reference
5
facilities maintained by the Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners at its
Corporate Trust Office any reports, notices and other communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also, upon written request by the Company, send to
Owners copies of such reports when furnished by the Company pursuant to the
Deposit Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of American Depositary Shares and transfers of American Depositary
Shares which at all reasonable times shall be open for inspection by the Owners
and the Company, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
American Depositary Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement,
convert, as promptly as practicable, such dividend or distribution into dollars
and will distribute, as promptly as practicable, the amount thus received (net
of the fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) to the Owners entitled thereto; provided,
however, that in the event that the Company or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Owners of the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will, after consultation with the Company, cause the securities
or property received by it to be distributed to the Owners entitled thereto, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of
the Depositary such distribution cannot be made proportionately among the Owners
of Receipts entitled thereto, or if for any other reason the Depositary
reasonably deems such distribution not to be feasible, the Depositary may, after
consultation with the Company, 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
6
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement) will be distributed by the Depositary to the Owners of Receipts
entitled thereto all in the manner and subject to the conditions described in
Section 4.01 of the Deposit Agreement. No distribution to Owners pursuant to
this Article 12 shall be unreasonably delayed by any action of the Depositary or
any of its agents.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, upon prior consultation
with and approval of the Company, and shall if the Company shall so request,
deliver as promptly as practicable to the Owners entitled thereto, an aggregate
number of American Depositary Shares representing the amount of Shares received
as such dividend or free distribution, subject to the terms and conditions of
the Deposit Agreement with respect to the deposit of Shares and after deduction
or upon issuance of American Depositary Shares, including the withholding of any
tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement. In lieu of
delivering fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01of the Deposit Agreement. No distribution to
Owners pursuant to Section 4.03 of the Deposit Agreement shall be unreasonably
delayed by any action of the Depositary or any of its agents. If additional
American Depositary Shares are not so delivered, each American Depositary Share
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary reasonably deems necessary and practicable to
pay any such taxes or charges, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes or charges to the Owners
of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all or certain Owners but not to other Owners, the
Depositary may, and at the
7
request of the Company shall, distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will as promptly as practicable make
such rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner has executed such documents as
the Company has determined in its sole discretion are reasonably required under
applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, deliver American Depositary Shares to such Owner. In the
case of a distribution pursuant to the second paragraph of this Article 13, such
deposit shall be made, and Deposited Securities shall be delivered, under
depositary arrangements which provide for issuance of Deposited Securities
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may, and at
the request of the Company shall, use reasonable efforts to sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such sales
(net of the fees and expenses of the Depositary as provided in Section 5.09 of
the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
8
to endeavor to have such a registration statement declared effective. If an
Owner 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 the Depositary may rely that such distribution to such Owner is
exempt from such registration, it being understood that the Company shall have
no obligation to furnish any such opinion.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
Notwithstanding any terms of the Deposit Agreement to the contrary, the
Company shall have no obligation to prepare and file a registration statement
for any purpose.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, as
promptly as practicable, by sale or in any other manner that it may determine in
accordance with applicable law, such foreign currency into Dollars, and such
Dollars shall be distributed, as promptly as practicable, to the Owners entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable, provided,
however, that the Company shall not be obligated to make any such filings.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
9
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary and the Company agree to
cause a change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall find it reasonably necessary
or convenient, the Depositary shall fix a record date which date shall be, the
same or as near as practicable to the record date set by the Company, if any,
(a) for the determination of the Owners who shall be (i) entitled to receive
such dividend, distribution or rights or the net proceeds of the sale thereof,
(ii) entitled to give instructions for the exercise of voting rights at any such
meeting or (iii) responsible for any fee assessed by the Depositary pursuant to
the Deposit Agreement, or (b) on or after which each American Depositary Share
will represent the changed number of Shares, subject to the provisions of the
Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Subject to applicable French law and regulations and subject to the
Company's statuts as amended from time to time, upon receipt from the Company of
notice of any meeting or solicitation of proxies or consents of holders of
Shares or other Deposited Securities, if requested in writing by the Company,
the Depositary shall, as soon as practicable thereafter, mail to the Owners (a)
an English version of the notice of such meeting sent by the Company to the
Depositary, (b) a statement that the Owners as of the close of business on a
specified record date will be entitled to forward to the Depositary instructions
from the Beneficial Owners as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares, (c) an English version of any
materials or other documents provided by the Company for the purpose of enabling
such Owner to exercise such voting rights, (d) a statement setting forth the cut
off date established by the Depositary for the receipt of the proxy and voting
instructions form (the "Receipt Date") and (e) a proxy and voting instructions
form (the "Voting Form"), which will be subject to the following procedures:
(i) If the Voting Form is signed and returned and if an amendment is
subsequently proposed to a resolution with respect to which the Owner voted in
favor, then such Owner's votes will count as votes in favor of the amended
resolution provided that such amendment is recommended by the Board of
Directors;
10
(ii) If the Voting Form is signed and returned by an Owner and if new
resolutions are proposed after the mailing of the materials listed hereunder,
then such Owner's votes will count as votes in favor of such new resolutions
provided that such resolutions, including any amendments thereto, are
recommended by the Board of Directors;
(iii) With respect to a Voting Form which is signed but for which no
voting instructions have been indicated with respect to some or all of the
resolutions, then such Owner's votes will count as votes in favor of proposals
recommended by the Board of Directors and against proposals opposed by the Board
of Directors;
(iv) a Voting Form will otherwise be voted in accordance with applicable
French law; and
(v) Any Owner completing and returning a Voting Form, to the extent such
Owner is a Beneficial Owner, will be deemed to represent that such Owner is a
non-resident of France within the meaning of articles L.228-1 and seq. of the
French Commercial Code. Any Beneficial Owner forwarding instructions to an Owner
will be deemed to represent that such Beneficial Owner is a non-resident of
France within the meaning of articles L.228-1 and seq. of the French Commercial
Code.
Upon receipt by the Depositary from an Owner of a properly completed and
signed Voting Form or other written instructions (to which written instructions
the provisions of clauses (i) to (iv) above, inclusive, shall apply) on or
before the Receipt Date, the Depositary shall endeavor, in so far as practicable
and permitted under any applicable provisions of French law, the Company's
statuts, as amended from time to time and the Deposited Securities, to vote or
cause to be voted the amount of Deposited Securities represented by the American
Depositary Shares to which that Voting Form or other written instructions relate
in accordance with such Voting Form or other written instructions or in
accordance with the statement under (e) above. The Depositary shall not vote,
cause to vote or attempt to exercise the right to vote that attaches to such
Shares or other Deposited Securities other than in accordance with properly
completed and signed Voting Forms or other written instructions received from
the Owner or in accordance with the statement under (e) above.
In the event that an Owner transfers American Depositary Shares with
respect to which it has already sent a Voting Form to the Depositary after the
Receipt Date, the transferee of the American Depositary Shares shall not be
entitled to give voting instructions or to change or cancel the voting
instructions already given by the transferor.
In the event that an Owner surrenders (as described in Section 2.05
hereof) the American Depositary Shares with respect to which it has already sent
a Voting Form to the Depositary after the Receipt Date, the such person shall
not be entitled to change or cancel the voting instructions already given by
that person.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
the Company shall endeavor to give
11
the Depositary notice of any such meeting or solicitation not less than 35 days
prior to the meeting date.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation, or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, the right to receive the new Deposited Securities so
received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, after consultation with the
Company to the extent practicable, and shall if the Company shall so request in
writing in English, execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner, (i) if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority, or by reason of any provision, present or
future, of the articles of association (statuts) of the Company, or by reason of
any provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from or be subject to any civil
or criminal penalty on account of doing or performing any act or thing which by
the terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed, (ii) by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, (iii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement, (iv) for the inability of any Owner or Beneficial
Owner to benefit from any distribution, offering, right or other benefit which
is made available to holders of Deposited Securities but is not, under the terms
of the Deposit Agreement, made available to Owners or Beneficial Owners, or (v)
for any special, consequential or punitive damages for any breach of the terms
of the Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary nor any
of their respective
12
directors, employees, agents or affiliates assume any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
and its directors, employees, agents or affiliates shall not be subject to any
liability with respect to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company nor any of their respective directors,
employees, agents or affiliates shall be under any obligation to appear in,
prosecute or defend any action, suit, or other proceeding in respect of any
Deposited Securities or in respect of the American Depositary Shares, on behalf
of any Owner or Beneficial Owner or other person. Neither the Depositary nor the
Company nor any of their respective directors, employees, agents or affiliates
shall be liable for any action or nonaction by it in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary
shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities or for the manner in which any such vote is cast
or the effect of any such vote, provided that any such action or nonaction is in
good faith. The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with a matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises, the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Company agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
liability or expense (including, but not limited to the reasonable fees and
expenses of counsel) which may arise out of any registration with the Commission
of American Depositary Shares or Deposited Securities or the offer or sale
thereof in the United States or out of acts performed or omitted, pursuant to
the provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates. Any person seeking indemnification hereunder
shall notify the Company of the commencement of any indemnifiable action or
claim promptly after any such person becomes aware of such commencement and
shall consult in good faith with the Company as to the conduct of the defense of
such action or claim (including the compromise or settlement thereof). No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 90 days prior written
notice of such removal, to become effective upon the later of (i) the 90th day
after delivery of the notice to the Depositary and (ii) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit
13
Agreement. The Depositary in its discretion may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement in writing between the
Company and the Depositary without the consent of Owners or Beneficial Owners in
any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding American Depositary Shares until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding American Depositary Shares. Every Owner and Beneficial Owner of
American Depositary Shares, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold such American Depositary Shares or any
interest therein, 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 Owner to surrender American Depositary Shares and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall, at any time at the direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all American Depositary Shares then outstanding at least 30 days prior
to the date fixed in such notice for such termination. The Depositary may
likewise terminate the Deposit Agreement by mailing notice of termination to the
Company and the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the date of termination, if at any time 90 days shall
have expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Article 19 hereof and
Section 5.04 of the Deposit Agreement. On and after the date of termination, the
Owner of American Depositary Shares will, upon (a) surrender of such American
Depositary Shares, (b) payment of the fee of the Depositary for the surrender of
American Depositary Shares referred to in Section 2.05, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by those
American Depositary Shares. If any American Depositary Shares shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of American Depositary Shares, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, upon surrender of American Depositary Shares (after deducting,
in each case, the fee of the Depositary for the
14
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it thereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
American Depositary Shares that have not theretofore been surrendered, such
Owners thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of the Deposit Agreement, and any applicable taxes or
governmental charges) and except as provided in Section 5.08 of the Deposit
Agreement. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary with respect to indemnification, charges, and
expenses.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM
(a) Notwithstanding the provisions of Section 2.04 of the Deposit
Agreement, the parties acknowledge that the Direct Registration System ("DRS")
and Profile Modification System ("Profile") shall apply to uncertificated
American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the
system administered by DTC pursuant to which the Depositary may register the
ownership of uncertificated American Depositary Shares, which ownership shall be
evidenced by periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC participant,
claiming to act on behalf of the Owner of uncertificated American Depositary
Shares, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such transfer.
(b) Upon issuance of American Depositary Shares in DRS, the American
Depositary Shares of each Owner will be registered in the name of each such
Owner. Each Owner will be given the option of (i) receiving a Receipt evidencing
its American Depositary Shares, (ii) transferring such American Depositary
Shares to a DTC participant designated by the Owner of such American Depositary
Shares (which designation shall be unanimous if there is more than one Owner of
the same American Depositary Shares), or (iii) maintaining its American
Depositary Shares in DRS. Interchanges of certificated and uncertificated
American Depositary Shares shall be effected pursuant to the terms of Section
2.04 of the Deposit Agreement.
(c) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise
15
ascertain that the DTC participant which is claiming to be acting on behalf of
an Owner in requesting registration of transfer and delivery described in
subsection (a) has the actual authority to act on behalf of the Owner. The
Company and each Owner agree that the Depositary shall have no liability for
relying upon the authority of and information in, nor for complying with
directions from, a DTC participant as set forth above. The Company shall
indemnify and hold harmless the Depositary from and against any liability,
expense, damage, loss and judgment arising from or related to the foregoing
(including reasonable attorneys fees and expenses and expenses arising from or
connected with the enforcement of this provision). For the avoidance of doubt,
(i) the Depositary shall be fully protected by the foregoing limitation of
liability and indemnification with respect to reliance upon and compliance with
instructions from the DTC participant even if the Depositary's reliance on, and
compliance with, such instructions is determined by a final, non-appealable
order or judgment of a court of competent jurisdiction to constitute negligence,
willful misconduct, breach of any duty owed by the Depositary to such Owner or
violation of any law and (ii) the forgoing shall not apply to the manner in
which the Depositary carries out actual transfer of the American Depositary
Shares which are the subject of the DTC participant's instruction, which
transfer shall continue to be governed by the other applicable terms of the
Deposit Agreement. By way of example and not by way of limitation, if a court of
competent jurisdiction determines that the transfer of American Depositary
Shares pursuant to a DTC participant's instruction without obtaining prior
authorization from the Owner constitutes negligence, the Depositary will
nevertheless be protected under this subparagraph (b); on the other hand, in
carrying out such instructions, if the Depositary transfers American Depositary
Shares from the wrong account or to the wrong DTC participant, the obligation to
indemnify the Depositary shall be determined in accordance with Sections 5.03
and 5.08 of the Deposit Agreement.
23. REQUIREMENTS FOR HOLDINGS EXCEEDING CERTAIN PERCENTAGES
Any Beneficial Owner, acting alone or in concert with others, that becomes
the holder, directly or indirectly, of more than certain percentages provided by
French law and regulations and by the statuts of the Company, as amended from
time to time, of Deposited Securities or voting rights of the Company, or that
increases or decreases its holding of Deposited Securities or voting rights
above or below any of those percentages, is required to notify, in compliance
with French law and regulations and with the statuts of the Company, as amended
from time to time, the Company and the French securities regulator (Autorite des
marches financiers) of the number of Deposited Securities and voting rights it
holds.
24. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners to provide information
(a) as to the capacity in which such Owners own or owned American Depositary
Shares, (b) regarding the identity of any other persons then or previously
interested in such American Depositary Shares and (c) regarding the nature of
such interest and various other matters pursuant to applicable law or the
Company's statuts or other such corporate document of the Company, all as if
such American Depositary Shares were to the extent practicable the underlying
Shares. Each Owner and Beneficial Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this Article 24. The
Depositary agrees to use reasonable efforts to comply
16
with written instructions received from the Company requesting that the
Depositary forward any such requests to Owners or to forward to the Company any
responses to such requests received by the Depositary.
17
