Exhibit (a)(ii)
EXECUTION COPY
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DEPOSIT AGREEMENT
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by and among
SUEZ
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of September 4, 2001
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS..................................................................1
Section 1.1 "Affiliate"....................................................1
Section 1.2 "ADS Record Date"..............................................1
Section 1.3 "ADR Form".....................................................1
Section 1.4 "American Depositary Receipt(s)", "ADR(s) " and
"Receipt(s)".................................1
Section 1.5 "American Depositary Share(s)" and "ADS(s)"....................2
Section 1.6 "Beneficial Owner".............................................2
Section 1.7 "Commission"...................................................2
Section 1.8 "Company"......................................................2
Section 1.9 "Custodian"....................................................2
Section 1.10 "Deliver" and "Delivery".......................................2
Section 1.11 "Deposit Agreement"............................................2
Section 1.12 "Depositary"...................................................2
Section 1.13 "Deposited Securities".........................................3
Section 1.14 "Dollars" and "$"..............................................3
Section 1.15 "DTC"..........................................................3
Section 1.16 "DTC Participant"..............................................3
Section 1.17 "Euroclear France".............................................3
Section 1.18 "Euros" and "(euro)"...........................................3
Section 1.19 "Exchange Act".................................................3
Section 1.20 "Foreign Currency".............................................3
Section 1.21 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)"
and "Full Entitlement Share(s)"................................3
Section 1.22 "Holder(s)"....................................................3
Section 1.23 "Partial Entitlement ADR(s)", "Partial Entitlement
ADS(s)" and "Partial Entitlement Share(s)".....................3
Section 1.24 "Pre-Release Transactions".....................................3
Section 1.25 "Principal Office".............................................4
Section 1.26 "Registrar"....................................................4
Section 1.27 "Restricted ADR(s)", "Restricted ADS(s)" and
"Restricted Share(s)"..........................................4
Section 1.28 "Restricted Securities"........................................4
Section 1.29 "Securities Act"...............................................4
Section 1.30 "Share Registrar"..............................................4
Section 1.31 "Shares".......................................................4
Section 1.32 "Statuts"......................................................5
Section 1.33 "United States" and "U.S.".....................................5
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Table of Contents
(continued)
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT
OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS........................................................5
Section 2.1 Appointment of Depositary......................................5
Section 2.2 Form and Transferability of ADRs...............................5
Section 2.3 Deposit with Custodian.........................................7
Section 2.4 Execution and Delivery of ADRs.................................8
Section 2.5 Transfer, Combination and Split-up of ADRs.....................9
Section 2.6 Surrender of ADSs and Withdrawal of Deposited Securities.......9
Section 2.7 Lost ADRs, etc.................................................9
Section 2.8 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records.........................................9
Section 2.9 Partial Entitlement ADSs......................................10
Section 2.10 Restricted ADS................................................10
ARTICLE III
CERTAIN DISCLOSURE AND REPORTING OBLIGATIONS................................12
Section 3.1 Disclosure and Reporting......................................12
ARTICLE IV
THE DEPOSITED SECURITIES....................................................12
Section 4.1 Distributions.................................................12
Section 4.2 Redemption....................................................12
Section 4.3 Conversion of Foreign Currency................................13
Section 4.4 Fixing of ADS Record Date.....................................13
Section 4.5 Voting of Deposited Securities................................14
Section 4.6 Changes Affecting Deposited Securities........................14
Section 4.7 Taxation......................................................14
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...............................15
Section 5.1 Maintenance of Office and Transfer Books by the
Registrar.....................................................15
Section 5.2 Custodian(s)..................................................16
Section 5.3 Notices and Reports...........................................17
Section 5.4 Issuance of Additional Shares, ADSs etc.......................17
Section 5.5 Indemnification...............................................18
Section 5.6 Fees and Charges of Depositary................................19
Section 5.7 Restricted Securities Owners..................................19
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Table of Contents
(continued)
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ARTICLE VI
RESIGNATION, REMOVAL, AMENDMENT AND TERMINATION.............................19
Section 6.1 Resignation and Removal of Depositary.........................19
Section 6.2 Amendment/Supplement..........................................20
Section 6.3 Termination...................................................20
ARTICLE VII
MISCELLANEOUS...............................................................20
Section 7.1 Counterparts..................................................20
Section 7.2 No Third-Party Beneficiaries..................................20
Section 7.3 Severability..................................................20
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect......20
Section 7.5 Notices.......................................................20
Section 7.6 Governing Law and Jurisdiction................................21
Section 7.7 Assignment....................................................22
Section 7.8 Compliance with U.S. Securities Laws..........................22
EXHIBITS
Form of ADR.
Fee Schedule.
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of September 4, 2001, by and among (i) Suez, a
societe anonyme organized under the laws of The Republic of France, and its
successors (the "Company"), (ii) CITIBANK, N.A., a national banking association
organized under the laws of the United States of America acting in its capacity
as depositary, and any successor depositary hereunder (the "Depositary"), and
(iii) all Holders and Beneficial Owners of American Depositary Shares evidenced
by American Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary, and the
Depositary is willing to act as Depositary for, an ADR facility, in each case
upon the terms of the Deposit Agreement; and
WHEREAS, the Shares are listed on Euronext Paris and the American
Depositary Shares to be issued pursuant to the terms of this Deposit Agreement
are listed for trading on The New York Stock Exchange, Inc.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to such term
by the Commission (as hereinafter defined) under Regulation C promulgated under
the Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.2 "ADS Record Date" shall have the meaning given to such
term in Section 4.4.
Section 1.3 "ADR Form" shall mean the form of American Depositary
Receipt attached hereto as Exhibit A, as the same may be amended from time to
time in accordance with the terms and conditions of the Deposit Agreement.
Section 1.4 "American Depositary Receipt(s)", "ADR(s) " and
"Receipt(s)" shall mean the certificate(s) issued by the Depositary to evidence
the American Depositary Shares issued under the terms of the Deposit Agreement,
as such ADRs may be amended from time to time in accordance with the provisions
of the Deposit Agreement. ADRs issued pursuant to the terms of the Deposit
Agreement shall be substantially in the form of the ADR Form, with appropriate
insertions, modifications and omissions, in each case as contemplated in the
Deposit Agreement or required by law. An ADR may evidence any number of ADSs and
may, in the case of ADSs held through a central depository such as DTC, be in
the form of a "Balance Certificate".
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Section 1.5 "American Depositary Share(s)" and "ADS(s)" shall mean
the rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement
and the ADRs issued hereunder to evidence such ADSs. Each ADS shall represent
one (1) Share until there shall occur a distribution upon Deposited Securities
referred to in Section 4.1 or a change in Deposited Securities referred to in
Section 4.6 with respect to which additional ADSs are not issued, and thereafter
each ADS shall represent the Deposited Securities determined in accordance with
the terms of such Sections.
Section 1.6 "Beneficial Owner" shall mean, as to any ADS, any person
or entity having a beneficial interest deriving from the ownership of such ADS.
A Beneficial Owner of ADSs may or may not be the Holder of the ADR(s) evidencing
such ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner.
Section 1.7 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
Section 1.8 "Company" shall mean Suez, a societe anonyme organized
and existing under the laws of The Republic of France, and its successors.
Section 1.9 "Custodian" shall mean, as of the date hereof, Credit
Agricole Indosuez, having its principal office at 92920 Paris, La Defense Cedex,
as custodian and agent of the Depositary for the purposes of the Deposit
Agreement, and any other entity that may be appointed by the Depositary, with
the consent of the Company, pursuant to the terms of Section 5.2 as successor,
substitute or additional custodian hereunder. The term "Custodian" shall mean
any Custodian individually or all Custodians collectively, as the context
requires.
Section 1.10 "Deliver" and "Delivery" shall mean, when used in
respect of ADSs, Deposited Securities and Shares, either (i) the physical
delivery of the certificate(s) representing such securities, or (ii) the
electronic delivery of such securities by means of book-entry transfer, if
available.
Section 1.11 "Deposit Agreement" shall mean the Deposit Agreement
and all exhibits hereto, as the same may from time to time be amended and
supplemented from time to time in accordance with the terms hereof. The terms
and conditions set forth in the ADR Form are incorporated by reference and shall
be deemed a part of the Deposit Agreement as if restated in their entirety in
the Deposit Agreement.
Section 1.12 "Depositary" shall mean Citibank, N.A., a national
banking association organized under the laws of the United States, in its
capacity as depositary under the terms of the Deposit Agreement, and any
successor depositary hereunder.
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Section 1.13 "Deposited Securities" shall mean validly issued and
outstanding and fully paid and non-assessable Shares at any time deposited under
the Deposit Agreement and any and all other securities, property and cash held
by the Depositary or the Custodian in respect thereof, subject, in the case of
cash, to the provisions of Section 4.4. The collateral delivered in connection
with Pre-Release Transactions shall not constitute Deposited Securities.
Section 1.14 "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.15 "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
Section 1.16 "DTC Participant" shall mean any financial institution
(or any nominee of such institution) having one or more participant accounts
with DTC for receiving, holding and delivering the securities and cash held in
DTC.
Section 1.17 "Euroclear France" shall mean Euroclear France, the
entity which provides the book-entry settlement system for equity securities in
The Republic of France, or any successor entity thereto.
Section 1.18 "Euros" and "(euro)" shall mean euros, the currency
introduced at the start of the third stage of the Economic and Monetary Union,
or EMU, pursuant to the Treaty establishing the European Economic Community, as
amended by the Treaty on European Union.
Section 1.19 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
Section 1.20 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.21 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)"
and "Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.9.
Section 1.22 "Holder(s)" shall mean the person(s) in whose name an
ADR is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the ADR registered
in its name, such person shall be deemed to have all requisite authority to act
on behalf of the Beneficial Owners of the ADSs evidenced by such ADR. Promptly
upon written request by the Company, the Depositary shall furnish to it a list
of the names, addresses and holdings of ADSs of all Holders.
Section 1.23 "Partial Entitlement ADR(s)", "Partial Entitlement
ADS(s)" and "Partial Entitlement Share(s)" shall have the respective meanings
set forth in Section 2.9.
Section 1.24 "Pre-Release Transaction(s)" shall have the meaning set
forth in paragraph (24) of the ADR Form.
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Section 1.25 "Principal Office" shall mean, when used with respect
to the Depositary, the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of the Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
Section 1.26 "Registrar" shall mean the Depositary or any bank or
trust company having an office in the Borough of Manhattan, the City of New
York, which shall be appointed by the Depositary to register issuances,
transfers and cancellations of ADRs as herein provided, and shall include any
co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary.
Section 1.27 "Restricted ADR(s)", "Restricted ADS(s)" and
"Restricted Share(s)" shall have the respective meanings set forth in Section
2.10.
Section 1.28 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by a senior
officer or director of the Company (or persons performing similar functions)
deemed an Affiliate under the U.S. securities laws or any other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, The Republic of France, or under a shareholder
agreement or the Statuts of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective resale
registration statement, or (b) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs are not, when held by such person(s), Restricted Securities.
Section 1.29 "Securities Act" shall mean the United States
Securities Act of 1933, as amended from time to time.
Section 1.30 "Share Registrar" shall mean Credit Agricole Indosuez
or any other institution organized under the laws of The Republic of France
appointed by the Company to carry out the duties of registrar for the Shares,
and any successor thereto.
Section 1.31 "Shares" shall mean the ordinary shares of the Company,
nominal value (euro)2 per share, validly issued and outstanding. Shares shall be
either (i) in bearer form (titres au porteur - i.e., shares registered in a
share account maintained by an accredited financial intermediary on behalf of
such holder, including the Custodian) or (ii) if the Holder of an ADR so
requests the Depositary in writing, in a registered form (titres nominatifs -
i.e., shares registered in the Company's share register maintained by the Share
Registrar as correspondant-teneur de comptes on behalf of the Company) and shall
include evidence of the right to receive Shares; provided that in no event shall
Shares include evidence of the right to receive Shares with respect to which the
full purchase price has not been paid or Shares as to which preemptive rights
have theretofore not been validly waived or exercised; provided further,
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however, that, if there shall occur any change in nominal value, split-up,
consolidation, reclassification, exchange, conversion or any other event
described in Section 4.6 in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the maximum extent permitted by law, represent the
successor securities resulting from such event.
Section 1.32 "Statuts"shall mean the "Statuts" of the Company, as
amended from time to time.
Section 1.33 "United States" and "U.S." shall have the meaning
assigned to it in Regulation S as promulgated by the Commission under the
Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 (a) Appointment of Depositary.
The Company hereby appoints the Depositary as depositary for the
Deposited Securities and hereby authorizes and directs the Depositary to
act in accordance with the terms and conditions set forth in the Deposit
Agreement and the applicable ADRs. Each Holder and each Beneficial Owner,
upon acceptance of any ADSs (or any interest therein) issued in accordance
with the terms and conditions of the Deposit Agreement shall be deemed for
all purposes to (a) be a party to and bound by the terms of the Deposit
Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in the Deposit Agreement and the
applicable ADR(s), to adopt any and all procedures necessary to comply
with applicable law and to take such action as the Depositary in
accordance with the Deposit Agreement in its sole discretion may deem
necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof.
(b) Incorporation by Reference of Terms of ADR Form. All of the
terms and conditions set forth in the ADR Form are hereby incorporated by
reference into, and made part of, the Deposit Agreement. The parties to
the Deposit Agreement shall be bound by, and subject to, the terms and
conditions of the ADR Form as if set forth herein in their entirety.
Section 2.2 Form and Transferability of ADRs.
(a) Form. ADSs shall be evidenced by definitive ADRs which shall be
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. ADRs may be issued under
the Deposit Agreement in denominations of any whole number of ADSs. ADRs
shall be (i) dated, (ii) signed by the manual or facsimile signature of a
duly authorized signatory of the Depositary, (iii) countersigned by the
manual or facsimile signature of a duly authorized signatory of the
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Registrar, and (iv) registered in the books maintained by the Registrar
for the registration of issuances and transfers of ADRs. No ADR and no ADS
evidenced thereby shall be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such ADR shall have been so dated,
signed, countersigned and registered ADRs bearing the facsimile signature
of a duly-authorized signatory of the Depositary or the Registrar, who at
the time of signature was a duly-authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary. The ADRs
shall bear a CUSIP number that is different from any CUSIP number that
was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company and which are not
ADRs issued hereunder. Title to the ADR(s) and the ADS(s) evidenced
thereby shall be transferable upon the terms of paragraph (11) of the ADR
Form.
(b) Legends. The ADRs may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the
provisions of the Deposit Agreement as (i) may be necessary to enable the
Depositary and the Company to perform their respective obligations
hereunder, (ii) may be required to comply with any applicable laws or
regulations, or with the rules and regulations of any securities exchange
or market upon which ADSs may be traded, listed or quoted, or to conform
with any usage with respect thereto, (iii) may be necessary to indicate
any special limitations or restrictions to which any particular ADRs or
ADSs are subject by reason of the date of issuance of the Deposited
Securities or otherwise, or (iv) may be required by any book-entry system
in which the ADSs are held. Holders and Beneficial Owners shall be deemed,
for all purposes, to have notice of, and to be bound by, the terms and
conditions of the legends set forth, in the case of Holders, on the ADR
registered in the name of the applicable Holders or, in the case of
Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the ADSs into DTC. A single ADR in the form of a
"Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co.") and
will provide that it represents the aggregate amount of ADSs from time to
time indicated in the records of the Depositary as being issued hereunder
and that the aggregate amount of ADSs represented thereby may from time to
time be increased or decreased by making adjustments on such records of
the Depositary and of DTC or its nominee as hereinafter provided. As such,
the nominee for DTC will be the only "Holder" of the ADR evidencing all
ADSs held through DTC. Citibank, N.A. (or such other entity as is
appointed by DTC or its nominee) may hold the "Balance Certificate" as
custodian for DTC. Each Beneficial Owner of ADSs held through DTC must
rely upon the procedures of DTC and the DTC Participants to exercise or be
entitled to any rights attributable to such ADSs. The DTC Participants
shall for all purposes be deemed to have all requisite power and authority
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to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given
to it by DTC Participants on behalf of Beneficial Owners of ADSs. So long
as ADSs are held through DTC or unless otherwise required by law,
ownership of beneficial interests in the ADR registered in the name of the
nominee for DTC will be shown on, and transfers of such ownership will be
effected only through, records maintained by (i) DTC or its nominee (with
respect to the interests of DTC Participants), or (ii) DTC Participants or
their nominees (with respect to the interests of clients of DTC
Participants).
Section 2.3 Deposit with Custodian. To the extent permitted by the
laws of the Republic of France and the Statuts of the Company, ADS(s) will
represent Shares issued in bearer form unless the Holder of an ADR (other than
DTC) notifies the Depositary in writing that it requests that the Shares
evidenced by such Holder's ADR(s) be held in registered form. Subject to the
terms and conditions of the Deposit Agreement and applicable law, Shares or
evidence of rights to receive Shares (other than Restricted Securities) may be
deposited by any person (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the Company, to
Section 5.4 hereof) at any time, (A) by (i) inscription in the name of the
Depositary, the Custodian (or their respective nominees), in a share account
maintained by the Company or the Share Registrar in the case of Shares in
registered form, or (ii) delivery (including by means of electronic transfer) 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 Share Registrar or the Custodian, as the case may be, (B)
delivery of such certifications and payments (including, without limitation, the
Depositary's fees and related charges) and evidence of such payments (including,
without limitation, stamping or otherwise marking such Shares by way of receipt)
as may be required by the Depositary or the Custodian in accordance with the
provisions of the Deposit Agreement and applicable law, (C) if the Depositary so
requires, delivery of a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person(s) stated in such order the
ADR(s) for the number of ADSs representing the Shares so deposited, (D) delivery
of evidence satisfactory to the Depositary that all conditions to such deposit
have been satisfied, and all necessary approvals have been obtained, by the
person depositing such Shares under the laws and regulations of France, and (E)
if the Depositary so requires, delivery of (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (other than as
contemplated in Section 2.10) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS(s)-to-Share(s) ratio would give rise to fractional
7
ADSs. The Depositary may enter into Pre-Release Transactions upon the terms and
conditions set forth in paragraph (24) of the ADR Form. In addition, the
Depositary may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished by the Company or any
such custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
The Company or its agent for registration and transfer of Shares in the
case of Shares in registered form, or the Custodian in the case of Shares in
bearer form, will, upon request by the Depositary, issue or cause to be issued
written confirmations as to holdings of Shares, it being agreed and understood
that such confirmations do not constitute documents of title.
Without limitation of the foregoing, the Depositary shall not, to the
actual knowledge of the Depositary, accept for deposit under the Deposit
Agreement any Shares or rights (i) required to be registered under the
provisions of the Securities Act, unless a registration statement is in effect
as to such Shares or the sale of such Shares are exempt from such provisions
(except as contemplated in Section 2.10), or (ii) the deposit of which would,
based on information provided to it by the Company, infringe any provisions of
the Company's Statuts. The Depositary shall comply with written instructions of
the Company not to accept for deposit 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 U.S. securities laws.
Section 2.4 Execution and Delivery of ADRs. The Depositary has made
arrangements with the Custodian to confirm to the Depositary that (i) a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a
nominee of either on the shareholders' register maintained by or on behalf of
the Company by the Share Registrar if registered Shares have been deposited or,
if deposit is made by book-entry transfer, confirmation of such transfer in the
books of Euroclear France, (iii) all required documents have been received, and
(iv) the person(s) to whom or upon whose order ADSs are deliverable in respect
thereof and the number of ADSs to be so delivered. Such notification may be made
by letter, cable, telex, SWIFT message or, at the risk and expense of the person
making the deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to the terms
and conditions of the Deposit Agreement and applicable law, shall issue the ADSs
representing the Shares so deposited to or upon the order of the person(s) named
in the notice delivered to the Depositary and shall execute and deliver at its
Principal Office Receipt(s) registered in the name(s) requested by such
person(s) and evidencing the aggregate number of ADSs to which such person(s)
are entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing ADSs and executing and delivering
such ADR(s) (as set forth in Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the ADR(s). The Depositary shall only issue ADSs in
whole numbers and deliver ADR(s) evidencing whole numbers of ADSs.
8
Section 2.5 Transfer, Combination and Split-up of ADRs. The
Depositary shall establish, or cause to be established, procedures to enable
Holders of ADRs to transfer, combine and/or split-up ADRs at designated transfer
offices upon the terms and conditions set forth in paragraphs (3) and (4) of the
ADR Form, unless otherwise agreed in writing by the Company and the Depositary
upon the terms and conditions contemplated in Section 2.10 of the Deposit
Agreement. The Depositary may, upon written consent of the Company, appoint one
or more co-transfer agents for the purpose of effecting transfers, combinations
and split-ups of ADRs upon such terms and conditions at 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 Holders or persons entitled to such ADRs and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary.
Section 2.6 Surrender of ADSs and Withdrawal of Deposited
Securities. The Depositary shall establish, or cause to be established,
procedures to enable Holders of ADSs to surrender the ADS(s) for the purpose of
cancellation of their ADS(s) and the withdrawal of the Shares evidenced by such
ADS(s) from the ADR facility created hereby upon the terms and conditions set
forth in Paragraph (2) of the ADR Form, unless otherwise agreed in writing by
the Company and the Depositary upon the terms and conditions contemplated in
Section 2.10 of the Deposit Agreement.
Section 2.7 Lost ADRs, etc. In case any ADR shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR
of like tenor at the expense of the Holder (a) in the case of a mutilated ADR,
in exchange of and substitution for such mutilated ADR upon cancellation
thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and
in substitution for such destroyed, lost, or stolen ADR, after the Holder
thereof (i) has submitted to the Depositary a written request for such exchange
and substitution before the Depositary has notice that the ADR has been acquired
by a bona fide purchaser, (ii) has provided such security or indemnity
(including an indemnity bond) as may be required by the Depositary to save it
and any of its agents harmless, and (iii) has satisfied any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction, loss or theft of such ADR,
the authenticity thereof and the Holder's ownership thereof.
Section 2.8 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records. All ADRs surrendered to the Depositary shall be canceled
by the Depositary. Canceled ADRs shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs in accordance with the
procedures generally followed by stock transfer agents located in New York City.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate).
9
Section 2.9 Partial Entitlement ADSs. In the event the Company
informs the Depositary that it intends to issue Shares which entitle the holders
thereof to receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit (the Shares then on deposit
collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares") and upon the Company's prior written
consent that such Partial Entitlement Shares may be deposited hereunder, the
Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares
separate and distinct from Full Entitlement Shares, and (ii) subject to the
terms of the Deposit Agreement, issue ADSs and deliver ADRs representing Partial
Entitlement Shares which are separate and distinct from the ADSs and ADRs
representing Full Entitlement Shares, by means of separate CUSIP numbering and
legending (if necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement
ADSs/ADRs", respectively). If and when Partial Entitlement Shares become Full
Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of
Partial Entitlement ADSs and give Holders of Partial Entitlement ADRs the
opportunity to exchange such Partial Entitlement ADRs for Full Entitlement ADRs,
(b) cause the Custodian to transfer the Partial Entitlement Shares into the
account of the Full Entitlement Shares, and (c) take such actions as are
necessary to remove the distinctions between (i) the Partial Entitlement ADRs
and ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs on the
other. Holders and Beneficial Owners of Partial Entitlement ADSs shall only be
entitled to the entitlements of Partial Entitlement Shares. Holders and
Beneficial Owners of Full Entitlement ADSs shall be entitled only to the
entitlements of Full Entitlement Shares. All provisions and conditions of the
Deposit Agreement shall apply to Partial Entitlement ADRs and ADSs to the same
extent as Full Entitlement ADRs and ADSs, except as contemplated by this Section
2.9. The Depositary is authorized to take any and all other actions as may be
necessary (including, without limitation, making the necessary notations on
ADRs) to give effect to the terms of this Section 2.9. The Company agrees to
give timely written notice to the Depositary if any Shares issued or to be
issued are Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
Section 2.10 Restricted ADS. The Depositary shall, at the request
and expense of the Company, establish procedures enabling the deposit hereunder
of Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to insure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
10
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by the Deposit Agreement and
(ii) an opinion of counsel satisfactory to the Depositary setting forth, inter
alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.10 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of the Deposit Agreement. In the event
that, in determining the rights and obligations of parties hereto with respect
to any Restricted ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.10) and (b) the terms of (i) this Section
2.10 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.10 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares are
no longer Restricted Securities, the Depositary, upon receipt of (x) an opinion
of counsel reasonably satisfactory to the Depositary setting forth, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) written instructions from the Company
to remove the restrictions applicable to the Restricted ADRs, the Restricted
ADSs and the Restricted Shares, shall thereupon (i) eliminate the distinctions
and separations between the applicable Restricted Shares held on deposit under
this Section 2.10 and the other Shares held on deposit under the terms of the
Deposit Agreement that are not Restricted Shares, (ii) treat the newly
unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the
other ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all
actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.10 between the applicable Restricted
ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and
ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other
hand, including, without limitation, by making the newly-unrestricted ADSs
eligible for Pre-Release Transactions and for inclusion in the applicable
book-entry settlement systems.
11
ARTICLE III
CERTAIN DISCLOSURE AND REPORTING OBLIGATIONS
Section 3.1 Disclosure and Reporting. The Depositary agrees to
forward to Holders, at the request and expense of the Company, any requests and
notices contemplated in paragraphs (5), (6), (7) and (9) of the ADR Form. The
Depositary agrees to accept at its Principal Office any notices and responses
received from Holders, Beneficial Owners or persons depositing Shares for
deposit or ADSs for cancellation upon the terms contemplated in paragraphs (5),
(6), (7) and (9) of the ADR Form and to forward such notices and responses to
the Company at the Company's expense. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners. If so instructed by
the Company, the Depositary shall, subject to applicable law and the Statuts of
the Company and at the Company's expense, take the actions contemplated in
paragraphs (6), (7) and (9) of the ADR Form.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Distributions. Whenever the general meeting of
shareholders has authorized any distributions, whether elective or mandatory, in
respect of any of the Deposited Securities, whether in the form of cash,
securities and other property, the Company shall give timely notice thereof to
the Depositary, which notice shall set forth the particulars of the proposed
distribution. Upon receipt of such notice from the Company, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether such distribution to Holders of ADSs is
lawful and reasonably practicable. In making such determination of legality, the
Depositary shall be authorized to rely upon the documentation provided to it by
the Company under the terms of Section 5.4. The Company shall, subject to
applicable law, cause such cash, securities or other property to be deposited
with the Custodian in accordance with the laws and practices of France, and the
Depositary shall, after making such determination with respect to ADSs
outstanding at such time, use reasonable efforts to take the actions and
establish the procedures contemplated in paragraph (14) of the ADR Form.
Section 4.2 Redemption. Whenever the Company, duly empowered to do
so by the appropriate general meeting of shareholders, if necessary, intends to
exercise any right of redemption in respect of any of the Deposited Securities,
the Company shall give timely notice thereof to the Depositary, which notice
shall set forth the particulars of the proposed redemption. Upon receipt of such
notice from the Company, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether the redemption of the corresponding ADSs is lawful and reasonably
practicable. In making such determination of legality, the Depositary shall be
authorized to rely upon the documentation provided to it by the Company under
the terms of Section 5.4. The Company shall, subject to applicable law, cause
12
the Deposited Securities to be redeemed in accordance with the laws and
practices of France, and the Depositary shall, after making such determination
with respect to the ADSs outstanding at such time, use reasonable efforts to
take the actions and establish the procedures contemplated in paragraph (15) of
the ADR Form.
Section 4.3 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, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any expenses of conversion into Dollars incurred by the Depositary as provided
in Section 5.6) in accordance with the terms of the applicable sections of the
Deposit Agreement. If the Depositary shall have distributed warrants or other
instruments that entitle the holders thereof to such Dollars, the Depositary
shall distribute such Dollars to the holders of such warrants and/or instruments
upon surrender thereof for cancellation, in either case without liability for
interest thereon. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
practicable or lawful, or if any approval or license of any governmental
authority or agency thereof that is required for such conversion, transfer and
distribution is denied or, in the opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
discretion, (i) make such conversion and distribution in Dollars to the Holders
for whom such conversion, transfer and distribution is lawful and practicable,
(ii) distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
Section 4.4 Fixing of ADS Record Date. The Company shall give timely
notice to the Depositary of (i) any distribution in respect of the Deposited
Securities (whether in cash, securities or other property), (ii) any meeting of,
or solicitation of consent or proxies of, holders of Deposited Securities, or
(iii) any other corporate action applicable to or affecting the Deposited
Securities, and, if applicable in France, the applicable record and/or effective
date, so as to enable the Depositary to establish a record date (the "ADS Record
Date") to determine the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights, to receive
such notice of meeting or solicitation or to otherwise take action as Holders of
ADSs with respect to such corporate action. The Depositary shall also be
authorized to establish an ADS Record Date when such action is necessary or
13
desirable in the administration of the ADR facility created under the terms of
the Deposit Agreement (i.e., in the event of a change of Share-to-ADS ratio).
The Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date/effective date for the
Deposited Securities (if any) set by the Company in France. Subject to
applicable law and the terms and conditions of the Deposit Agreement, only the
Holders of ADSs at the close of business in New York on such ADS Record Date
shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
Section 4.5 Voting of Deposited Securities. Whenever a meeting of
holders of Deposited Securities is called or the Company intends to solicit any
consent or proxies from holders of Deposited Securities, the Company shall give
timely notice thereof to the Depositary, which notice shall set forth the
particulars of the proposed meeting of holders of Deposited Securities or
solicitation of consents or proxies. Upon receipt of such notice from the
Company, the Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether the
solicitation of votes, consents or proxies from Holders of ADSs is lawful and
reasonably practicable. In making such determination of legality, the Depositary
shall be authorized to rely upon the documentation provided to it by the Company
under the terms of Section 5.4. Upon determining that such solicitation of
votes, consents and proxies from Holders of ADSs is lawful and reasonably
practicable, the Depositary shall use reasonable efforts to take the actions and
establish the procedures contemplated in paragraph (16) of the ADR Form.
Section 4.6 Changes Affecting Deposited Securities. To the extent
these events have an effect on the Deposited Securities as contemplated in
paragraph (17) of the ADR Form, the Company shall give timely notice to the
Depositary of any change in nominal or par value, split-up, cancellation,
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 and, in each case, the
particulars thereof. Upon receipt of such notice from the Company, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether and how such change,
split-up, cancellation, reorganization, merger, consolidation, or sale of assets
shall be legally and practicably implemented for the Holders of ADSs. In making
such determination of legality, the Depositary shall be authorized to rely upon
the documentation provided to it by the Company under the terms of Section 5.4.
The Depositary shall, after making such determination with respect to the ADSs
outstanding at such time, use reasonable efforts to take the actions and
establish the procedures contemplated in paragraph (17) of the ADR Form.
Section 4.7 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies.
In accordance with instructions from the Company, the Depositary or the
Custodian will take reasonable administrative actions to obtain tax refunds,
reduced withholding of tax at source on dividends and other benefits under
applicable tax treaties or laws with respect to dividends and other
distributions on the Deposited Securities.
14
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable.
In furtherance of its undertakings set forth in paragraph (7) of the ADR
Form, upon request of any U.S. resident Beneficial Owner who certifies to the
Depositary that it has not already applied for or received a tax refund from the
French Treasury or that such U.S. resident Beneficial Owner's application for
such a refund has been rejected, the Depositary will, as promptly as
practicable, provide a copy of French Treasury Form RF 1A EU--No. 5052
("Application for Refund"), or such other form as may be promulgated (or
otherwise accepted) from time to time by the French tax authorities for such
purpose, together with instructions to such Beneficial Owners and will, as
promptly as practicable, arrange for the filing with the French tax authorities
of all such forms completed by U.S. resident Beneficial Owners and returned in
sufficient time so they may be filed with the French tax authorities by December
31 of the year following the calendar year in which the related dividend or
other distributions are paid (or by any other date applicable under French law).
Upon receipt of any resulting remittance, the Depositary shall distribute to the
Holders entitled thereto, as soon as practicable, the proceeds thereof in
Dollars in accordance with Section 4.1. In addition, the Depositary will use
reasonable efforts to follow any procedures that may be established by the
French Treasury for eligible U.S. resident Beneficial Owners to be subject to a
reduced withholding tax rate, if available, at the time dividends or other
distributions are paid or avoir fiscal or precompte amounts are made available.
In connection therewith, the Depositary shall take reasonable steps to provide
eligible U.S. resident Holders and U.S. resident Beneficial Owners with such
forms as may be prescribed by the French Treasury and to take such other
reasonable steps as may be required to file such forms with the appropriate
French tax authorities.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the
Registrar. Until termination of the Deposit Agreement in accordance with its
terms, the Registrar shall maintain in the Borough of Manhattan, the City of New
York, an office and facilities for the execution and delivery, registration of
issuances, registration of transfers, combination and split-up of ADRs, and the
surrender of ADRs for the purpose of withdrawal of Deposited Securities in
accordance with the provisions of the Deposit Agreement.
15
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which during regular business hours in the city of New York
shall be open for inspection by the Company and by the Holders of such ADRs,
provided that such inspection shall not be, to the Registrar's knowledge, for
the purpose of communicating with Holders of such ADRs in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the ADRs.
The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any ADRs or the ADSs evidenced thereby are listed on one or more stock
exchanges or automated quotation systems in the United States, the Depositary
shall act as Registrar or with the written consent of the Company appoint a
Registrar or one or more co-registrars for registration of ADRs and transfers,
combinations and split-ups, and to countersign such ADRs in accordance with any
requirements of such exchanges or systems.
Section 5.2 Custodian(s). The Depositary has initially appointed
Banque Agricole Indosuez as Custodian for the purpose of the Deposit Agreement.
The Custodian or its successors in acting hereunder shall be subject at all
times and in all respects to the direction of the Depositary for the Deposited
Securities for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and the Company has not
appointed another Custodian hereunder, the Depositary shall promptly appoint a
substitute custodian that is authorized under the laws of The Republic of France
to act as Custodian. The Depositary shall require such resigning or discharged
Custodian to deliver the Deposited Securities held by it, together with all such
records maintained by it as Custodian with respect to such Deposited Securities
as the Depositary may request, to the Custodian designated by the Depositary.
Whenever the Depositary determines, in its discretion, that it is appropriate to
do so, it may, in each case, with the written consent of the Company, appoint an
additional custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADRs, each other Custodian and
the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. 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 to act
on the direction of such successor depositary.
16
Section 5.3 Notices and Reports. The Company undertakes to use its
reasonable efforts to give a preliminary notice to the Depositary as early as
practicable of any intended elective distributions, distributions of rights,
redemption of Deposited Securities and meeting of shareholders.
In addition, on or before the first date on which the Company gives
notice, by publication or otherwise, in France of any meeting of holders of
Shares or other Deposited Securities, or of the taking of any action in respect
of any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in the English language but otherwise in
the form given or to be given to holders of Shares or other Deposited
Securities.
The Company will also transmit to the Depositary (a) an English language
version of such notices, reports and communications which are required by the
rules of the Commission or any exchange in which the Deposited Securities are
listed to be made available to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual reports
prepared in accordance with the applicable requirements of the Commission. The
Depositary shall arrange, at the request of the Company and at the Company's
expense, to provide copies thereof to all Holders or make such notices, reports
and other communications available to all Holders on a basis similar to that for
holders of Shares or other Deposited Securities or on such other basis as the
Company may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADRs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
The Depositary, will instruct the Custodian to 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 Company or its agent may file any such reports
necessary to obtain benefits under the applicable tax treaties for the Holders.
Section 5.4 Issuance of Additional Shares, ADSs etc. The Company
agrees that in the event it or any of its Affiliates proposes or has been
authorized to make (i) an issuance, sale or distribution of additional Shares,
(ii) an offering of rights to subscribe for Shares or other Deposited
Securities, (iii) an issuance of securities convertible into or exchangeable for
Shares, (iv) an issuance of rights to subscribe for securities convertible into
or exchangeable for Shares, (v) an elective distribution of cash or Shares, (vi)
a redemption of Deposited Securities, (vii) a meeting of holders of Deposited
Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger or consolidation or transfer of assets,
or (viii) any reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets which affects the Deposited Securities, it will
take all steps reasonably necessary to ensure that the application of the
proposed transaction to Holders and Beneficial Owners does not violate any
applicable laws of the United States. In support of the foregoing, the Company
will furnish to the Depositary at the request of the Depositary (a) a written
opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating
whether or not application of such transaction to Holders and Beneficial Owners
(1) requires a registration statement under the Securities Act to be in effect
17
or (2) is exempt from the registration requirements of the Securities Act and
(b) an opinion of French counsel, which may be internal counsel of the Company,
stating that (1) making the transaction available to Holders and Beneficial
Owners does not violate the laws or regulations of The Republic of France and
(2) all requisite regulatory consents and approvals have been obtained in The
Republic of France. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in the Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a
sale of Shares or other Deposited Securities previously issued and reacquired by
the Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in the Deposit Agreement, nothing
in the Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.5 Indemnification. The Company agrees to indemnify the
Depositary and its officers or directors against, and hold each of them harmless
from, any liability or expense (including reasonable fees and expenses of
counsel) which may arise (a) out of acts performed or omitted, in accordance
with the provisions of this Deposit Agreement and of the Receipts, as the same
may be amended, modified or supplemented from time to time, (i) by the
Depositary, except for any liability or expense arising out of the negligence or
bad faith, or (ii) by the Company or any of its agents, or (b) out of or in
connection with any offer or sale of Receipts, American Depositary Shares,
Shares or other Deposited Securities or any registration statement under the
Securities Act of 1933 in respect thereof, except to the extent such loss,
liability or expense is due to information (or omissions from such information)
relating to such indemnified person, furnished in writing to the Company by such
indemnified person expressly for use in a registration statement under the
Securities Act of 1933.
The Depositary agrees to indemnify the Company and its directors and
officers and hold them harmless from any liability or expense (including
reasonable fees and expenses of counsel) incurred by them which may arise out of
acts performed or omitted by the Depositary due to the negligence or bad faith
of the Depositary.
18
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of a commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.5) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld. The
obligations set forth in this Section 5.5 shall survive termination of the
Deposit Agreement and the succession or substitution of any party hereto.
Section 5.6 Fees and Charges of Depositary. The fees and charges of
the Depositary payable by Holders, Beneficial Owners, persons depositing Shares
or surrendering ADSs for cancellation are set forth in paragraph (10) of the ADR
Form.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such fees and charges may at any time and from
time to time be changed by agreement in writing between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its statement
for such expenses and fees or charges to the Company once every three months.
The charges and expenses of the Custodian are for the sole account of the
Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
Section 5.7 Restricted Securities Owners. From time to time the
Company shall compile a list setting forth, to the actual knowledge of the
Company, those persons or entities who, to the actual knowledge of the Company,
hold Restricted Securities. The Company agrees to advise in writing each of the
persons, or entities so listed, that such Restricted Securities are ineligible
for deposit hereunder (except under the circumstances contemplated in Section
2.10).
ARTICLE VI
RESIGNATION, REMOVAL, AMENDMENT
AND TERMINATION
Section 6.1 Resignation and Removal of Depositary. The Depositary
may resign or be removed upon the terms and conditions set forth in paragraph
(20) of the ADR Form.
19
Section 6.2 Amendment/Supplement. The Deposit Agreement, including,
without limitation, the ADR Form, and the ADRs outstanding at any time may be
amended and supplemented upon the terms and conditions set forth in paragraph
(21) of the ADR Form.
Section 6.3 Termination. The Deposit Agreement and the ADR facility
created thereunder may be terminated upon the terms and conditions set forth in
paragraph (22) of the ADR Form.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. The Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of the Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is
for the exclusive benefit of the parties hereto (and their successors) and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person, except to the extent specifically set forth in the Deposit
Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in the Deposit Agreement or in the ADRs should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding
Effect. The Holders and Beneficial Owners from time to time of ADSs shall be
parties to the Deposit Agreement and shall be bound by all of the terms and
conditions of the Deposit Agreement, including, without limitation, the ADR
Form, and of any ADR evidencing such Holders' and Beneficial Owner's ADS(s) by
acceptance of ADS(s) or any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be in English and shall be deemed to have been duly given if personally
delivered or sent by mail, air courier or cable, telex or facsimile
20
transmission, confirmed by letter personally delivered or sent by mail or air
courier, addressed to Suez, 00, xxx xx xx Xxxxx l' Eveque, 00000 Xxxxx, Xxxxxx,
Attention: Company Secretary, Fax Number: 00000000000000, or to any other
address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be in English and
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary
Receipts Department, Fax Number: (000) 000-0000), or to any other address which
the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail addressed to such Holder
at the address of such Holder as it appears on the books of the Depositary or,
if such Holder shall have filed with the Depositary a request that notices
intended for such Holder be mailed to some other address, at the address
specified in such request, or (b) if a Holder shall have designated such means
of notification as an acceptable means of notification under the terms of the
Deposit Agreement, by means of electronic messaging addressed for delivery to
the e-mail address designated by the Holder for such purpose. Notice to Holders
shall be deemed to be notice to Beneficial Owners for all purposes of the
Deposit Agreement. Failure to notify a Holder or any defect in the notification
to a Holder shall not affect the sufficiency of notification to other Holders or
to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective 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 or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement
and the ADRs shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in the Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, the
rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and
other Deposited Securities, as such, shall be governed by the laws of The
Republic of France (or, if applicable, such other laws as may govern the
Deposited Securities).
21
The Company and the Depositary agree that the federal or state courts in
the City of New York shall have non-exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute between them that may
arise out of or in connection with this Deposit Agreement and, for such
purposes, each irrevocably submits to the non-exclusive jurisdiction of such
courts. The Company hereby irrevocably designates, appoints and empowers Nalco
Chemical Corp. (the "Agent") now at Xxx Xxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000,
Attn. Xxxxxxx Xxxxxx as its authorized agent to receive and accept for and on
its behalf, and on behalf of its properties, assets and revenues, service by
mail of any and all legal process, summons, notices and documents that may be
served in any suit, action or proceeding brought against the Company in any
federal or state court as described in the preceding sentence. If for any reason
the Agent shall cease to be available to act as such, the Company agrees to
designate a new agent in New York on the terms and for the purposes of this
Section 7.6 reasonably satisfactory to the Depositary. The Company further
hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to be
ineffective or such Agent shall fail to accept or acknowledge such service),
with a copy mailed to the Company by registered or certified air mail, postage
prepaid, to its address provided in Section 7.5 hereof. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of sovereign
immunity from legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, from execution of
judgment, or from any other legal process or proceeding for the giving of any
relief or for the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any jurisdiction, in each
case with respect to any matter arising out of, or in connection with, the
Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 6.1
hereof, the Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
22
IN WITNESS WHEREOF, SUEZ and CITIBANK, N.A. have duly executed the Deposit
Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of ADSs
evidenced by ADRs issued in accordance with the terms hereof, or upon
acquisition of any beneficial interest therein.
SUEZ
By:_______________________________
Name:
Title:
CITIBANK, N.A.
By:_______________________________
Name:
Title:
23
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: 000000000
_____________
American Depositary Shares (each
American Depositary Share
representing one (1) Ordinary
Share of the Company, nominal
value (euro)2 per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
SUEZ
(Incorporated under the laws of The Republic of France)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited Ordinary
Shares, nominal value (euro)2 per share, including evidence of rights to receive
such Ordinary Shares (the "Shares"), of Suez, a societe anonyme organized under
the laws of The Republic of France (the "Company"). As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents One (1) Share
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Credit Agricole Indosuez (the
"Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment as provided
in the Deposit Agreement. The Depositary's Principal Office is located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue of American Depositary Receipts ("ADRs"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of September 4, 2001 (as amended and supplemented from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary, and all Holders
and Beneficial Owners from time to time of ADSs evidenced by ADRs issued
A-1
thereunder. The Deposit Agreement sets forth the rights and obligations of
Holders and Beneficial Owners of ADRs 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 Principal Office of the Depositary and with the Custodian. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement and
the applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are incorporated
by reference and made part of the Deposit Agreement. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial
Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such
ADSs.
ADSs will represent Shares in bearer form unless the Holder of an ADR
(other than DTC) notifies the Depositary in writing that it requests that the
Shares evidenced by such Holder's ADRs be held in registered form. The Company
or its agent for registration and transfer of Shares in the case of Shares in
registered form, or the Custodian in the case of Shares in bearer form, will,
upon request by the Depositary, issue or cause to be issued written
confirmations as to holdings of Shares, it being agreed and understood that such
confirmations do not constitute documents of title.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and
of the ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, this ADR has been
properly endorsed in blank or is accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary (as
A-2
are set forth in paragraph (10) hereof) and all applicable taxes and
governmental charges have been paid, subject, however, in each case, to the
terms and conditions of this ADR, of the Deposit Agreement, of the Company's
Statuts, of any applicable laws and the rules of Euroclear France, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Statuts of the Company,
of any applicable laws and the rules of the Euroclear France, and to the terms
and conditions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs represented by this ADR, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
A-3
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary (as are set forth in paragraph (10) hereof) and all applicable
taxes and governmental charges have been paid, subject, however, in each case,
to the terms and conditions of this ADR, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in paragraph (10) hereof) have been paid, subject, however, in
each case, to the terms and conditions of this ADR, of the Deposit Agreement and
of applicable law, in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR 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 and charges of the
Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADRs in particular
instances may be refused, or the registration of transfer of ADRs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
A-4
government or governmental body or commission or any securities exchange upon
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (23) hereof.
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company 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, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the ADRs
or to the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company,
the Custodian and/or the Depositary pursuant to applicable French law, the rules
and requirements of any stock exchange on which Shares or ADSs are, or may be,
registered, traded or listed, or the Statuts of the Company, which are made to
provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares, as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request.
(6) Ownership Restrictions; Disclosure of Interests. Notwithstanding
any provision of this ADR or the Deposit Agreement, the Company may restrict
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Statuts of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
ADSs where such transfer may result in the total number of Shares represented by
the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits.
The Company may, in its sole discretion but subject to applicable law, instruct
the Depositary to take action with respect to the ownership interest of any
Holder or Beneficial Owner in excess of the limits set forth in the preceding
sentence, including but not limited to, the imposition of restrictions on the
transfer of ADSs, the removal or limitation of voting rights or a mandatory sale
or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the ADSs held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable law and the Statuts of the Company.
Notwithstanding any other provision of the Deposit Agreement, each Holder
and Beneficial Owner agrees, and the Depositary agrees, to comply with the
Company's Statuts, as they may be amended from time to time, and the laws of The
Republic of France with respect to the disclosure requirements regarding
ownership of Shares, all as if the ADS(s) were the Shares represented thereby.
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In order to facilitate compliance with the notification requirements, an
Owner or Beneficial Owner may deliver any notification to the Depositary and the
Company with respect to Shares represented by American Depositary Shares, and
the Company shall, as soon as practicable, forward such notification if
applicable, to the Conseil des Marches Financiers or any other authorities in
The Republic of France.
In the event that a Holder or Beneficial Owner fails to comply with the
requirements set forth in the preceding paragraph, such Holder or Beneficial
Owner shall not be permitted, in accordance with, and subject to limitations
provided under French law, to exercise voting rights with respect to any Shares
or securities representing Shares exceeding the above-referenced thresholds as
to which any required disclosure (as set forth in the preceding paragraph) has
not been made until the end of a two-year (2) period following the date on which
such Holder or Beneficial Owner has complied with such disclosure requirement.
In addition, a French court may, under certain circumstances, eliminate all or
part of the voting rights of such Holder or Beneficial Owner for a period not to
exceed five (5) years, and such Holder or Beneficial Owner may be subject to
criminal penalties.
(7) Liability of Holder for Taxes and Other Charges. Any tax or
other governmental charge payable with respect to any ADR or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or Depositary may (and, upon
instructions from the Company, the Custodian and/or Depositary shall) withhold
or deduct the amount of any tax or other governmental charge from any
distributions made in respect of Deposited Securities and sell for the account
of a Holder and/or Beneficial Owner any or all of the Deposited Securities and
apply such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. In the event that the Company,
the Depositary or the Custodian shall be required to withhold and does withhold
from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the applicable
Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. 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 charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.
The Custodian may refuse the deposit of Shares and the Depositary may
refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to paragraph (23) hereof) the withdrawal of
Deposited Securities until payment in full of the related tax, charge, penalty
or interest is received. The Depositary is under no obligation to provide the
Holders and Beneficial Owners with any information about the tax status of the
Company. The Depositary shall not incur any liability for any tax consequences
that may be incurred by Holders and Beneficial Owners on account of their
ownership of the ADSs, including without limitation, tax consequences resulting
from the Company (or any of its subsidiaries) being treated as a "Foreign
Personal Holding Company," or as a "Passive Foreign Investment Company" (in each
case as defined in the U.S. Internal Revenue Code and the regulations issued
thereunder) or otherwise.
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The Depositary shall take reasonable steps to provide eligible U.S.
resident Holders and Beneficial Owners with such forms as may be prescribed by
the French Treasury and to take such other reasonable steps as may be required
to file such forms with the appropriate French tax authorities in order to
benefit from a reduced withholding tax rate, if available, at the time dividends
or other distributions are paid or avoir fiscal or precompte amounts are made
available. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. As a
condition to receiving such benefits, Holders and Beneficial Owners of ADSs may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Company, the Depositary or the
Custodian may deem necessary or proper to fulfill the Company's, the
Depositary's or the Custodian's obligations under applicable law. Neither the
Company, the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability.
The Depositary agrees to use reasonable efforts to follow the procedures
established by the French Treasury to enable U.S. resident Beneficial Owners
eligible to recover any excess French withholding taxes initially withheld or
deducted with respect to dividends and other distributions of the Company to
such Beneficial Owners, and to receive any payment in respect of the "avoir
fiscal" or any "precompte" for which such Beneficial Owners may be eligible from
French Treasury. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit (including, without limitation, any tax refund or
reduced rate of withholding) obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, (v) the Shares presented for deposit are not, and the ADSs
issuable upon deposit will not be, Restricted Securities (except as contemplated
in Section 2.10 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
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(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement and this ADR. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any ADR or the distribution or sale of any dividend or other
distribution of rights or of the proceeds thereof or, to the extent not limited
by paragraph (23) hereof, the delivery of any Deposited Securities until such
proof or other information is filed or such certifications are executed, or such
representations are made or such information and documentation are provided, in
each case to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the
following fees for the services performed under the terms of the Deposit
Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) so issued under the terms of the Deposit Agreement
(excluding issuances pursuant to paragraphs (iii) and (v) below);
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) so surrendered;
(iii) No fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other free
distributions of stock) so long as the charging of such fee is
prohibited by the exchange upon which the ADSs are listed. If
charging of such fees is not prohibited, the fees payable are to be
agreed upon by the Company and the Depositary, notice of which will
be given to the Holders upon the terms of paragraph (21) hereof;
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of cash
proceeds (i.e., upon the sale of rights and other entitlements); and
A-8
(v) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise of rights
to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing or withdrawing Shares or
Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (21) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every
successive Holder of this ADR by accepting or holding the same consents and
agrees, that title to this ADR (and to each ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that this ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
A-9
liability under the Deposit Agreement or this ADR to any holder of this ADR or
any Beneficial Owner unless such holder is the Holder of this ADR registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this ADR has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly-authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly-authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of ADRs. ADRs bearing
the facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books.
The Company is subject to the periodic reporting requirements of the Exchange
Act and accordingly files certain information with the Commission. These reports
and documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them 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 provide to holders copies of such reports and
communications provided to it by the Company under the terms of the Deposit
Agreement for distribution to Holders.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which during regular business hours shall be open for
inspection by the Company and by the Holders of such ADRs, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such ADRs in the interest of a business or object
other than the business of the Company or other than a matter related to the
Deposit Agreement or the ADRs.
The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(23) hereof.
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Dated:
CITIBANK, N.A., CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By: ________________________________ By: _________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-11
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Corporate Actions. (a) Cash Distributions. Upon receipt of
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution in respect any Deposited Securities, or upon receipt of
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in the Deposit Agreement, and (iii) distribute promptly the
amount thus received (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the Holders entitled
thereto as of the ADS Record Date in proportion to the number of ADSs held as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs then
outstanding at the time of the next distribution. If the Company, the Custodian
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, duties or other governmental charges, the amount
distributed to Holders shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
(b)______ Share Distributions. Upon receipt of confirmation from the
Custodian of a deposit of Shares by the Company in respect of a dividend in or
free distribution of Shares, the Depositary shall, subject to and in accordance
with the terms of the Deposit Agreement, establish the ADS Record Date and,
after making the determination contemplated in Section 4.1 of the Deposit
Agreement either (i) the Depositary shall distribute to the Holders as of the
ADS Record Date in proportion to the number of ADSs held as of the ADS Record
Date, additional ADSs, which represent in aggregate the number of Shares
received as such dividend, or free distribution, subject to the terms of the
Deposit Agreement (including, without limitation, (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares or ADSs, as the case may be, represented by the aggregate of
such fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
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In the event that the Depositary has not received satisfactory assurances
from Company's U.S. counsel that any such distribution does not require
registration under the Securities Act or is exempt from registration under the
Securities Act, the Depositary may withhold any distribution under this
paragraph (14), and the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable and the Depositary shall distribute the net proceeds
of any such sale (after deduction of (a) taxes and (b) fees and charges of, and
the expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms of the Deposit Agreement. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
(c)______Elective Distributions. If the Depositary shall have received
from the Company timely notification of a proposed elective distribution with
respect to the Deposited Securities and the Depositary shall have determined,
upon the terms and conditions of the Deposit Agreement, that making such
elective distribution available to Holders of ADSs is lawful and reasonably
practicable, the Depositary shall, subject to the terms and conditions of the
Deposit Agreement, establish (i) the ADS Record Date (upon the terms established
in the Deposit Agreement) and (ii) procedures to enable the Holders to elect to
receive the proposed distribution in cash or in additional ADSs. If a Holder
elects to receive the distribution in cash, the distribution shall be made as in
the case of a distribution in cash under the terms of the Deposit Agreement. If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon the
terms of Deposit Agreement. If such elective distribution is not lawful or
reasonably practicable or if the Depositary did not receive satisfactory
documentation set forth in the Deposit Agreement, the Depositary shall, to the
extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in The Republic of France in respect of the Shares for
which no election is made, either (x) cash or (y) additional ADSs representing
such additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares. The
Depositary shall not be responsible for any failure to determine that it may be
lawful or practicable to make such distribution available to Holders of ADSs in
general or any Holders of ADSs in particular.
(d)______Rights to Purchase Shares. If the Depositary shall have received
from the Company timely notification of a proposed distribution to holders of
Deposited Securities of rights to acquire additional Deposited Securities and
the Depositary shall have determined, upon the terms and conditions of the
Deposit Agreement, that the distribution of such rights to Holders of ADSs is
lawful and reasonably practicable, the Depositary shall establish (i) the ADS
Record Date (upon the terms described in the Deposit Agreement) and (ii)
procedures (x) to distribute to Holders, as of the ADS Record Date, rights to
purchase additional ADSs (by means of warrants or otherwise), (y) to enable the
Holders to exercise the rights (upon payment of the subscription price and of
the applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or if the Company requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive the
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documentation contemplated by the Deposit Agreement or determines it is not
lawful or reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity, at such place
and upon such terms (including public and private sale) as it may deem
practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described above,
the Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale or exercise, or (iii) the content of any materials forwarded to
the ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, to
the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. If the rights are
not issued in France in a negotiable form, a liquid market for rights may not
exist, and this may adversely affect (1) the ability of the Depositary to
dispose of such rights or (2) the amount the Depositary would realize upon
disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
(e) Distributions other than Cash, Shares or Rights to Purchase Shares. If
the Depositary shall have received from the Company timely notice of a
distribution or the making available of property other than cash, Shares or
rights to purchase additional Shares and the Depositary shall have determined,
in accordance with the terms of the Deposit Agreement, that the distribution of
such property to Holders of ADSs is lawful and reasonably practicable, the
Depositary shall establish, to the extent applicable, and upon the terms of the
Deposit Agreement, the ADS Record Date and distribute the property so received
to the Holders of record, as of the ADS Record Date, in proportion to the number
A-14
of ADSs held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If (a) the Company shall not have timely requested the distribution of
such property to Holders of ADSs or shall have requested that such property not
be distributed to Holders of ADSs, (b) the Depositary fails to receive the
documentation contemplated by the Deposit Agreement or determines that it is not
lawful or reasonably practicable to distribute such property to Holders of ADSs,
the Depositary shall, after consultation with the Company, sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem practicable and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary,
after consultation with the Company, may dispose of such property for the
account of the Holders in any way it deems reasonably practicable under the
circumstances.
(15) Redemption. If the Depositary shall have received from the
Company timely notice of a proposed redemption of Deposited Securities and the
Depositary shall have determined, in accordance with the terms of the Deposit
Agreement, that the redemption of the corresponding ADSs is lawful and
reasonably practicable, the Depositary shall (to the extent practicable) provide
to each Holder a notice setting forth the Company's intention to exercise the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. Upon receipt of confirmation that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, distribute the proceeds (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary, and (b)
taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof upon the terms of the Deposit Agreement. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio)
upon the redemption of the Deposited Securities represented by ADSs (subject to
the terms of the Deposit Agreement and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes).
(16) Voting of Deposited Securities. Upon receipt from the Company
of notice of any meeting of holders of Deposited Securities at least thirty (30)
days prior to the date of the meeting, if so requested in writing by the Company
in a timely manner and provided no U.S. legal prohibitions exist, the Depositary
shall, as soon as practicable thereafter, establish the ADS Record Date and
distribute to the Holders as of the ADS Record Date (a) a summary in English or
an English version of the notice of such meeting received from the Company, (b)
A-15
a statement in a form provided or agreed to by the Company that the Holders as
of the close of business on the ADS Record Date will be entitled, subject to the
terms of the Deposit Agreement and any applicable provisions of French law, the
Company's Statuts and the Deposited Securities (which provisions, if any, shall
be summarized in pertinent part in such statement), to instruct the Depositary
to exercise the voting rights pertaining to the Deposited Securities (subject to
the restrictions detailed below) on or before the response date established by
the Depositary for such purposes and specified in the notice to Holders (the
"Response Date"), and (c) any other documents in English provided by the Company
for the purpose of enabling such Holders to exercise the voting rights of the
Deposited Securities.
In accordance with French law and the Company's Statuts, a precondition
for exercising any voting right is that, in the case of a holder of Shares in
registered form, such holder be registered in the share register of the Company
at least one (1) calendar day prior to the date of the shareholders' meeting
and, in the case of a holder of Shares in bearer form, such holder shall request
its accredited financial intermediary in France to issue, at least on (1)
calendar day prior to the date of the meeting, a certificat d'immobilisation de
titres au porteur evidencing the immobilization of its Shares until the time
fixed for the meeting. In accordance with French law and the Company's Statuts,
the Board of Directors of the Company may either reduce or cancel such
registration or immobilization period. In such event, the Company shall notify
the Depositary of such change and of the new applicable period, if any, and all
references in the Deposit Agreement and this ADR to the previously applicable
registration or immobilization periods shall be deemed to refer to the new
periods, insofar as practicable. The Depositary may require that the transfer of
ADSs be restricted for a period in excess of the French registration or
immobilization periods in order to enable the Depositary to comply with French
law and the Company's Statuts. According to French law, the Custodian may act as
"intermediaire inscrit" after registering as such with the Company. As
"intermediaire inscrit", the Custodian may hold collective or individual
accounts in the name of shareholders and may vote at shareholders' meetings on
behalf of shareholders according to the instructions received from their
clients. In order for those votes to be valid, the Custodian has (a) to be
inscribed as "intermediaire inscrit" on the books of the Company, and (b) if so
requested by the Company, to have provided a list of the names of a beneficial
owners ("proprietaires") of the Shares for whom the votes are to be cast. If the
information requested in (b) above is not provided, or not provided correctly,
the right to vote pertaining to and payment of the dividend on those Shares will
be automatically suspended until full and correct information is provided. The
Depositary shall instruct the Custodian to exercise the right to vote that
attaches to the Deposited Securities only in accordance with the instructions of
the Holders. According to French law, voting rights may not be exercised in
respect of fractional shares.
As a precondition for exercising any voting rights, any persons holding
ADS(s) who are not the Holders of the ADR(s) registered in name on the books of
the Depositary evidencing such ADS(s) (e.g., persons holding their ADS(s)
through DTC) must (a) arrange for the immobilization of their ADSs in DTC
("Blocking") for the period fixed by the Depositary after consultation with the
Company (the "Blocking Period"), and (b) provide identity information required
by French law to the Depositary (i.e., full name, address, social security
number etc.), in each case, in the manner designated by the Depositary. Holders
of ADR(s) registered in name on the books of the Depositary (other than DTC)
will, as a precondition for exercising voting rights, be required to irrevocably
A-16
instruct the Depositary not to transfer the ADR(s) (and not to cancel such
ADR(s) upon receipt of cancellation and withdrawal instructions) evidencing the
ADSs in respect of which voting instructions have been given ("Stop Transfer
Instructions"). The Depositary shall, upon receipt of such Stop Transfer
Instructions, refuse to transfer the ADR(s) (and cancel ADR(s) upon receipt of
cancellation and withdrawal instructions) indicated in such Stop Transfer
Instructions, during the Blocking Period. Only Holders of ADR(s) who have
requested that the Shares evidenced by such ADR(s) be converted to registered
Shares and who have held such ADR(s) for at least two (2) consecutive years will
be entitled to double voting rights. Holders of ADSs representing Shares in
bearer form will not be entitled to double voting rights.
Upon timely receipt by the Depositary of a (i) properly completed voting
instructions in the manner specified by the Depositary including, if so
requested, all requisite identity information, and (ii) either confirmation of
Blocking or valid Stop Transfer Instructions, in each case, on or before the
Response Date, the Depositary shall endeavor, insofar as practicable and
permitted under any applicable provisions of French law, the Company's Statuts
and the Deposited Securities, to cause the Custodian to vote the Deposited
Securities in accordance with the voting instructions of ADS holders. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Deposited Securities other than in accordance with such instructions. The
Depositary shall not honor any voting instructions except with respect to, and
only to the extent of, the number of ADS either (a) timely received timely for
Blocking or (b) for which it has received Stop Transfer Instructions.
Under French company law, shareholders at ordinary and extraordinary
shareholders' meetings may modify the resolutions presented to the shareholders
for their approval by the Board of Directors. In such case, Holders who have
given prior instructions to vote on such resolutions shall be deemed to have
voted against the revised resolutions; provided, however, that in the event such
revised resolutions are approved by the Board of Directors of the Company during
a suspension of the shareholders' meeting, Holders of ADSs who have validly
provided voting instructions shall be deemed to have instructed a vote in favor
of such revised resolutions approved by the Board of Directors.
The Depositary will not charge any fees in connection with the foregoing
transactions to enable any Holder to exercise its voting rights under this
paragraph (16).
Subject to paragraph (16), the Depositary and the Company and their
respective directors, employees, agents and controlling persons (as defined in
the Securities Act of 1933) assume no obligation nor shall they be subject to
any liability under the Deposit Agreement or this ADR to any Holder or any other
person with respect to any action by any Holder in respect of the voting of any
Deposited Securities.
Holders of American Depositary Shares who wish to attend any meeting of
the Company's shareholders in person will need to make separate arrangements
therefor with the Depositary and the Company.
A-17
Notwithstanding anything in the Deposit Agreement to the contrary, the
Depositary and the Company may modify or amend the above voting procedures or
adopt additional voting procedures from time to time as they determine may be
necessary or appropriate to comply with French or United States law or the
Statuts of the Company. Notwithstanding anything else contained in the Deposit
Agreement or any ADR, the Depositary shall not have any obligation to take any
action with respect to any meeting, or solicitation of consents or proxies, of
holders of Deposited Securities if the taking of such action would violate U.S.
laws.
(17) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, 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, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional ADRs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of satisfactory
legal documentation contemplated in the Deposit Agreement, sell such securities
at public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or practicable to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(18) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, The Republic of France or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or on account
of possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Statuts of the Company or any provision of
or governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
A-18
in the Deposit Agreement or in the Statuts of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
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 Holders of ADSs or
(v) for any consequential or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement or this ADR.
(19) Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under the Deposit Agreement
or this ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of the Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(20) Resignation and Removal of the Depositary. The Depositary may
at any time resign as Depositary under the Deposit Agreement by written notice
of resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 90th day after delivery thereof to the Company, or (ii) upon
the appointment of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time be removed
by the Company by written notice of such removal, which removal shall be
effective on the earlier of (i) the 60th day after delivery thereof to the
Depositary, or (ii) upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. In case at
any time the Depositary acting hereunder shall resign or be removed, the Company
shall use reasonable efforts to appoint a successor depositary, which shall be a
bank or trust company having an office in the Borough of Manhattan, the City of
New York. Every successor depositary shall execute and deliver to its
A-19
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor.
The predecessor depositary, upon payment of all sums due it and on the written
request of the Company, shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder (other
than as contemplated in the Deposit Agreement), (ii) duly assign, transfer and
deliver all right, title and interest to the Deposited Securities to such
successor, and (iii) deliver to such successor a list of the Holders of all
outstanding ADRs and such other information relating to ADRs and Holders thereof
as the successor may reasonably request. Any such successor depositary shall
promptly provide notice of its appointment to such Holders. 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.
(21) Amendment/Supplement. Subject to the terms and conditions of
this paragraph 21, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADRs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADRs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADR and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and this ADR at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, or rules or
regulations.
A-20
(22) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADRs then outstanding at least ninety
(90) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
ninety (90) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holders' ADR(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
paragraph (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon 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 such ADR. If any ADRs shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for ADRs surrendered to the Depositary
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of a ADR, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, 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, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
ADRs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the ADRs, the Deposited Securities and the ADSs, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of an ADR, any expenses for the account of the Holder in accordance with the
terms and conditions of the Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this ADR or the Deposit Agreement to the contrary, the withdrawal
or delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time.
A-21
(24) Certain Rights of the Pre-Release Transactions. Subject to the
further terms and provisions of this paragraph (24), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 of the Deposit Agreement (each such transaction, a "Pre-Release
Transaction"), and (ii) deliver Shares only upon the receipt of ADSs for
cancellation and withdrawal of Deposited Securities pursuant to Section 2.8 of
the Deposit Agreement, including ADSs which were issued under (i) above but for
which Shares may not have been received. The Depositary may receive ADSs in lieu
of Shares under (i) above. Each such Pre-Release Transaction will be (a) subject
to a written agreement whereby the person or entity (the "Applicant") to whom
ADSs are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares in its records and to hold such
Shares in trust for the Depositary until such Shares are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, U.S. government securities 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 Depositary will normally limit the number of ADSs involved in
such Pre-Release Transactions at any one time to thirty percent (30%) of the
ADSs outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
A-22
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:____________________________________
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person executing
the endorsement must give his/her full
title in such capacity and proper
evidence of authority to act in such
capacity, if not on file with the
Depositary, must be forwarded with this
ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs
must be guaranteed by a member of a
Medallion Signature Program approved by
the Securities Transfer Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' Ordinary Shares of Suez and as such do not
entitle the holders thereof to the same per-share entitlement as other Ordinary
Shares (which are 'full entitlement' Ordinary Shares) issued and outstanding at
such time. The ADSs represented by this ADR shall entitle holders to
distributions and entitlements identical to other ADSs when the Ordinary Shares
represented by such ADSs become 'full entitlement' Ordinary Shares."]
A-23
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or person receiving ADSs.
issuances contemplated by
paragraphs (3)(b) and (5)
below).
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and fraction thereof) surrendered. withdrawal.
cash against surrender of
ADSs.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee, so long as prohibited by Person to whom distribution is made.
dividend or (b) ADSs the exchange upon which the ADSs
pursuant to stock dividends are listed. If the charging of
(or other free distribution such fee is not prohibited, the
of stock). fees payable are to be agreed upon
by the Company and the Depositary,
notice of which will be given to
the Holders upon the terms of the
Deposit Agreement.
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., upon sale of rights fraction thereof) held.
and other entitlements).
-------------------------------------------------------------------------------------------------------------------
(5) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
to exercise of rights to fraction thereof) issued.
purchase additional ADSs.
-------------------------------------------------------------------------------------------------------------------
B-1
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing or withdrawing Shares or
Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
B-2
