ADS DEPOSIT AGREEMENT
by and among
AIR FRANCE
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
SHARES ISSUED HEREUNDER
Dated as of [DATE], 2004
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS......................................................1
Section 1.1 "45% Threshold Event"............................................2
Section 1.2 "45% Threshold Event Procedures".................................2
Section 1.3 "ADS Deposit Agreement"..........................................2
Section 1.4 "ADS Record Date"................................................2
Section 1.5 "Affiliate"......................................................2
Section 1.6 "Agent"..........................................................2
Section 1.7 "Air France".....................................................2
Section 1.8 "American Depositary Share(s)" and "ADS(s)"......................2
Section 1.9 "Applicant"......................................................2
Section 1.10 "Application for Refund".........................................3
Section 1.11 "Articles of Association"........................................3
Section 1.12 "Balance Certificate"............................................3
Section 1.13 "Beneficial Owner"...............................................3
Section 1.14 "Blocked Period".................................................3
Section 1.15 "Business Day"...................................................3
Section 1.16 "Certificated ADS(s)"............................................3
Section 1.17 "Commission".....................................................3
Section 1.18 "Company"........................................................3
Section 1.19 "Custodian"......................................................3
Section 1.20 "Deliver" and "Delivery".........................................3
Section 1.21 "Depositary".....................................................3
Section 1.22 "Deposited Securities"...........................................3
Section 1.23 "Dollars" and "$"................................................4
Section 1.24 "DTC"............................................................4
Section 1.25 "DTC Participant"................................................4
Section 1.26 "EEA"............................................................4
Section 1.27 "E.U." and "European Union"......................................4
Section 1.28 "E.U. 45% Threshold Event Notice"................................4
Section 1.29 "E.U. ADS(s)"....................................................4
Section 1.30 "E.U. Holder"....................................................4
Section 1.31 "E.U. Person"....................................................4
Section 1.32 "Euroclear France"...............................................4
Section 1.33 "Euros" and "(euro)".............................................4
Section 1.34 "Exchange Act"...................................................4
Section 1.35 "Foreign Currency"...............................................4
Section 1.36 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)"......................................5
Section 1.37 "Holder(s)"......................................................5
Section 1.38 "Non-E.U. 45% Threshold Event Notice"............................5
Section 1.39 "Non-E.U. ADS(s)"................................................5
Section 1.40 "Non-E.U. Holder"................................................5
Section 1.41 "Non-E.U. Person"................................................5
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Section 1.42 "NYSE"...........................................................5
Section 1.43 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)"...............................5
Section 1.44 "Pre-Release Transaction"........................................5
Section 1.45 "Principal Office"...............................................5
Section 1.46 "Receipt Date"...................................................5
Section 1.47 "Registrar"......................................................5
Section 1.48 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares"..........................................................6
Section 1.49 "Restricted Securities"..........................................6
Section 1.50 "Securities Act".................................................6
Section 1.51 "Share Registrar"................................................6
Section 1.52 "Shares".........................................................6
Section 1.53 "Uncertificated ADS(s)"..........................................6
Section 1.54 "United States" and "U.S.".......................................6
Section 1.55 "Voters".........................................................7
Section 1.56 "Voting Instruction Card"........................................7
ARTICLE II. APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS.........................................................7
Section 2.1 Appointment of Depositary........................................7
Section 2.2 Form and Transferability of ADSs.................................7
Section 2.3 Deposit with Custodian...........................................9
Section 2.4 Registration and Safekeeping of Deposited Securities............10
Section 2.5 Issuance of ADSs................................................10
Section 2.6 Transfer, Combination and Split-up of ADRs......................11
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities........12
Section 2.8 Limitations on Execution and Delivery, Transfer etc. of
ADRs; Suspension of Delivery, Transfer, etc.....................13
Section 2.9 Lost ADRs, etc..................................................14
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records..........................................14
Section 2.11 Partial Entitlement ADSs........................................15
Section 2.12 Certificated/Uncertificated ADSs................................15
Section 2.13 Restricted ADSs.................................................17
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs....18
Section 3.1 Proofs, Certificates and Other Information......................18
Section 3.2 Liability for Taxes and Other Charges...........................19
Section 3.3 Representations and Warranties on Deposit of Shares.............19
Section 3.4 Compliance with Information Requests............................20
Section 3.5 Limitations on the Right to Own, Transfer or Vote ADSs;
Compulsory Transfer of the Shares...............................20
Section 3.6 Disclosure of Interests.........................................23
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ARTICLE IV. THE DEPOSITED SECURITIES........................................26
Section 4.1 Cash Distributions..............................................26
Section 4.2 Distribution in Shares..........................................27
Section 4.3 Elective Distributions in Cash or Shares........................27
Section 4.4 Distribution of Rights to Purchase Additional ADSs..............28
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares..........................................................30
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form.....................................................31
Section 4.7 Redemption......................................................31
Section 4.8 Conversion of Foreign Currency..................................31
Section 4.9 Fixing of ADS Record Date.......................................32
Section 4.10 Voting of Deposited Securities..................................33
Section 4.11 Changes Affecting Deposited Securities..........................35
Section 4.12 Available Information...........................................36
Section 4.13 Reports.........................................................36
Section 4.14 List of Holders.................................................36
Section 4.15 Taxation........................................................37
ARTICLE V. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...................38
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.......38
Section 5.2 Exoneration.....................................................39
Section 5.3 Standard of Care................................................40
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................40
Section 5.5 The Custodian...................................................41
Section 5.6 Notices and Reports.............................................42
Section 5.7 Issuance of Additional Shares, ADSs etc.........................42
Section 5.8 Indemnification.................................................43
Section 5.9 Fees and Charges of Depositary..................................44
Section 5.10 Pre-Release Transactions........................................45
Section 5.11 Restricted Securities Owners....................................46
Section 5.12 Retention of Depositary Documents...............................46
ARTICLE VI. AMENDMENT AND TERMINATION.......................................46
Section 6.1 Amendment/Supplement............................................46
Section 6.2 Termination.....................................................47
ARTICLE VII. MISCELLANEOUS...................................................48
Section 7.1 Counterparts....................................................48
Section 7.2 No Third-Party Beneficiaries....................................48
Section 7.3 Severability....................................................48
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect........48
Section 7.5 Notices.........................................................48
Section 7.6 Governing Law and Jurisdiction..................................49
Section 7.7 Assignment......................................................51
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Section 7.8 Compliance with U.S. Securities Laws............................51
Section 7.9 French Law References...........................................51
Section 7.10 Titles and References...........................................51
iv
ADS DEPOSIT AGREEMENT
ADS DEPOSIT AGREEMENT, dated as of [DATE], 2004, by and among (i) societe
Air France, a societe anonyme organized under the laws of The Republic of
France, and its successors (the "Company" and "Air France"), (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 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 an ADR
facility to provide inter alia for the deposit of the Shares (as hereinafter
defined) and the issuance of American Depositary Shares representing the Shares
so deposited and, if applicable, for the execution and delivery of American
Depositary Receipts evidencing such American Depositary Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this ADS Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this ADS Deposit Agreement are
to be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this ADS
Deposit Agreement; and
WHEREAS, the Shares are listed on Premier Marche of Euronext Paris and
American Depositary Shares to be issued pursuant to the terms of this ADS
Deposit Agreement are to be listed for trading on The New York Stock Exchange,
Inc. (the "NYSE"); and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this ADS Deposit Agreement (as hereinafter defined), the execution
and delivery of this ADS Deposit Agreement on behalf of the Company, and the
actions of the Company and the transactions contemplated herein.
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 "45% Threshold Event" shall mean, as set forth in the Articles
of Association, that persons or entities other than French Nationals (as defined
in Article 14 of the Articles of Association) directly or indirectly hold at
least 45 percent (or other such percentage, if any, as may from time to time be
provided in the Articles of Association or under French law) of the share
capital or voting rights of the Company and the Company has informed the
shareholders and the general public to this effect.
Section 1.2 "45% Threshold Event Procedures" shall mean all steps that the
Company may take under the Articles of Association upon the occurrence or
continuance of a 45% Threshold Event, particularly the compulsory transfer of
all or part of the Shares held by certain shareholders and the requirement of
prior approval of Air France's board of directors for certain transfers of
Shares.
Section 1.3 "ADS Deposit Agreement" shall mean this ADS 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.
Section 1.4 "ADS Record Date" shall have the meaning given to such term in
Section 4.9 hereof.
Section 1.5 "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 1.6 "Agent" shall have the meaning given to such term in Section
7.6 hereof.
Section 1.7 "Air France" shall mean societe Air France, a societe anonyme
organized and existing under the laws of The Republic of France, to be renamed
Air France-KLM, and its successors.
Section 1.8 "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 this ADS Deposit
Agreement and the ADRs issued hereunder to evidence such ADSs. ADS(s) may be
issued under the terms of this ADS Deposit Agreement in the form of (a)
Certificated ADS(s) (as hereinafter defined), in which case the ADS(s) are
evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined) in
which case the ADS(s) are not evidenced by ADR(s) but are reflected on the
direct registration system maintained by the Depositary for such purposes under
the terms of Section 2.12 hereof. Unless otherwise specified in this ADS Deposit
Agreement or in any ADR, or unless the context otherwise requires, any reference
to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require. Each ADS shall
represent one (1) Share until there shall occur a distribution upon Deposited
Securities referred to in Section 4.2 hereof or a change in Deposited Securities
referred to in Section 4.11 hereof 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 1.9 "Applicant" shall have the meaning given to such term in
Section 5.10 hereof.
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Section 1.10 "Application for Refund" shall have the meaning given to such
term in Section 4.15 hereof.
Section 1.11 "Articles of Association" shall mean the statuts of the
Company, as amended and supplemented from time to time.
Section 1.12 "Balance Certificate" shall have the meaning given to such
term in Section 2.2(d) hereof.
Section 1.13 "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 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 ADSs owned by such Beneficial
Owner.
Section 1.14 "Blocked Period" shall have the meaning given to such term in
Section 4.10 hereof.
Section 1.15 "Business Day" shall mean any day on which the banks in New
York, New York, U.S.A. are open for business.
Section 1.16 "Certificated ADS(s)" shall have the meaning given to such
term in Section 2.12 hereof.
Section 1.17 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
Section 1.18 "Company" shall mean societe Air France, a societe anonyme
organized and existing under the laws of The Republic of France, and its
successors.
Section 1.19 "Custodian" shall mean, as of the date hereof, Citibank
International Plc - Paris branch, having its principal office at Citicenter, ▇▇,
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Defense, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, as the custodian for the
purposes of this ADS Deposit Agreement, and any other entity that may be
appointed by the Depositary pursuant to the terms of Section 5.5 hereto as
successor, substitute or additional custodian hereunder. The term "Custodian"
shall mean any Custodian individually or all Custodians collectively, as the
context requires.
Section 1.20 "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 1.21 "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 this ADS Deposit Agreement, and any successor
depositary hereunder.
Section 1.22 "Deposited Securities" shall mean Shares at any time
deposited under this ADS 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 4.8 hereof. The
collateral delivered in connection with Pre-Release Transactions described in
Section 5.10 hereof shall not constitute Deposited Securities.
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Section 1.23 "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.24 "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 1.25 "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 1.26 "EEA" shall mean the European Economic Area.
Section 1.27 "E.U." and "European Union" shall mean the European Union.
Section 1.28 "E.U. 45% Threshold Event Notice" shall mean a formal request
from the Company or a writ of summons from the High Civil Court of Paris
(Tribunal de Grande Instance de Paris) to the Depositary calling for the
disposal of all or part of the deposited Shares held by or on behalf of E.U.
Holders in accordance with Article 15 of the Articles of Association.
Section 1.29 "E.U. ADS(s)" shall mean ADS(s) held or owned by E.U.
Holders.
Section 1.30 "E.U. Holder" shall mean an E.U. Person who is a Holder or
Beneficial Owner of ADSs and as such holds an interest in any deposited Shares.
Each E.U. Holder may evidence its status as an E.U. Holder by holding ADSs
either (i) as Certificated ADSs registered directly in the name of such E.U.
Holder or (ii) as Uncertificated ADSs registered directly in the name of the E.
U. Holder and providing such additional evidence as the Company may in its
discretion require to establish that the Deposited Securities underlying the
E.U. Holder's ADSs are not held by a Non-E.U. Holder.
Section 1.31 "E.U. Person" shall mean a person who is a national of an E.U
member state or a state that is party to the EEA (or a state party to any
agreement whose scope is equivalent in terms of air transport).
Section 1.32 "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 1.33 "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 the European Union and as further amended from time to
time.
Section 1.34 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
Section 1.35 "Foreign Currency" shall mean any currency other than
Dollars.
4
Section 1.36 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11 hereof.
Section 1.37 "Holder(s)" shall mean the person(s) in whose name the ADS 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 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.
Section 1.38 "Non-E.U. 45% Threshold Event Notice" shall mean a formal
request from the Company or a writ of summons from the High Civil Court of Paris
(Tribunal de Grande Instance de Paris) to the Depositary calling for the
disposal of all or part of the deposited Shares held by or on behalf of Non-E.U.
Holders in accordance with Article 15 of the Articles of Association.
Section 1.39 "Non-E.U. ADS(s)" shall mean ADS(s) held or owned by Non-E.U.
Holders.
Section 1.40 "Non-E.U. Holder" shall mean a Non-E.U. Person who is a
Holder or Beneficial Owner and as such holds an interest in any deposited
Shares. Each Holder and Beneficial Owner acknowledges that the Company is
entitled to assume that each Holder of ADSs with a registered address outside of
the E.U. member states or EEA countries is a Non-E.U. Holder.
Section 1.41 "Non-E.U. Person" shall mean a person other than a national
of an E.U. member state or a state that is party to the EEA (or a state party to
any agreement whose scope is equivalent in terms of air transport) (as
appropriate).
Section 1.42 "NYSE" shall have the meaning set forth in the recitals
hereof.
Section 1.43 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11 hereof.
Section 1.44 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10 hereof.
Section 1.45 "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 this ADS Deposit Agreement, is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇.
Section 1.46 "Receipt Date" shall have the meaning given to such term in
Section 4.10 hereof.
Section 1.47 "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 ADSs 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. Each
Registrar (other than the Depositary) appointed pursuant to this ADS Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this ADS Deposit Agreement.
5
Section 1.48 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.3 hereto.
Section 1.49 "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 (as hereinafter defined) or the rules issued thereunder, or (ii)
are held by an officer or director (or persons performing similar functions) or
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 Articles of Association (as hereinafter
defined) 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, and the Shares,
Deposited Securities or ADSs are not, when held by such person(s), Restricted
Securities.
Section 1.50 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
Section 1.51 "Share Registrar" shall mean Societe Generale 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 1.52 "Shares" shall mean the Company's ordinary shares, nominal
value (euro)8.50 per share, validly issued and outstanding and fully paid and
non-assessable. 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 ADS 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 Custodian 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, however, that, if there shall occur any change in nominal
value, split-up, consolidation, reclassification, exchange, conversion or any
other event described in Section 4.11 hereof 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 1.53 "Uncertificated ADS(s)" shall have the meaning given to such
term in Section 2.12 hereof.
Section 1.54 "United States" and "U.S." shall have the meaning assigned to
it in Regulation S as promulgated by the Commission under the Securities Act.
6
Section 1.55 "Voters" shall have the meaning given to such term in Section
4.10 hereof.
Section 1.56 "Voting Instruction Card" shall have the meaning given to
such term in Section 4.10 hereof.
ARTICLE II.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 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 this ADS Deposit Agreement and the representative ADR(s), if and as
applicable. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
this ADS Deposit Agreement shall be deemed for all purposes to (a) be a party to
and bound by the terms of this ADS Deposit Agreement and the representative
ADR(s), if and as applicable, 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 this ADS Deposit Agreement and the
representative ADR(s), if and as applicable, 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 this ADS Deposit Agreement and the representative ADR(s), if and
as applicable, the taking of such actions to be the conclusive determinant of
the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs.
(a) Form. Certificated 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 this
ADS Deposit Agreement in denominations of any whole number of ADSs. The ADRs
shall be substantially in the form set forth in Exhibit A to this ADS Deposit
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in this ADS Deposit Agreement or required by law.
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 Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADRs. No ADR and no Certificated ADS evidenced
thereby shall be entitled to any benefits under this ADS 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
7
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.
(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
this ADS 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) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such 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 an ADS
(that is, the person in whose name an ADS 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
liability under this ADS Deposit Agreement or any ADR to any holder of an ADS or
any Beneficial Owner unless, in the case of a holder of an ADS, such holder is
the Holder 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.
(d) 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 number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
number 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
8
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 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. Subject to the terms and conditions of
this ADS 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 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every
deposit of Shares shall be accompanied by the following: (A) (i) in the case of
Shares represented by certificates issued in registered form, appropriate
instruments of transfer or endorsement, in a form satisfactory to the Custodian,
(ii) in the case of Shares represented by certificates in bearer form, the
requisite coupons and talons pertaining thereto, and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) 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 this ADS Deposit Agreement and applicable
law, (C) if the Depositary so requires, a written order directing the Depositary
to issue and deliver to, or upon the written order of, the person(s) stated in
such order the number of ADSs representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in The Republic of
France, and (E) if the Depositary so requires, (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.
9
Without limiting any other provision of this ADS Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities except as
contemplated in Section 2.13 nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of The Republic of
France and any necessary approval has been granted by any applicable
governmental body in The Republic of France, if any. 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.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this ADS Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act, unless a registration statement is in effect as to such Shares
or other Deposited Securities, or any Shares or other Deposited Securities the
deposit of which would violate any provisions of the Articles of Association of
the Company.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements with
the Custodian to confirm to the Depositary (i) that a deposit of Shares has been
made pursuant to Section 2.3 hereof, (ii) that 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) that 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 this ADS Deposit Agreement and applicable law, shall issue the
ADSs representing the Shares so deposited to or upon the order of the person(s)
10
named in the notice delivered to the Depositary and, if the ADSs are being
issued as Certificated ADSs, 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 in each
case, 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 Section 5.9 hereof and 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.
Nothing herein shall prohibit any Pre-Release Transaction upon the terms set
forth in this ADS Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall register the transfer of ADRs (and of
the ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the same
aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (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) the ADRs have 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 transfer
thereof, (ii) the surrendered ADRs have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
ADRs have 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 and all applicable taxes and governmental charges
(as are set forth in Section 5.9 hereof and Exhibit B hereto) have been paid,
subject, however, in each case, to the terms and conditions of the applicable
ADRs, of this ADS Deposit Agreement, of the Company's Articles of Association
and of applicable law and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
(b) Combination & Split Up. The Registrar shall register the split-up or
combination of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such ADRs and
execute new ADRs for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the ADRs cancelled by the Depositary,
(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) the ADRs have 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 thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
11
in Section 5.9 hereof and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable ADRs, of this ADS
Deposit Agreement, of the Company's Articles of Association and of applicable
law and to any provisions of or governing the Deposited Securities, in each case
as in effect at the time thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups of
ADRs at designated transfer offices on behalf of the Depositary. In carrying out
its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by 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. Each co-transfer agent appointed under
this Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this ADS Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are 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 and all applicable
taxes and governmental charges (as are set forth in Section 5.9 hereof and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of the surrendered ADSs, of this ADS Deposit Agreement, of the
Company's Articles of Association and 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
ADRs 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) 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
12
order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of this ADS Deposit Agreement, of the ADSs so
cancelled, of the Articles of Association of the Company, of any applicable laws
and of the rules of 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 the 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 any ADR or this ADS 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, 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.
Section 2.8 Limitations on Execution and Delivery, Transfer etc. of ADRs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, 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
Section 5.9 hereof and Exhibit B hereof, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof, 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 and the Company may establish
consistent with the provisions of the applicable ADR, this ADS Deposit Agreement
and applicable law.
13
(b) Additional Limitations. 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 ADSs in particular instances may be refused, or the registration of transfers
of ADSs 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 government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of this ADS Deposit Agreement or the representative ADR(s), if
applicable, 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 Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this ADS
Deposit Agreement or any ADR(s) 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).
Section 2.9 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 2.10 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 this ADS
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. 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).
14
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited 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"), 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 this ADS 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 this ADS 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 2.11. 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 2.11. 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 2.12 Certificated/Uncertificated ADSs. Notwithstanding any other
provision of this ADS Deposit Agreement, the Depositary may, at any time and
from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)). When issuing and maintaining Uncertificated ADS(s) under this ADS
Deposit Agreement, the Depositary shall at all times be subject to (i) the
standards applicable to registrars and transfer agents maintaining direct
registration systems for equity securities in New York and issuing
uncertificated securities under New York law, and (ii) the terms of New York law
applicable to uncertificated equity securities. Uncertificated ADSs shall not be
represented by any instruments but shall be evidenced by registration in the
books of the Depositary maintained for such purpose. Holders of Uncertificated
ADSs that are not subject to any registered pledges, liens, restrictions or
adverse claims of which the Depositary has notice at such time shall at all
times have the right to exchange the Uncertificated ADS(s) for Certificated
ADS(s) of the same type and class, subject in each case to applicable laws and
any rules and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the Depositary
maintains a direct registration system for the ADSs, have the right to exchange
the Certificated ADSs for Uncertificated ADSs upon (i) the due surrender of the
Certificated ADS(s) to the Depositary for such purpose and (ii) the presentation
of a written request to that effect to the Depositary, subject in each case to
(a) all liens and restrictions noted on the ADR evidencing the Certificated
15
ADS(s) and all adverse claims of which the Depositary then has notice, (b) the
terms of this ADS Deposit Agreement and the rules and regulations that the
Depositary may establish for such purposes hereunder, (c) applicable law, and
(d) payment of the Depositary fees and expenses applicable to such exchange of
Certificates ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all
respects be identical to Certificated ADS(s) of the same type and class, except
that (i) no ADR(s) shall be, or shall need to be, issued to evidence
Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to the terms of
this ADS Deposit Agreement, be transferable upon the same terms and conditions
as uncertificated securities under New York law, (iii) the ownership of
Uncertificated ADS(s) shall be recorded on the books of the Depositary
maintained for such purpose and evidence of such ownership shall be reflected in
periodic statements provided by the Depositary to the Holder(s) in accordance
with applicable New York law, (iv) the Depositary may from time to time, upon
notice to the Holders of Uncertificated ADSs affected thereby, establish rules
and regulations, and amend or supplement existing rules and regulations, as may
be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that (a) such rules and regulations do not conflict with the
terms of this ADS Deposit Agreement and applicable law, and (b) the terms of
such rules and regulations are readily available to Holders upon request, (v)
the Uncertificated ADS(s) shall not be entitled to any benefits under this ADS
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless such Uncertificated ADS(s) is/are registered on
the books of the Depositary maintained for such purpose, (vi) the Depositary
may, in connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and cancellation of
Uncertificated ADSs, require the prior receipt of such documentation as the
Depositary may deem reasonably appropriate, and (vii) upon termination of this
ADS Deposit Agreement, the Depositary shall not require Holders of
Uncertificated ADSs to affirmatively instruct the Depositary before remitting
proceeds from the sale of the Deposited Securities represented by such Holders'
Uncertificated ADSs under the terms of Section 6.2 hereof. When issuing ADSs
under the terms of this ADS Deposit Agreement, including, without limitation,
issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11 hereof, the
Depositary shall issue Uncertificated ADSs rather than Certificated ADSs, unless
(i) the Depositary determines that the distribution in Certificated ADSs is more
appropriate than a distribution of Uncertificated ADSs in light of the
circumstances then existing, or (ii) otherwise specifically instructed by the
applicable Holder to issue Certificated ADSs. All provisions and conditions of
this ADS Deposit Agreement shall apply to Uncertificated ADSs to the same extent
as to Certificated ADSs, except as contemplated by this Section 2.12. The
Depositary is authorized and directed to take any and all actions and establish
any and all procedures deemed reasonably necessary to give effect to the terms
of this Section 2.12. Any references in this ADS Deposit Agreement or any ADR(s)
to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.12 and except as required by
16
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of this ADS Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of this ADS
Deposit Agreement (other than this Section 2.12) and (b) the terms of this
Section 2.12, the terms and conditions set forth in this Section 2.12 shall be
controlling and shall govern the rights and obligations of the parties to this
ADS Deposit Agreement pertaining to the Uncertificated ADSs.
Section 2.13 Restricted ADSs. 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
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 this ADS Deposit Agreement
and (ii) an opinion of counsel satisfactory to the Depositary setting forth, i,
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 2.13 and except as required by applicable law, the Restricted ADRs and
the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs issued
17
and outstanding under the terms of this ADS 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 this ADS
Deposit Agreement (other than this Section 2.13) and (b) the terms of (i) this
Section 2.13 or (ii) the applicable Restricted ADR, the terms and conditions set
forth in this Section 2.13 and of the Restricted ADR shall be controlling and
shall govern the rights and obligations of the parties to this ADS 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 satisfactory to the Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations between
the applicable Restricted Shares held on deposit under this Section 2.13 and the
other Shares held on deposit under the terms of this ADS 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 this ADS 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 2.13 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.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, 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, the terms of
this ADS Deposit Agreement or the ADR(s) evidencing the ADSs, if applicable, 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 on the books of the Company or of the Share 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 this ADS Deposit Agreement and the applicable ADR(s), if
18
applicable. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADS or the distribution
or sale of any dividend or distribution of rights or of the proceeds thereof or,
to the extent not limited by the terms of Section 7.8 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 other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives from Holders and Beneficial
Owners, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from any
Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs
for cancellation, transfer or withdrawal. 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.
Section 3.2 Liability for Taxes and Other Charges. Any French or other tax
or other governmental charge payable by the Custodian or by the Depositary with
respect to any ADR, any Deposited Securities or ADSs shall be payable by the
Holders and Beneficial Owners to the Depositary. The Company, the Custodian
and/or the Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may 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
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, deliver ADRs, register the
transfer of ADSs, register the split-up or combination of ADRs and (subject to
Section 7.8 hereof) the withdrawal of Deposited Securities until payment in full
of such tax, charge, penalty or interest is received. 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 to hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under this ADS 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, and (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.13 hereof), and (vi) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
19
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.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this ADS Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of The New York Stock Exchange, Inc.,
and any other stock exchange on which the Shares or ADSs are, or will be,
registered, traded or listed or the Articles of Association 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. The Depositary
agrees to use its reasonable efforts to forward, upon the request of the Company
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary.
Section 3.5 Limitations on the Right to Own, Transfer or Vote ADSs;
Compulsory Transfer of the Shares.
(a) Acknowledgments and Agreements. Each Holder and Beneficial Owner
acknowledges and agrees that:
(i) each ADS is, and the terms and conditions upon which it is held by
such Holder and Beneficial Owner are, subject to the Articles of Association and
applicable French law (including Articles L. 360-1 to L. 360-4 and R. 360-1 to
R. 360-5 of the French Code of Civil Aviation);
(ii) the Depositary and the Custodian, as registered holders of the Shares
represented by the ADSs, are subject to the 45% Threshold Event Procedures, in
their capacity as representatives of all Holders and Beneficial Owners of ADSs;
(iii) such Holder's and Beneficial Owner's ADSs represent a direct or
indirect interest in the Shares underlying such ADSs and, as such, the share
capital and voting rights of the Company (except as otherwise provided in the
Articles of Association);
(iv) so long as a 45% Threshold Event shall continue the Company may
implement the 45% Threshold Event Procedures concerning any Holder or Beneficial
Owner upon the terms and conditions contemplated herein and such Holder or
Beneficial Owner shall comply with such 45% Threshold Event Procedures;
(v) to the extent it may legally do so, it will provide certain
information that is requested by the Company under statutory provisions of
French law or the Articles of Association, including, among other matters,
information as to the identity of persons who have interests in the deposited
Shares;
20
(vi) the Company is entitled to issue formal requests and writs of summons
for the sale of Shares, in one or more phases, in enforcement of the 45%
Limitation and that such formal requests shall be issued by the Company
initially to Non-E.U. Holders and, thereafter, to E.U. Holders; and
(vii) the Shares covered by the formal requests and writs of summons
described in clause (vi) above shall be determined by the Company in reverse
chronological order of registration in the Company's Share register, beginning
with the most recently registered Shares;
(viii) following application of (vii) above, if more than one shareholder
holds a number of Shares registered on the same date on the books of the Company
and exceeding the balance of the Shares to which the same formal request
procedure is to be applied, such balance shall be split between those holders in
proportion to the Shares concerned.
(b) Specified Holder Non-E.U. 45% Threshold Event Notice. If the
Depositary (or the Custodian or any nominee of the Custodian) as registered
holder of any deposited Shares receives from the Company a Non-E.U. 45%
Threshold Event Notice with respect to the Shares underlying ADSs held by a
specified Non-E.U. Holder or Beneficial Owner, the Depositary shall:
(i) refuse to register any issuance of ADSs in respect of Shares described
in the Non-E.U. 45% Threshold Event Notice to such Non-E.U. Holder and shall
refuse to register any transfer of Non-E.U. ADSs, whose underlying Shares are
mentioned in the Non-E.U. 45% Threshold Event Notice, by such Non-E.U. Holder on
the register of the Depositary, in each case, other than in accordance with the
procedures set forth in the French 2003 Air Carrier Law and the Articles of
Association or until the Company has withdrawn the Non-E.U. 45% Threshold Event
Notice in respect of Non-E.U. ADSs;
(ii) deny the voting rights attaching to Non-E.U. ADSs owned by such
Non-E.U. Holder, to the extent that the voting rights of the deposited Shares
underlying such Non-E.U. ADSs are denied to the Depositary as notified in the
Non-E.U. 45% Threshold Event Notice or until the Company has withdrawn the
Non-E.U. 45% Threshold Event Notice in respect of such Non-E.U. ADSs; and
(iii) send written notice to such Non-E.U. Holder stating, inter alia,
that: (x) the Depositary has received a Non-E.U. 45% Threshold Event Notice, (y)
such Non-E.U. Holder must within 15 days of receipt of the Non-E.U 45% Threshold
Event Notice by the Depositary, sell the Non-E.U. ADSs or underlying Shares (to
the Company's satisfaction), and (z) if the sale provided for in (y) above is
not made to the Company's satisfaction within two (2) months of the Non-E.U. 45%
Threshold Event Notice and if such Non-E.U. 45% Threshold Event Notice has not
been withdrawn,
(A) any or all Shares underlying the Non-E.U. ADSs may be sold pursuant to
the Article 16 of the Articles of Association and French law, and
21
(B) if any such sale is made, such Non-E.U. ADSs shall thereafter
represent only the right to receive any net cash proceeds received (after
deduction of all applicable fees, taxes and expenses) by the Depositary in
connection with such sale and any unsold Shares and any other Deposited
Securities and, upon surrender of such Non-E.U. ADSs, the Non-E.U. Holder
thereof shall be entitled to withdraw such cash and such underlying Shares and
other Deposited Securities in the manner set forth in Section 2.7 hereof.
(c) General Non-E.U. 45% Threshold Event Notice: If the Depositary (or the
Custodian or any nominee of the Custodian) receives a Non-E.U. 45% Threshold
Event Notice that does not contain the information as to specified Non-E.U.
Holders contemplated in paragraph (b) above, the Depositary shall take the
actions contemplated in paragraph (b) above with respect to all Non-E.U. ADSs,
except that the Depositary shall (i) apply any denial of voting rights pro rata
to all Non-E.U. ADSs, (ii) give notice to all Holders of Non-E.U. ADSs of
receipt by the Depositary of the Non-E.U. 45% Threshold Event Notice, and (iii)
treat any sale of Shares in connection with the Non-E.U. 45% Threshold Event
Notice as if it were a distribution in cash as provided in Sections 4.1 and 4.8
hereof.
(d) Specified E.U. 45% Threshold Event Notice. If the Depositary (or the
Custodian or any nominee of the Custodian) as registered holder of any deposited
Shares receives from the Company an E.U. 45% Threshold Event Notice with respect
to the Shares underlying ADSs held by a specified E.U. Holder, the Depositary
shall, in addition to the actions set forth in (b) and (c) above (if specified
by the Company):
(i) refuse to register any issuance of ADSs in respect of Shares described
in the E.U. 45% Threshold Event Notice to such E.U. Holder and shall refuse to
register any transfer of E.U. ADSs, whose underlying Shares are mentioned in the
E.U. 45% Threshold Event Notice, by such E.U. Holder on the register of the
Depositary, in each case, other than in accordance with the procedures set forth
in the French 2003 Air Carrier Law and the Articles of Association or until the
Company has withdrawn the E.U. 45% Threshold Event Notice in respect of E.U.
ADSs;
(ii) deny the voting rights attaching to E.U. ADSs owned by the specified
E.U. Holder, to the extent that the voting rights of the deposited Shares
underlying such E.U. ADSs are denied to the Depositary as notified in the E.U.
45% Threshold Event Notice or until the Company has withdrawn the E.U. 45%
Threshold Event Notice in respect of E.U. ADSs; and
(iii) send written notice to such E.U. Holder stating, inter alia, that:
(x) the Depositary has received an E.U. 45% Threshold Event Notice, (y) such
E.U. Holder must within 15 days of receipt of the E.U 45% Threshold Event Notice
by the Depositary, sell the E.U. ADSs or underlying Shares (to the Company's
satisfaction), and (z) if the sale provided for in (y) above is not made to the
Company's satisfaction within two (2) months of the E.U. 45% Threshold Event
Notice and if such E.U. 45% Threshold Event Notice has not been withdrawn,
22
(A) any or all Shares underlying the E.U. ADSs may be sold pursuant to
Article 16 of the Articles of Association and French law, and
(B) if any such sale is made, such E.U. ADSs shall thereafter represent
only the right to receive any net cash proceeds received (after deduction of all
applicable fees, taxes and expenses) by the Depositary in connection with such
sale and any unsold Shares and any other Deposited Securities and, upon
surrender of such E.U. ADSs, the E.U. Holder thereof shall be entitled to
withdraw such cash and such underlying Shares and other Deposited Securities in
the manner set forth in Section 2.7 hereof.
(e) General E.U. 45% Threshold Event Notice. If the Depositary (or the
Custodian or any nominee of the Custodian) receives an E.U. 45% Threshold Event
Notice that does not contain the information as to specified E.U. Holders
contemplated in paragraph (d) above, the Depositary shall, in addition to the
actions set forth in (b) and (c) above (if specified by the Company), take the
actions contemplated in paragraph (d) above with respect to all E.U. ADSs except
that the Depositary shall (i) apply any denial of voting rights pro rata to all
E.U. ADSs, (ii) give notice to all Holders of E.U. ADSs of receipt by the
Depositary of the E.U. 45% Threshold Event Notice, and (iii) treat any sale of
Shares in connection with the E.U. 45% Threshold Event Notice as if it were a
distribution in cash as provided in Sections 4.1 and 4.8 hereof.
(f) Modifications of Non-E.U. 45% Threshold Event Notice or E.U 45%
Threshold Event Notice. If the Depositary at any time receives a notice from the
Company referring to a Non-E.U. 45% Threshold Event Notice or a E.U. 45%
Threshold Event Notice, the Depositary shall, to the extent not prohibited by
law and at the expense of the Company, take action in accordance with such
Non-E.U. 45% Threshold Event Notice or E.U. 45% Threshold Event Notice, as the
case may be, as modified from and after the receipt of such notice by the
Depositary.
(g) Cooperation. At the Company's expense, the Depositary will cooperate
in forwarding to Holders or to the Company, as the case may be, communications
relating to the application of the provisions of this Section 3.5. Holders
seeking to communicate with the Company on matters relating to the application
of the provisions of this Section 3.5 may send their communications to the
Depositary for forwarding at their own risk to the Company.
Section 3.6 Disclosure of Interests. Notwithstanding any other provision
of this ADS Deposit Agreement, each Holder and Beneficial Owner agrees, and the
Depositary agrees, to comply with the Company's Articles of Association, 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. As of the date of this
Agreement, such disclosure requirements are as follows:
Pursuant to French law and the Company's Articles of Association, any
person or entity that becomes the owner, directly or indirectly, alone or in
concert with other persons, of more than one-twentieth, one-tenth, one-fifth,
one-third, one-half or two-thirds of the share capital or voting rights (or
securities or voting rights representing Shares (which includes ADSs)), as
discussed below in this Section 3.6, must so notify the Company by registered
23
letter within five (5) trading days, and the Autorite des Marches Financiers
within five (5) trading days, of the date such threshold has been crossed, of
the number of Shares it holds or is entitled to hold and the voting rights
attached thereto. A holder of Shares is also required to notify the Company and
the Autorite des Marches Financiers if the percentage of share capital or voting
rights owned by such holder falls below the levels described in the previous
sentence. In addition, any person acquiring more than 10% or 20% of the
outstanding share capital or voting rights of the Company must file a report
within 10 trading days with the Company and the Autorite des Marches Financiers,
which makes such report available to the public by means of a notice. This
report must state whether the acquiror is acting alone or in concert with others
and indicate its intention for the following 12-month period, including whether
or not it intends to continue its purchases, to acquire the control of the
Company or to seek nomination (for itself or for others) to the Company's board
of directors. The acquiror must also publish a press release stating its
intentions in a prescribed manner. The acquiror may modify its initial
intentions in a new statement, provided that this is done on the basis of
significant changes in its own situation or those of its shareholders. Upon any
change in intention, it must file a new report. Under the regulations of the
Autorite des Marches Financiers and subject to limited exemptions, any person,
or persons acting in concert, who comes to own more than 33.3% of the share
capital or voting rights of the Company must initiate a public tender offer for
the remainder of the share capital of the Company. In order to permit holders of
share capital or voting rights to give the notice required by law, the Company
is obligated to file with the Bulletin des Annonces Legales Obligatoires
("BALO") and with the Autorite des Marches Financiers, within five (5) calendar
days of the Company's annual ordinary general meeting, information with respect
to the total number of votes available as of the date of such meeting. In
addition, if the number of available votes changes by 5% or more, the Company is
required to publish in the BALO, and to file with the Autorite des Marches
Financiers within fifteen (15) calendar days of such change, a notification of
the number of votes then available.
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.
24
In addition, the Company's Articles of Association, as in effect as of the
date hereof, provide that any shareholder who directly or indirectly, acting
alone or in concert with others, acquires ownership or control of Shares (which
includes Shares represented by ADSs) representing 0.5% or any multiple thereof
of the Company's share capital and/or voting rights, or whose shareholding falls
below any such limit, must inform the Company, within five (5) days of the
crossing of the relevant threshold up to and including the time when such
Holder's or Beneficial Owner's ownership equals 50% of the Company's share
capital and/or voting rights, of the number of Shares then owned by such
shareholder. Failure to comply with these notification requirements may result
in the Shares in excess of the relevant threshold being deprived of voting
rights for all shareholder meetings until the end of a two-year (2) period
following the date on which the owner thereof has complied with such
notification requirements. Notification must be made by registered letter with
acknowledgment of receipt, stating whether or not the Shares are held on behalf
of, under the control of, or in concert with, other legal or natural persons and
indicating the date of acquisition or disposition of the Shares triggering such
notification and the amount of Shares and voting rights then held by such
person.
In the event that a Holder or Beneficial Owner fails to comply with the
requirements of the Company's Articles of Association set forth in the preceding
paragraph, such Holder or Beneficial Owner, upon request of a holder or holders
of 0.5% or more of the share capital of the Company, shall not be permitted, in
accordance with, and subject to the limitations provided under French law, to
exercise voting rights with respect to any Shares or shares assimilated to
Shares as to which any required disclosure (as set forth in the preceding
paragraph) has not been made. Such disqualification shall only apply to Shares
in excess of the applicable threshold.
Any person or entity that becomes the Holder or Beneficial Owner, directly
or indirectly, or in concert with other shareholders of Shares or shares
assimilated to Shares (which include ADSs), as discussed above in this Section
3.6, representing 2% or more of the share capital of the Company must provide
the Company, within five (5) calendar days of reaching such ownership level,
with a written notice requesting that all such Shares, as well as any Shares
subsequently acquired in excess of that amount, be in registered form.
Additionally, pursuant to Article 9 of the Articles of Association, Air France's
board of directors may, under certain circumstances, lower such ownership level
to 10,000 Shares or shares assimilated to Shares (which include ADSs) or extend
these notification requirements to all shareholders. In order to facilitate
compliance with these notification requirements, a Holder of ADSs may deliver to
the Depositary its request that a number of Shares represented by such Holder's
or Beneficial Owner's ADSs be denominated in registered form. Upon receiving
such request, as soon as practicable thereafter, the Depositary shall request
the Custodian to denominate such Shares in registered form and to thereafter
promptly notify the Depositary and the Company that such change has been
effectuated at such Holder's or Beneficial Owner's request.
In addition, a non-resident of France, a non-French company or any group
of non-French residents or non-French companies acting in concert or any foreign
controlled resident must file a declaration administrative, or administrative
notice, with French authorities if its actions would result in (i) its
25
acquisition of more than 33.33% of the share capital or voting rights of the
Company, or (ii) an increase in ownership above 33.33% of the share capital or
of the voting rights of the Company, unless such non-French resident, group of
non-French residents or non-French company or group of non-French companies
already controls more than half of the share capital of the Company or voting
rights prior to such acquisition or increase. Under such existing administrative
rulings, ownership of a French company in which 33.33% or more of the share
capital or voting rights are held by a foreign national gives rise to an
obligation to file a declaration administrative with the French authorities.
The above provisions relating to Shares or voting rights held by a person
or an entity also apply to (i) Shares or voting rights held by another person or
entity on behalf of such person or entity, (ii) Shares or voting rights held by
any company which is directly or indirectly controlled by such person or entity,
(iii) Shares or voting rights held by a third party acting in concert with such
person or entity or (iv) Shares or voting rights that such person or entity, or
any person or entity referred to in (i), (ii) or (iii) above, is entitled to
acquire at its sole option by virtue of an agreement.
In order to facilitate compliance with notification requirements, a Holder
or Beneficial Owner may deliver any notification to the Depositary with respect
to Shares represented by ADSs, and the Depositary shall, as soon as practicable,
forward such notification to the Company.
ARTICLE IV.
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will, subject to
French laws and regulations, (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can in the judgment of the Depositary (pursuant
to Section 4.8 hereof) 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 (on the terms
described in Section 4.8 hereof), (ii) if applicable, establish the ADS Record
Date upon the terms described in Section 4.9 hereof, and (iii) distribute
promptly the amount thus received (net of (a) the 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
26
Holders of ADSs 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 on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 hereof and either (i) the Depositary shall, subject to
Section 5.9 hereof, 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 the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of this ADS 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 interests 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 described in
Section 4.1 hereof. In the event that the Depositary determines that any
distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the
Company in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), 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 expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms described in Section 4.1
hereof. The Depositary shall hold and/or distribute any unsold balance of such
property in accordance with the provisions of this ADS Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give notice thereof to the
Depositary at least sixty (60) days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon timely receipt of notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
27
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of ADSs.
The Depositary shall make such elective distribution available to Holders only
if (i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 hereof. If
the above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the 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 upon the terms described in Section
4.1 hereof or (Y) additional ADSs representing such additional Shares upon the
terms described in Section 4.2 hereof. If the above conditions are satisfied,
the Depositary shall establish an ADS Record Date (on the terms described in
Section 4.9 hereof) and establish procedures to enable Holders to elect the
receipt of the proposed distribution in cash or in additional ADSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution (X) in cash,
the distribution shall be made upon the terms described in Section 4.1 hereof,
or (Y) in ADSs, the distribution shall be made upon the terms described in
Section 4.2 hereof. Nothing herein shall obligate the Depositary to make
available to Holders a method to receive the elective distribution in Shares
(rather than ADSs). There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least sixty (60) days prior to the proposed distribution stating whether or not
it wishes such rights to be made available to Holders of ADSs. Upon timely
receipt of a notice indicating that the Company wishes such rights to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such rights available to
the Holders. The Depositary shall make such rights available to Holders only if
(i) the Company shall have timely requested that such rights be made available
to Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7 hereof, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. In the
event any of the conditions set forth above are not satisfied or if the Company
requests that the rights not be made available to Holders of ADSs, the
Depositary shall proceed with the sale of the rights as contemplated in Section
4.4(b) below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
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Section 4.9 hereof) and establish procedures to (x) distribute rights to
purchase additional ADSs (by means of warrants or otherwise), (y) to enable the
Holders to exercise such 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.
The Company shall assist the Depositary to the extent necessary in establishing
such procedures. Nothing herein shall obligate the Depositary to make available
to the Holders a method to exercise rights to subscribe for Shares (rather than
ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 hereof or determines
it is not 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 or private sale) as it may deem
practicable. The Company shall assist the Depositary to the extent necessary to
determine such legality and practicability. 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 set forth in Section 4.1 hereof.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), 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 Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, 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, in each case satisfactory to the
Depositary, 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.
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 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
29
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.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein 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.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 hereof, and
(iii) the Depositary shall have determined that such distribution is reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date
(established upon the terms described in Section 4.9 hereof), in proportion to
the number 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.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7 hereof, or (iii) the Depositary determines that all or a portion
of such distribution is not reasonably practicable, the Depositary shall 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
30
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 of Section 4.1 hereof.
If the Depositary is unable to sell such property, the Depositary may dispose of
such property for the account of the Holders in any way it deems reasonably
practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of ADSs with
respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least sixty (60) days prior to the intended
date of redemption which notice shall set forth the particulars of the proposed
redemption. Upon timely receipt of (i) such notice and (ii) satisfactory
documentation given by the Company to the Depositary within the terms of Section
5.7 hereof, and only if the Depositary shall have determined that such proposed
redemption is practicable, the Depositary shall provide to each Holder a notice
setting forth the intended exercise by the Company of the redemption rights and
any other particulars set forth in the Company's notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company the Deposited
Securities in respect of which redemption rights are being exercised against
payment of the applicable redemption price. Upon receipt of confirmation from
the Custodian that the redemption has taken place and that funds representing
the redemption price have been received, the Depositary shall convert, transfer,
and distribute the proceeds (net of applicable (a) fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel
ADRs, if applicable, upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 hereof. 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 Section 4.8 hereof and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Deposited
Securities represented by each ADS redeemed.
Section 4.8 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
31
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 applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of this ADS 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 Depositary shall determine that in its judgment 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 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of ADSs
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent,
32
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in The Republic of
France. Subject to applicable law and the provisions of Section 4.1 through 4.8
and to the other terms and conditions of this ADS 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 4.10 Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9
hereof. The Depositary shall, if requested by the Company in writing in a timely
manner, at the Company's expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) an English summary of such
notice of meeting or solicitation of consent or proxy in the format provided by
the Company for such purposes, (b) a statement that the Holders at the close of
business on the ADS Record Date ("Voters") will be entitled, subject to French
law, the Articles of Association of the Company, the provisions of this ADS
Deposit Agreement, the ADR representing the Voters' ADSs and the provisions of
or governing the Deposited Securities (which provisions, if any, shall be
summarized in English in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs, by means of voting by
mail (formulaire de vote par correspondence) or by proxy (formulaire de vote par
procuration), and (c) a voting instruction card (including a formulaire de vote
par correspondence and a formulaire de vote par procuration) and all other
information, authorizations and certifications required under French law to
allow Voters to vote Shares in registered form and Shares in bearer form to be
prepared by the Depositary and the Company (a "Voting Instruction Card"). Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from a Holder
of ADSs as of the ADS Record Date of Voting Instruction Cards in the manner
specified by the Depositary on or before the response date established for such
purpose (the "Receipt Date") (which shall be at least five (5) calendar days
prior to the date of the meeting), the Depositary shall forward, as soon as
practicable, the number and nature of ADSs voted to the Custodian, shall retain
Voting Instructions Cards received by the Depositary for three (3) years, and
shall furnish such cards upon request to the Company.
The Company has informed the Depositary that, as of the date hereof, under
French company law and the Company's Articles of Association, a precondition for
exercising any voting rights 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 five (5) days prior to the date of the stockholders' meeting or, in the
case of a holder of Shares in bearer form, such holder shall request its
accredited financial intermediary to issue, and shall provide to the Company, a
certificat d'immobilisation de titres au porteur for such Shares evidencing the
immobilization of its Shares until the time fixed for such meeting, at least
five (5) days prior to the date of the meeting. Pursuant to these requirements,
33
a Voter who desires to exercise its voting rights with respect to ADSs
representing Shares in registered form is required to (a) be registered in the
share register of the Company, (b) complete, sign and return the Voting
Instruction Card to the Depositary by the Receipt Date, and (c) instruct the
Depositary to request that the Custodian deposit the formulaire de vote par
correspondence or the formulaire de vote par procuration with the Company, at
least five (5) days prior to the date of the stockholder's meeting.
Pursuant to these requirements, a Voter who desires to exercise its voting
rights with respect to ADSs representing Shares in bearer form is required to
comply with one of two procedures, depending on whether its ADSs are recorded in
its name on the books of the Depositary. With respect to ADRs which are recorded
in a Voter's name on the books of the Depositary, a Voter that desires to
exercise its voting rights is required to (a) instruct the Depositary to block
the transfer of its ADSs until the completion of such meeting, (b) complete,
sign and return the Voting Instruction Card to the Depositary by the Receipt
Date, and (c) instruct the Depositary to (i) furnish the Custodian with any
information required in accordance with French law or the Company's Articles of
Association, (ii) notify the Custodian that the transfer of such ADSs has been
blocked, (iii) request that the Custodian issue a certificat d'immobilisation de
titres au porteur with respect to such Shares and (iv) request that the
Custodian deposit such certificat d'immobilisation together with a formulaire de
vote par correspondence or a formulaire de vote par procuration with the Company
at least five (5) calendar days prior to the date of the meeting and give notice
to the Company of such Voter's intention to vote. With respect to ADSs which are
not recorded in a Voter's name on the books of the Depositary, a Voter that
desires to exercise its voting rights is required to deposit the relevant number
of ADSs in a blocked account established for such purpose by the Depositary with
DTC for a period to commence on a date to be specified (which date will be at
least five (5) days prior to the date of the stockholders' meeting) until the
completion of such meeting (the "Blocked Period") and to comply with clauses (b)
and (c) of the preceding sentence.
Upon receipt by the Depositary of (i) a properly completed Voting
Instruction Card on or before the Receipt Date, and (ii) evidence satisfactory
to the Depositary that the applicable conditions of the preceding paragraph have
been satisfied, the Depositary shall endeavor, insofar as practicable and
permitted under any applicable provisions of French law and the Company's
Articles of Association, to cause to be voted the Shares represented by such
ADSs in accordance with any non-discretionary instructions set forth in such
Voting Instruction Card. The Depositary will only cause to be voted Shares
represented by ADSs in respect of which a properly completed Voting Instruction
Card has been received and only in accordance with the instructions contained in
the Voting Instruction Card. Notwithstanding the foregoing, if the Depositary
timely receives from a Holder (who has otherwise satisfied all conditions to
voting contemplated herein) voting instructions which fail to specify the manner
in which the Depositary is to vote the Deposited Securities represented by such
Holder's ADSs, the Depositary will deem such Holder (unless otherwise specified
in the notice distributed to Holders) to have instructed the Depositary to vote
in favor of all resolutions proposed and agreed by the Company's board of
directors and against all others. The Depositary will not knowingly take any
action to impair its ability to cause to be voted the number of Shares necessary
to carry out the instructions of all Beneficial Owners. In the case of a Voting
34
Instruction Card received in respect of any holder of ADSs who is not the
Beneficial Owner of the ADSs on the books of the Depositary, the Depositary will
not cause to be voted the number of Shares represented by such ADSs unless the
Depositary has received evidence that such number of ADSs has been deposited in
a blocked account for the Blocked Period. The Depositary will not cause to be
voted Shares represented by ADSs in respect of which the Voting Instruction Card
is improperly completed or in respect of which (and to the extent) the voting
instructions included in the Voting Instruction Card are illegible or unclear.
The Depositary will not charge any fees in connection with the foregoing
transactions to enable any Holder to exercise its voting rights under this ADS
Deposit Agreement.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. Deposited Securities represented by ADSs for
which no timely voting instructions are received by the Depositary from the
Holder shall not be voted.
Subject to applicable laws or rules of any securities exchange on which
the Deposited Securities are listed or traded, at least three (3) Business Days
prior to the date of a meeting, the Depositary shall, unless the Company has
agreed to a later Receipt Date, deliver the Company a tabulation of the voting
instructions received from Holders of ADSs, if any, and the Depositary shall
vote, or cause to be voted, the Deposited Securities represented by such
Holders' ADSs in accordance with such instructions.
Notwithstanding anything else contained in this ADS Deposit Agreement or
any ADR to the contrary, the Depositary and the Company may, by agreement
between them, with notice to the Holders, modify, amend or adopt additional
voting procedures from time to time as they determine may be necessary or
appropriate (subject, in each case, to the terms of Sections 6.1 and 7.8
hereof).
Notwithstanding anything else contained in this ADS 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. There
can be no assurance that Holders generally or any Holder in particular will
receive the notice described above within sufficient time to enable the Holder
to return voting instructions to the Depositary or otherwise satisfy the
conditions to voting their ADSs in a timely manner.
Section 4.11 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 this ADS Deposit
Agreement, and the ADRs shall, subject to the provisions of this ADS Deposit
35
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 this ADS Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, 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 contained in
Exhibit A hereto, specifically describing such new Deposited Securities or
corporate change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in the event
that any security so received may not lawfully be treated as new Deposited
Securities or may not be lawfully distributed to Holders, the Depositary may,
with the Company's approval, and shall, if the Company requests, 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 upon
an averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1 hereof. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to any Holders in general or to any Holder in particular, (ii) any foreign
exchange exposure or loss incurred any connection with such sale, or (iii) any
liability to the purchaser of such securities.
Section 4.12 Available Information. 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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ and
may be retrieved from the Commission's website (▇▇▇.▇▇▇.▇▇▇).
Section 4.13 Reports. 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 when furnished by the Company pursuant
to Section 5.6 hereof.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders.
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Section 4.15 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. 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. In
accordance with instructions from the Company and to the extent practicable, 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. 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 Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Depositary and the Company shall have no obligations or
liability to any person if any Holder or Beneficial Owner fails to provide such
information or if such information does not reach the relevant tax authorities
in time for any Holder or Beneficial Owner to obtain the benefit of any tax
treaty. The Holders and Beneficial Owners shall indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
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
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. Neither 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 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
37
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.
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" for which such Beneficial Owners may be eligible from French Treasury.
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 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 is paid. 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 hereof.
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 Owners to be subject to a reduced withholding tax rate of 15% or such
other reduced rate, if available, at the time dividends are paid. In connection
therewith, the Depositary shall take reasonable steps to provide eligible U.S.
resident Holders 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 this ADS 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 this ADS Deposit Agreement.
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The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times 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 this ADS 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 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. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this ADS Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this ADS Deposit Agreement, 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 the possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association 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, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this ADS Deposit Agreement or in the
Articles of Association 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 this
ADS Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of this ADS
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.
39
No disclaimer of liability under the Securities Act is intended by any
provision of this ADS Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under this ADS Deposit
Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the
Company and the Depositary agree to perform their respective obligations
specifically set forth in this ADS Deposit Agreement or the applicable ADRs
without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the ADSs,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote or give or withhold consent in respect of any of
the Deposited Securities, or for the manner in which any vote is cast consent is
given or withheld or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of this ADS 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 this ADS Deposit Agreement or for the
failure or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder 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 (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
40
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9 hereof). 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 Sections 5.8 and 5.9
hereof), (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 ADSs and such other information
relating to ADSs 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.
Section 5.5 The Custodian. The Depositary has initially appointed Citibank
International Plc - Paris branch as Custodian for the purpose of this ADS
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 Shares 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 no other Custodian has
previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian that is organized under the laws of The Republic of France.
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 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 ADSs, 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
41
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.
Section 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
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 shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Association of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) other notices,
reports and communications which are made generally available by the Company to
holders of its Shares or other Deposited Securities and (b) the Company's annual
and semi-annual reports prepared in accordance with the applicable requirements
of the Commission. Any such notices, reports and communications furnished to the
Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission. The Depositary 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 Company has
delivered to the Depositary and the Custodian a copy of the Company's Articles
of Association along with the provisions of or governing the Shares and any
other Deposited Securities issued by the Company in connection with such Shares,
and promptly upon any amendment thereto or change therein, the Company shall
deliver to the Depositary and the Custodian a copy of such amendment thereto or
change therein. The Depositary may rely upon such copy for all purposes of this
ADS Deposit Agreement.
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 ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (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 dividend of cash or Shares, (vi) a redemption of Deposited Securities,
42
(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 obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act and the
securities laws of the states of the U.S.). In support of the foregoing, the
Company will furnish to 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 or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of French
counsel 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 this ADS
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 this ADS Deposit Agreement,
nothing in this ADS Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary or the Custodian, provided, that the Custodian is a Citibank
branch or Affiliate at the time of such act or omission, under the terms hereof
due to the negligence or bad faith of the Depositary or the Custodian.
43
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this ADS Deposit Agreement, the ADRs, the ADSs, the Shares, or
any Deposited Securities, in any such case (i) by the Depositary, the Custodian
or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent such loss, liability, tax, charge or expense is
due to the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of
this ADS Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1 hereof. The Depositary shall provide, without
charge, a copy of its latest fee schedule to anyone upon request.
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 charges may at any time and from time to time
be changed by agreement 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.
44
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this ADS Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, 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 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, 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 and
Shares 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 and
Shares 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 the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
45
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder (except under the circumstances contemplated in Section 2.13
hereof) and, to the extent practicable, shall require each of such persons to
represent in writing that such person will not deposit Restricted Securities
hereunder (except under the circumstances contemplated in Section 2.13 hereof).
Section 5.12 Retention of Depositary Documents. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this ADS Deposit Agreement at the times permitted by the laws
or regulations governing the Depositary unless the Company requests that such
papers be retained for a longer period or turned over to the Company or to a
successor depositary.
ARTICLE VI.
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the ADRs outstanding at any time, the
provisions of this ADS Deposit Agreement and the form of ADR attached hereto and
to be issued under the terms hereof 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
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 ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. 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
settled 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
ADSs, to consent and agree to such amendment or supplement and to be bound by
this ADS Deposit Agreement and the ADR, if applicable, as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such ADS 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
46
body should adopt new laws, rules or regulations which would require an
amendment of, or supplement to, this ADS Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement this ADS
Deposit Agreement and the ADRs at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to this ADS Deposit Agreement
and the ADRs 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, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this ADS Deposit Agreement by providing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) 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 in Section 5.4 hereof, the
Depositary may terminate this ADS Deposit Agreement by providing notice of such
termination to the Holders of all ADRs then outstanding at least thirty (30)
days prior to the date fixed for such termination. On, and for six months after,
the date of termination of this ADS Deposit Agreement, the Holder of an ADS
will, upon surrender of such ADS at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of ADSs referred
to in Section 2.7 hereof 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 ADS. If any ADSs shall remain outstanding after
the date of termination of this ADS Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of ADSs, 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 this ADS Deposit
Agreement, except that the Depositary shall continue for six months after the
date of termination to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in this ADS Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.7 hereof, 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 ADSs
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 ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of this ADS 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 this ADS 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 ADSs have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under this ADS Deposit Agreement with respect
to the ADSs, 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 ADS, any
expenses for the account of the Holder in accordance with the terms and
47
conditions of this ADS Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this ADS Deposit
Agreement, the Company shall be discharged from all obligations under this ADS
Deposit Agreement except for its obligations to the Depositary under Sections
5.8, 5.9 and 7.6 hereof.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Counterparts. This ADS 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 this ADS 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. This ADS 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 this ADS
Deposit Agreement. Nothing in this ADS 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 this ADS Deposit Agreement shall
(a) preclude the Depositary or any of its Affiliates from engaging in such
transactions or establishing or maintaining such relationships, or (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 this ADS 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 this
ADS Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of any ADR by acceptance thereof or any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to ▇▇, ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇, or to any
other address which the Company may specify in writing to the Depositary.
48
Any and all notices to be given to the Depositary 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., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: Depositary Receipts Department, 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 or cable, telex or
facsimile transmission, confirmed by letter, 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 this ADS 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 this ADS 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, the Depositary, 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. This ADS 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 this ADS 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).
49
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have 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 ADS 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 Air France (the
"Agent") now at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇,
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 or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in the City of 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.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this ADS Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
50
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, 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, this ADS Deposit Agreement, any ADR or the Deposited
Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of this ADS Deposit Agreement. The provisions of this Section 7.6
shall survive any termination of this ADS Deposit Agreement, in whole or in
part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this ADS 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 this ADS 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.
Section 7.9 French Law References. Any summary of French laws and
regulations and of the terms of the Company's Articles of Association set forth
in this ADS Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this ADS
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of this ADS Deposit Agreement. Neither the Depositary
nor the Company has any obligation under the terms of this ADS Deposit Agreement
to update any such summaries.
Section 7.10 Titles and References. All references in this ADS Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this ADS Deposit Agreement unless expressly provided otherwise. The words "this
ADS Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to this ADS Deposit Agreement as a whole as in effect
between the Company, the Depositary and the Holders and Beneficial Owners of
ADSs and not to any particular subdivision unless expressly so limited. Pronouns
in masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
ADS Deposit Agreement are included for convenience only and shall be disregarded
in construing the language contained in this ADS Deposit Agreement. References
to "applicable laws and regulations" shall refer to laws and regulations
applicable to ADRs, ADSs or Deposited Securities as in effect at the relevant
time of determination, unless otherwise required by law or regulation.
51
IN WITNESS WHEREOF, Air France and CITIBANK, N.A. have duly executed this
ADS 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 issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
AIR FRANCE
By:_______________________________
Name:
Title:
CITIBANK, N.A.
By:_______________________________
Name:
Title:
52
EXHIBIT A
[FORM OF ADR]
Number_____________ CUSIP NUMBER: _____________
American Depositary Shares (each American Depositary Share representing
one (1) Fully Paid Ordinary Share each (euro)8.50 nominal value)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
SOCIETE AIR FRANCE
(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 "ADSs"), representing deposited ordinary
shares, nominal value (euro)8.50 per share, including evidence of rights to
receive such ordinary shares (the "Shares"), of societe Air France, a
corporation incorporated under the laws of The Republic of France (the
"Company"). As of the date of the ADS Deposit Agreement (as hereinafter
defined), each ADS represents one (1) Share deposited under the ADS Deposit
Agreement with the Custodian, which at the date of execution of the ADS Deposit
Agreement is Citibank International Plc - Paris branch (the "Custodian"). The
ADS-to-Share ratio is subject to amendment as provided in Articles IV and VI of
the ADS Deposit Agreement. The Depositary's Principal Office is located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The ADS 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 ADS Deposit Agreement, dated as
of [DATE], 2004 (as amended and supplemented from time to time, the "ADS 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 thereunder.
The ADS 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 ADS 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 ADS Deposit Agreement, shall
be deemed for all purposes to (a) be a party to and bound by the terms of the
ADS 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 ADS 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 ADS 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 summaries of
certain provisions of the ADS Deposit Agreement and the Articles of Association
of the Company (as in effect on the date of the signing of the ADS Deposit
Agreement) and are qualified by and subject to the detailed provisions of the
ADS Deposit Agreement and the Articles of Association, to which reference is
hereby made. All capitalized terms used herein which are not otherwise defined
herein shall have the meanings ascribed thereto in the ADS 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.
(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 ADSs
to the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR evidencing such ADSs) for the purpose of withdrawal of the
Deposited Securities represented thereby, (ii) if applicable and 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 and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
ADS Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this ADR, of the ADS Deposit Agreement, of the Company's
Articles of Association, 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.
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Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs 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) 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 ADS Deposit Agreement, of this ADR, of
the Articles of Association 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 ADS 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 by the Depositary, (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 of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a transfer thereof, (ii) this ADR has been properly
A-3
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 and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
ADS Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this ADR, of the ADS Deposit Agreement, of the Company's
Articles of Association and of applicable law and to any provisions of or
governing the Deposit Securities, 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 by the Depositary), (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 Section 5.9 of, and Exhibit B to,
the ADS Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this ADR, of the ADS Deposit Agreement, of the
Company's Articles of Association and of applicable law and to any provisions of
or governing the Deposit Securities, 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 Section 5.9 of the ADS 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 matter contemplated in the ADS 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 ADS
Deposit Agreement and applicable law.
A-4
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
government or governmental body or commission or any securities exchange upon
which the Shares or ADSs are listed, or under any provision of the ADS 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 (24) hereof. Notwithstanding any
provision of the ADS 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 ADS Deposit Agreement or this ADR, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to applicable law, the rules and requirements of The New York
Stock Exchange, Inc., and of any other stock exchange on which Shares or ADSs
are, or will be, registered, traded or listed or the Articles of Association 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) Limitations on the Right to Own, Transfer or Vote ADSs; Compulsory
Transfer of the Shares.
(a) Acknowledgments and Agreements. Each Holder and Beneficial Owner
acknowledges and agrees that:
(i) each ADS is, and the terms and conditions upon which it is held by
such Holder and Beneficial Owner are, subject to the Articles of Association and
applicable French law (including Articles L. 360-1 to L. 360-4 and R. 360-1 to
R. 360-5 of the French Code of Civil Aviation);
(ii) the Depositary and the Custodian, as registered holders of the Shares
represented by the ADSs, are subject to the 45% Threshold Event Procedures, in
their capacity as representatives of all Holders and Beneficial Owners of ADSs;
A-5
(iii) such Holder's and Beneficial Owner's ADSs represent a direct or
indirect interest in the Shares underlying such ADSs and, as such, the share
capital and voting rights of the Company (except as otherwise provided in the
Articles of Association);
(iv) so long as a 45% Threshold Event shall continue the Company may
implement the 45% Threshold Event Procedures concerning any Holder or Beneficial
Owner upon the terms and conditions contemplated herein and such Holder or
Beneficial Owner shall comply with such 45% Threshold Event Procedures;
(v) to the extent it may legally do so, it will provide certain
information that is requested by the Company under statutory provisions of
French law or the Articles of Association, including, among other matters,
information as to the identity of persons who have interests in the deposited
Shares;
(vi) the Company is entitled to issue formal requests and writs of summons
for the sale of Shares, in one or more phases, in enforcement of the 45%
Limitation and that such formal requests shall be issued by the Company
initially to Non-E.U. Holders and, thereafter, to E.U. Holders; and
(vii) the Shares covered by the formal requests and writs of summons
described in clause (vi) above shall be determined by the Company in reverse
chronological order of registration in the Company's share register, beginning
with the most recently registered shares;
(viii) following application of (vii) above, if more than one shareholder
holds a number of Shares registered on the same date on the books of the Company
and exceeding the balance of the Shares to which the same formal request
procedure is to be applied, such balance shall be split between those holders in
proportion to the Shares concerned.
(b) Specified Holder Non-E.U. 45% Threshold Event Notice. If the
Depositary (or the Custodian or any nominee of the Custodian) as registered
holder of any deposited Shares receives from the Company a Non-E.U. 45%
Threshold Event Notice with respect to the shares underlying ADSs held by a
specified Non-E.U. Holder or Beneficial Owner the Depositary shall:
(i) refuse to register any issuance of ADSs in respect of shares described
in the Non-E.U. 45% Threshold Event Notice to such Non-E.U. Holder and shall
refuse to register any transfer of Non-E.U. ADSs, whose underlying shares are
mentioned in the Non-E.U. 45% Threshold Event Notice, by such Non-E.U. Holder on
the register of the Depositary, in each case, other than in accordance with the
procedures set forth in the French 2003 Air Carrier Law and the Articles of
Association or until the Company has withdrawn the Non-E.U. 45% Threshold Event
Notice in respect of Non-E.U. ADSs;
(ii) deny the voting rights attaching to Non-E.U. ADSs owned by such
Non-E.U. Holder, to the extent that the voting rights of the deposited Shares
underlying such Non-E.U. ADSs are denied to the Depositary as notified in the
Non-E.U. 45% Threshold Event Notice or until the Company has withdrawn the
Non-E.U. 45% Threshold Event Notice in respect of such Non-E.U. ADSs; and
A-6
(iii) send written notice to such Non-E.U. Holder stating, inter alia,
that: (x) the Depositary has received a Non-E.U. 45% Threshold Event Notice, (y)
such Non-E.U. Holder must within 15 days of receipt of the Non-E.U 45% Threshold
Event Notice by the Depositary, sell the Non-E.U. ADSs or underlying Shares (to
the Company's satisfaction), and (z) if the sale provided for in (y) above is
not made to the Company's satisfaction within two (2) months of the Non-E.U. 45%
Threshold Event Notice and if such Non-E.U. 45% Threshold Event Notice has not
been withdrawn,
(A) any or all Shares underlying the Non-E.U. ADSs may be sold pursuant to
the Article 16 of the Articles of Association and French law, and
(B) if any such sale is made, such Non-E.U. ADSs shall thereafter
represent only the right to receive any net cash proceeds received (after
deduction of all applicable fees, taxes and expenses) by the Depositary in
connection with such sale and any unsold Shares and any other Deposited
Securities and, upon surrender of such Non-E.U. ADSs, the Non-E.U. Holder
thereof shall be entitled to withdraw such cash and such underlying Shares and
other Deposited Securities in the manner set forth in Section 2.7 of the ADS
Deposit Agreement.
(c) General Non-E.U. 45% Threshold Event Notice: If the Depositary (or the
Custodian or any nominee of the Custodian) receives a Non-E.U. 45% Threshold
Event Notice that does not contain the information as to specified Non-E.U.
Holders contemplated in paragraph (b) above, the Depositary shall take the
actions contemplated in paragraph (b) above with respect to all Non-E.U. ADSs
except that the Depositary shall (i) apply any denial of voting rights pro rata
to all Non-E.U. ADSs, (ii) give notice to all Holders of Non-E.U. ADSs of
receipt by the Depositary of the Non-E.U. 45% Threshold Event Notice, and (iii)
treat any sale of Shares in connection with the Non-E.U. 45% Threshold Event
Notice as if it were a distribution in cash as provided in Sections 4.1 and 4.8
of the ADS Deposit Agreement.
(d) Specified E.U. 45% Threshold Event Notice. If the Depositary (or the
Custodian or any nominee of the Custodian) as registered holder of any deposited
Shares receives from the Company an E.U. 45% Threshold Event Notice with respect
to the Shares underlying ADSs held by a specified E.U. Holder, the Depositary
shall, in addition to the actions set forth in (b) and (c) above (if specified
by the Company):
(i) refuse to register any issuance of ADSs in respect of shares described
in the E.U. 45% Threshold Event Notice to such E.U. Holder and shall refuse to
register any transfer of E.U. ADSs, whose underlying Shares are mentioned in the
E.U. 45% Threshold Event Notice, by such E.U. Holder on the register of the
Depositary, in each case, other than in accordance with the procedures set forth
in the French 2003 Air Carrier Law and the Articles of Association or until the
Company has withdrawn the E.U. 45% Threshold Event Notice in respect of E.U.
ADSs;
A-7
(ii) deny the voting rights attaching to E.U. ADSs owned by the specified
E.U. Holder, to the extent that the voting rights of the deposited Shares
underlying such E.U. ADSs are denied to the Depositary as notified in the E.U.
45% Threshold Event Notice or until the Company has withdrawn the E.U. 45%
Threshold Event Notice in respect of E.U. ADSs; and
(iii) send written notice to such E.U. Holder stating, inter alia, that:
(x) the Depositary has received an E.U. 45% Threshold Event Notice, (y) such
E.U. Holder must within 15 days of receipt of the E.U 45% Threshold Event Notice
by the Depositary, sell the E.U. ADSs or underlying Shares (to the Company's
satisfaction), and (z) if the sale provided for in (y) above is not made to the
Company's satisfaction within two (2) months of the E.U. 45% Threshold Event
Notice and if such E.U. 45% Threshold Event Notice has not been withdrawn,
(A) any or all Shares underlying the E.U. ADSs may be sold pursuant to
Article 16 of the Articles of Association and French law, and
(B) if any such sale is made, such E.U. ADSs shall thereafter represent
only the right to receive any net cash proceeds received (after deduction of all
applicable fees, taxes and expenses) by the Depositary in connection with such
sale and any unsold Shares and any other Deposited Securities and, upon
surrender of such E.U. ADSs, the E.U. Holder thereof shall be entitled to
withdraw such cash and such underlying Shares and other Deposited Securities in
the manner set forth in Section 2.7 of the ADS Deposit Agreement.
(e) General E.U. 45% Threshold Event Notice. If the Depositary (or the
Custodian or any nominee of the Custodian) receives an E.U. 45% Threshold Event
Notice that does not contain the information as to specified E.U. Holders
contemplated in paragraph (d) above, the Depositary shall, in addition to the
actions set forth in (b) and (c) above (if specified by the Company), take the
actions contemplated in paragraph (d) above with respect to all E.U. ADSs except
that the Depositary shall (i) apply any denial of voting rights pro rata to all
E.U. ADSs, (ii) give notice to all Holders of E.U. ADSs of receipt by the
Depositary of the E.U. 45% Threshold Event Notice, and (iii) treat any sale of
Shares in connection with the E.U. 45% Threshold Event Notice as if it were a
distribution in cash as provided in Sections 4.1 and 4.8 of the ADS Deposit
Agreement.
(f) Modifications of Non-E.U. 45% Threshold Event Notice or E.U 45%
Threshold Event Notice. If the Depositary at any time receives a notice from the
Company referring to a Non-E.U. 45% Threshold Event Notice or a E.U. 45%
Threshold Event Notice, the Depositary shall, to the extent not prohibited by
law and at the expense of the Company, take action in accordance with such
Non-E.U. 45% Threshold Event Notice or E.U. 45% Threshold Event Notice, as the
case may be, as modified from and after the receipt of such notice by the
Depositary.
(g) Cooperation. At the Company's expense, the Depositary will cooperate
in forwarding to Holders or to the Company, as the case may be, communications
relating to the application of the provisions of this paragraph (6). Holders
seeking to communicate with the Company on matters relating to the application
of the provisions of this paragraph (6) may send their communications to the
Depositary for forwarding at their own risk to the Company.
A-8
(7) Disclosure of Interest. Notwithstanding any other provision of the ADS
Deposit Agreement or this ADR, each Holder and Beneficial Owner agrees, and the
Depositary agrees, to comply with the Company's Articles of Association, 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. As of the date of the Agreement,
such disclosure requirements are as follows:
Pursuant to French law and the Company's Articles of Association, any
person or entity that becomes the owner, directly or indirectly, alone or in
concert with other persons, of more than one-twentieth, one-tenth, one-fifth,
one-third, one-half or two-thirds of the share capital or voting rights (or
securities or voting rights representing Shares (which includes ADSs), as
discussed below in this Article, must so notify the Company by registered letter
within five (5) trading days, and the Autorite des Marches Financiers within
five (5) trading days, of the date such threshold has been crossed, of the
number of Shares it holds or is entitled to hold and the voting rights attached
thereto. A holder of Shares is also required to notify the Company and the
Autorite des Marches Financiers if the percentage of share capital or voting
rights owned by such holder falls below the levels described in the previous
sentence. In addition, any person acquiring more than 10% or 20% of the
outstanding share capital or voting rights of the Company must file a report
within 10 trading days with the Company and the Autorite des Marches Financiers,
which makes such report available to the public by means of a notice. This
report must state whether the acquiror is acting alone or in concert with others
and indicate its intention for the following 12-month period, including whether
or not it intends to continue its purchases, to acquire the control of the
Company or to seek nomination (for itself or for others) to the Company's board
of directors. The acquiror must also publish a press release stating its
intentions in a prescribed manner. The acquiror may modify its initial
intentions in a new statement, provided that this is done on the basis of
significant changes in its own situation or those of its shareholders. Upon any
change in intention, it must file a new report. Under the regulations of the
Autorite des Marches Financiers and subject to limited exemptions, any person,
or persons acting in concert, who comes to own more than 33.3% of the share
capital or voting rights of the Company must initiate a public tender offer for
the remainder of the share capital of the Company. In order to permit holders of
share capital or voting rights to give the notice required by law, the Company
is obligated to file with the Bulletin des Annonces Legales Obligatoires
("BALO") and with the Autorite des Marches Financiers, within five (5) calendar
days of the Company's annual ordinary general meeting, information with respect
to the total number of votes available as of the date of such meeting. In
addition, if the number of available votes changes by 5% or more, the Company is
required to publish in the BALO, and to file with the Autorite des Marches
Financiers within fifteen (15) calendar days of such change, a notification of
the number of votes then available.
A-9
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.
In addition, the Company's Articles of Association, as in effect as of the
date hereof, provide that any shareholder who directly or indirectly, acting
alone or in concert with others, acquires ownership or control of Shares (which
includes Shares represented by ADSs) representing 0.5% or any multiple thereof
of the Company's share capital and/or voting rights, or whose shareholding falls
below any such limit, must inform the Company, within five (5) days of the
crossing of the relevant threshold up to and including the time when such
Holder's or Beneficial Owner's ownership equals 50% of the Company's share
capital and/or voting rights, of the number of Shares then owned by such
shareholder. Failure to comply with these notification requirements may result
in the Shares in excess of the relevant threshold being deprived of voting
rights for all shareholder meetings until the end of a two-year (2) period
following the date on which the owner thereof has complied with such
notification requirements. Notification shall be made by registered letter with
acknowledgment of receipt, stating whether or not the Shares are held on behalf
of, under the control of, or in concert with, other legal or natural persons and
indicating the date of acquisition or disposition of the Shares triggering such
notification and the amount of Shares and voting rights then held by such
person.
In the event that a Holder or Beneficial Owner fails to comply with the
requirements of the Company's Articles of Association set forth in the preceding
paragraph, such Holder or Beneficial Owner, upon request of a holder or holders
of 0.5% or more of the share capital of the Company, shall not be permitted, in
accordance with, and subject to the limitations provided under French law, to
exercise voting rights with respect to any Shares or shares assimilated to
Shares as to which any required disclosure (as set forth in the preceding
paragraph) has not been made. Such disqualification shall only apply to Shares
in excess of the applicable threshold.
Any person or entity that becomes the Holder or Beneficial Owner, directly
or indirectly, or in concert with other shareholders of shares or Shares
assimilated to Shares (which include ADSs), as discussed above in this
paragraph, representing 2% or more of the share capital of the Company must
provide the Company, within five (5) calendar days of reaching such ownership
level, with a written notice requesting that all such Shares, as well as any
Shares subsequently acquired in excess of that amount, be in registered form.
Additionally, pursuant to Article 9 of the Articles of Association, Air France's
board of directors may, under certain circumstances, lower such ownership level
to 10,000 Shares or shares assimilated to Shares (which include ADSs) or extend
these notification requirements to all shareholders. In order to facilitate
compliance with these notification requirements, a Holder of ADSs may deliver to
A-10
the Depositary its request that a number of Shares represented by such Holder's
or Beneficial Owner's ADSs be denominated in registered form. Upon receiving
such request, as soon as practicable thereafter, the Depositary shall request
the Custodian to denominate such Shares in registered form and to thereafter
promptly notify the Depositary and the Company that such change has been
effectuated at such Holder's or Beneficial Owner's request.
In addition, a non-resident of France, a non-French company or any group
of non-French residents or non-French companies acting in concert or any foreign
controlled resident must file a declaration administrative, or administrative
notice, with French authorities if its actions would result in (i) its
acquisition of more than 33.33% of the share capital or voting rights of the
Company, or (ii) an increase in ownership above 33.33% of the share capital or
of the voting rights of the Company, unless such non-French resident, group of
non-French residents or non-French company or group of non-French companies
already controls more than half of the share capital of the Company or voting
rights prior to such acquisition or increase. Under such existing administrative
rulings, ownership of a French company in which 33.33% or more of the share
capital or voting rights are held by a foreign national gives rise to an
obligation to file a declaration administrative with the French authorities.
The above provisions relating to Shares or voting rights held by a person
or an entity also apply to (i) Shares or voting rights held by another person or
entity on behalf of such person or entity, (ii) Shares or voting rights held by
any company which is directly or indirectly controlled by such person or entity,
(iii) Shares or voting rights held by a third party acting in concert with such
person or entity or (iv) Shares or voting rights that such person or entity, or
any person or entity referred to in (i), (ii) or (iii) above, is entitled to
acquire at its sole option by virtue of an agreement.
In order to facilitate compliance with the notification requirements, a
Holder or Beneficial Owner may deliver any notification to the Depositary with
respect to Shares represented by ADSs evidenced by ADRs, and the Depositary
shall, as soon as practicable, forward such notification to the Company
(8) Liability of Holder for Taxes and Other Charges. Any French or other
tax or other governmental charge payable by the Custodian or by the Depositary
with respect to any ADR, 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 withhold or deduct from any distributions made in respect
of Deposited Securities and may 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. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, deliver ADRs, register the
transfer of ADSs, register the split-up or combination of ADRs and (subject to
A-11
paragraph (25) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. 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 obtained for such
Holder and/or Beneficial Owner.
(9) Representations and Warranties of Depositors. Each person depositing
Shares under the ADS 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
such deposit will not be, Restricted Securities (except as contemplated in
Section 2.13 of the ADS 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.
(10) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, 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, the terms of
the ADS Deposit Agreement or the ADS as evidenced by this ADR, 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 Company or of the Share 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 ADS 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 (25) 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.
A-12
(11) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs are
issued upon the deposit of Shares, a fee not in excess of U.S. $5.00 per 100
ADSs (or fraction thereof) so issued under the terms of the ADS Deposit
Agreement (excluding issuances pursuant to paragraphs (iii) and (v) below);
(ii) Cancellation Fee: 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 fraction thereof) so surrendered;
(iii) Dividend Fee: 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
specified in (i) above shall be payable in respect of ADS distributions pursuant
to stock dividends (or other free distributions of stock) and the fees specified
in (iv) below shall be payable in respect of distributions of cash;
(iv) Cash Distribution Fee: to any Holder of ADRs, a fee not in excess of
U.S. $2.00 per 100 ADSs (or fraction thereof) held for the distribution of cash
proceeds (i.e., upon the sale of rights and other entitlements);
(v) Rights Exercise Fee: to any Holder of ADRs, a fee not in the excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) issued upon the exercise of rights
to purchase additional ADSs;
(vi) Other Distribution Fee: to any Holder of ADRs receiving a
distribution of securities other than ADSs or rights to purchase additional
ADSs, a fee not in excess of U.S. $5.00 per unit of 100 securities (or fraction
thereof) distributed;
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the purposes of
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 ADS Deposit Agreement to be at the expense of
the person depositing or withdrawing Shares or Holders and Beneficial Owners of
ADSs;
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(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, the Custodian or
any nominee in connection with the delivery or servicing of Deposited
Securities.
Any other charges and expenses of the Depositary under the ADS 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 (23) 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.
(12) 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 the 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 liability under the ADS
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.
(13) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the ADS 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.
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(14) 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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ and may be retrieved from the Commission's website
(▇▇▇.▇▇▇.▇▇▇). 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 Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times 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 ADS 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
(25) hereof.
UNDER FRENCH LAW AND THE COMPANY'S ARTICLES OF ASSOCIATION, THE HOLDER OF
THIS ADR MAY HAVE CERTAIN DISCLOSURE OBLIGATIONS, AS SET FORTH IN PARAGRAPH (7)
HEREOF. FAILURE TO COMPLY WITH SUCH OBLIGATIONS COULD AFFECT SUCH HOLDER'S
VOTING RIGHTS.
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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-15
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE ADS DEPOSIT AGREEMENT
(15) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the ADS Deposit Agreement,
the Depositary will, subject to French laws and regulations, (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 ADS 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 ADS Deposit Agreement), (ii) if
applicable, establish the ADS Record Date upon the terms described in Section
4.9 of the ADS 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 on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the ADS Deposit Agreement, establish the ADS Record
Date upon the terms described in Section 4.9 of the ADS Deposit Agreement and
either (i) the Depositary shall, subject to Section 5.9 of the ADS Deposit
Agreement, 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 other terms of the ADS Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
A-16
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 ADS Deposit
Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under Section 5.7 of the ADS Deposit Agreement,
has furnished an opinion of U.S. counsel determining that Shares must be
registered under the Securities Act or other laws in order to be distributed to
Holders (and no such registration statement has been declared effective), 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 described in
Section 4.1 of the ADS Deposit Agreement. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions
of the ADS Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the ADS Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the ADS Deposit
Agreement, establish an ADS Record Date according to paragraph (17) and
establish procedures to enable the Holder hereof 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. 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 described in the ADS Deposit
Agreement. If such elective distribution is not reasonably practicable or if the
Depositary did not receive satisfactory documentation set forth in the ADS
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 ADS Deposit Agreement. Nothing herein
or in the ADS 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.
A-17
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the ADS Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the ADS Deposit Agreement) and establish procedures (x) to
distribute 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 ADS 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 satisfactory documentation
required by the ADS Deposit Agreement or determines it is not 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 ADS 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 ADS 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, in
A-18
each case satisfactory to the Depositary, 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. 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 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.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity be able to receive or exercise rights
on the same terms and conditions as the holders of Shares or be able to exercise
such rights. Nothing herein or in the ADS 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.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the ADS Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable. Upon satisfaction of such conditions, the Depositary shall
distribute the property so received to the Holders of record, as of the ADS
Record Date (established upon the terms described in Section 4.9 of the ADS
Deposit Agreement), in proportion to the number 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 the conditions above are not satisfied, the Depositary shall 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 ADS
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
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(16) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is 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 from the
Custodian that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer, and
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, if
applicable, upon delivery of such ADSs by Holders thereof upon the terms of the
ADS 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 ADS
Deposit Agreement and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(17) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADRs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this ADR and the ADS Deposit
Agreement, only the Holders of ADRs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distributions, to give such
instructions, to receive such notice or solicitation, or otherwise take action.
(18) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with paragraph
(17). The Depositary shall, if requested by the Company in writing in a timely
manner, at the Company's expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) an English summary of such
notice of meeting or solicitation of consent or proxy in the format provided by
the Company for such purposes, (b) a statement that the Holders at the close of
business on the ADS Record Date ("Voters") will be entitled, subject to French
A-20
law, the Articles of Association of the Company, the provisions of the ADS
Deposit Agreement, the ADR representing the Voters' ADSs and the provisions of
or governing the Deposited Securities (which provisions, if any, shall be
summarized in English in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs, by means of voting by
mail (formulaire de vote par correspondence) or by proxy (formulaire de vote par
procuration), and (c) a voting instruction card (including a formulaire de vote
par correspondence and a formulaire de vote par procuration) and all other
information, authorizations and certifications required under French law to
allow Voters to vote Shares in registered form and Shares in bearer form to be
prepared by the Depositary and the Company (a "Voting Instruction Card"). Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from a Holder
of ADSs as of the ADS Record Date of Voting Instruction Cards in the manner
specified by the Depositary on or before the response date established for such
purpose (the "Receipt Date") (which shall be at least five (5) calendar days
prior to the date of the meeting), the Depositary shall forward, as soon as
practicable, the number and nature of ADSs voted to the Custodian, shall retain
Voting Instructions Cards received by the Depositary for three (3) years, and
shall furnish such cards upon request to the Company. Notwithstanding the
foregoing, if the Depositary timely receives from a Holder (who has otherwise
satisfied all conditions to voting contemplated herein) voting instructions
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of all resolutions proposed and
agreed by the Company's board of directors and against all others. The
Depositary will not knowingly take any action to impair its ability to cause to
be voted the number of Shares necessary to carry out the instructions of all
Beneficial Owners. In the case of a Voting Instruction Card received in respect
of any holder of ADSs who is not the Beneficial Owner of the ADSs on the books
of the Depositary, the Depositary will not cause to be voted the number of
Shares represented by such ADSs unless the Depositary has received evidence that
such number of ADSs has been deposited in a blocked account for the Blocked
Period. The Depositary will not cause to be voted Shares represented by ADSs in
respect of which the Voting Instruction Card is improperly completed or in
respect of which (and to the extent) the voting instructions included in the
Voting Instruction Card are illegible or unclear. The Depositary will not charge
any fees in connection with the foregoing transactions to enable any Holder to
exercise its voting rights under the ADS Deposit Agreement.
The Company has informed the Depositary that, as of the date hereof, under
French company law and the Company's Articles of Association, a precondition for
exercising any voting rights 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 five (5) days prior to the date of the stockholders' meeting or, in the
case of a holder of Shares in bearer form, such holder shall request its
accredited financial intermediary to issue, and shall provide to the Company, a
certificat d'immobilisation de titres au porteur for such Shares evidencing the
immobilization of its Shares until the time fixed for such meeting, at least
A-21
five (5) days prior to the date of the meeting. Pursuant to these requirements,
a Voter who desires to exercise its voting rights with respect to ADSs
representing Shares in registered form is required to (a) be registered in the
share register of the Company, (b) complete, sign and return the Voting
Instruction Card to the Depositary by the Receipt Date, and (c) instruct the
Depositary to request that the Custodian deposit the formulaire de vote par
correspondence or the formulaire de vote par procuration with the Company, at
least five (5) days prior to the date of the stockholder's meeting.
Pursuant to these requirements, a Voter who desires to exercise its voting
rights with respect to ADRs representing Shares in bearer form is required to
comply with one of two procedures, depending on whether its ADSs are recorded in
its name on the books of the Depositary. With respect to ADRs which are recorded
in a Voter's name on the books of the Depositary, a Voter that desires to
exercise its voting rights is required to (a) instruct the Depositary to block
the transfer of its ADSs until the completion of such meeting, (b) complete,
sign and return the Voting Instruction Card to the Depositary by the Receipt
Date, and (c) instruct the Depositary to (i) furnish the Custodian with any
information required in accordance with French law or the Company's Articles of
Association, (ii) notify the Custodian that the transfer of such ADSs has been
blocked, (iii) request that the Custodian issue a certificat d'immobilisation de
titres au porteur with respect to such Shares and (iv) request that the
Custodian deposit such certificat d'immobilisation together with a formulaire de
vote par correspondence or a formulaire de vote par procuration with the Company
at least five (5) calendar days prior to the date of the meeting and give notice
to the Company of such Voter's intention to vote. With respect to ADSs which are
not recorded in a Voter's name on the books of the Depositary, a Voter that
desires to exercise its voting rights is required to deposit the relevant number
of ADSs in a blocked account established for such purpose by the Depositary with
The Depository Trust Company ("DTC") for a period to commence on a date to be
specified (which date will be at least five (5) days prior to the date of the
stockholders' meeting) until the completion of such meeting (the "Blocked
Period") and to comply with clauses (b) and (c) of the preceding sentence.
Upon receipt by the Depositary of (i) a properly completed Voting
Instruction Card on or before the Receipt Date, and (ii) evidence satisfactory
to the Depositary that the applicable conditions of the preceding paragraph have
been satisfied, the Depositary shall endeavor, insofar as practicable and
permitted under any applicable provisions of French law and the Company's
Articles of Association, to cause to be voted the Shares represented by such
ADSs in accordance with any non-discretionary instructions set forth in such
Voting Instruction Card. The Depositary will only cause to be voted Shares
represented by ADSs in respect of which a properly completed Voting Instruction
Card has been received and only in accordance with the instructions contained in
the Voting Instruction Card. The Depositary will not knowingly take any action
to impair its ability to cause to be voted the number of Shares necessary to
carry out the instructions of all Beneficial Owners. In the case of a Voting
Instruction Card received in respect of any holder of ADSs who is not the
A-22
Beneficial Owner of the ADSs on the books of the Depositary, the Depositary will
not cause to be voted the number of Shares represented by such ADSs unless the
Depositary has received evidence that such number of ADSs has been deposited in
a blocked account for the Blocked Period. The Depositary will not cause to be
voted Shares represented by ADSs in respect of which the Voting Instruction Card
is improperly completed or in respect of which (and to the extent) the voting
instructions included in the Voting Instruction Card are illegible or unclear.
The Depositary will not charge any fees in connection with the foregoing
transactions to enable any Holder to exercise its voting rights under the ADS
Deposit Agreement.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. Deposited Securities represented by ADSs for
which no timely voting instructions are received by the Depositary from the
Holder shall not be voted.
Subject to applicable laws or rules of any securities exchange on which
the Deposited Securities are listed or traded, at least three (3) Business Days
prior to the date of a meeting, the Depositary shall, unless the Company has
agreed to a later Receipt Date, deliver the Company a tabulation of the voting
instructions received from Holders of ADSs, if any, and the Depositary shall
vote, or cause to be voted, the Deposited Securities represented by such
Holders' ADSs in accordance with such instructions.
Notwithstanding anything else contained in the ADS Deposit Agreement or in
any ADR to the contrary, the Depositary and the Company may, by agreement
between them, with notice to the Holders, modify, amend or adopt additional
voting procedures from time to time as they determine may be necessary or
appropriate (subject, in each case, to the terms of Sections 6.1 and 7.8 of the
ADS Deposit Agreement).
Notwithstanding anything else contained in the ADS 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.
(19) 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 ADS Deposit Agreement, and the ADRs shall,
subject to the provisions of the ADS 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 ADS Deposit Agreement and receipt of an
opinion of counsel to the Company satisfactory to the Depositary that such
distributions are not in violation of any applicable laws or regulations,
execute and deliver additional ADRs as in the case of a stock dividend on the
A-23
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 contained in this Exhibit A to the
ADS Deposit Agreement, specifically describing such new Deposited Securities or
corporate change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in the event
that any security so received may not lawfully be treated as new Deposited
Securities or may not be lawfully distributed to Holders, the Depositary may,
with the Company's approval and shall, if the Company requests, 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 upon
an averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
ADS Deposit Agreement. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such securities
available to any 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.
(20) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the ADS Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the ADS 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 Articles of Association 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, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the ADS Deposit Agreement or in the
Articles of Association 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
ADS Deposit Agreement, made available to Holders of ADSs or (v) for any
consequential or punitive damages for any breach of the terms of the ADS Deposit
A-24
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 ADS Deposit Agreement or this ADR.
(21) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the ADS 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 ADS 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 or give or withhold consent in respect of any of the
Deposited Securities, or for the manner in which any vote is cast consent is
given or withheld or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of this ADS 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 ADS Deposit Agreement or for the
failure or timeliness of any notice from the Company.
(22) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the ADS
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 ADS 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 later of (i) the
90th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 of the ADS
Deposit Agreement), or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as provided in the ADS Deposit
Agreement. In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
the ADS Deposit Agreement). 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 ADS Deposit Agreement),
A-25
(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.
(23) Amendment/Supplement. Subject to the terms and conditions of this
paragraph (23), the ADS Deposit Agreement and applicable law, this ADR and any
provisions of the ADS 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
settled 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
ADSs, to consent and agree to such amendment or supplement and to be bound by
the ADS 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
ADS Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the ADS Deposit Agreement and this ADR at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the ADS Deposit Agreement and this ADR 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.
(24) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the ADS Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) 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 ADS Deposit
A-26
Agreement, the Depositary may terminate the ADS Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On, and for six
months after, the date of termination of the ADS 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 ADS 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 ADSs shall remain outstanding after the date of termination of the
ADS 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 ADS Deposit Agreement, except that
the Depositary shall continue for six months after the date of termination to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the ADS Deposit Agreement, and shall continue
to deliver Deposited Securities, subject to the conditions and restrictions set
forth in the ADS 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 an ADR, any expenses for the account of the
Holder in accordance with the terms and conditions of the ADS 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 ADS
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 ADS 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 ADS Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the ADS Deposit Agreement, the Company shall be discharged from all
obligations under the ADS Deposit Agreement except as set forth in the ADS
Deposit Agreement.
(25) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the ADS 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, under the Securities Act.
A-27
(26) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (26), 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 ADS Deposit Agreement and (ii) deliver Shares prior to the receipt of
ADSs for withdrawal of Deposited Securities pursuant to Section 2.7 of the ADS
Deposit Agreement, including ADSs which were issued under (i) above but for
which Shares may not have been received (each such transaction a "Pre-Release
Transaction"). The Depositary may receive ADSs in lieu of Shares under (i) above
and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs 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 and Shares 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 and Shares 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).
(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:
A-28
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 societe Air
France 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-29
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 ADS 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 U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding issuances fraction thereof) issued. receiving ADSs.
contemplated by paragraphs (3)(b) and
(5) below).
------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender of ADSs. fraction thereof) surrendered. purpose of withdrawal of Deposited
Securities or person to whom
Deposited Securities are delivered.
------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee, to the extent prohibited by Person to whom distribution is made.
dividends or (b) ADSs pursuant to the exchange upon which the ADSs
stock dividends (or other free are listed. If the charging of
distribution of stock). such fee is not prohibited, the
fees specified in (1) above shall
be payable in respect of a
distribution of ADSs pursuant to
stock dividends (or other free
distribution of stock) and the fees
specified in (4) below shall be
payable in respect of distributions
of cash.
------------------------------------------------------------------------------------------------------------------
(4) Distribution of cash proceeds Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., upon sale of rights and other fraction thereof) held.
entitlements).
------------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per unit of 100 Person to whom distribution is made.
other than ADSs or rights to purchase securities (or fraction thereof)
additional ADSs (i.e., spin-off distributed.
shares).
------------------------------------------------------------------------------------------------------------------
(6) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to exercise of rights to purchase fraction thereof) issued.
additional ADSs.
------------------------------------------------------------------------------------------------------------------
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 ADS 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, the Custodian or
any nominee in connection with the servicing or delivery of Deposited
Securities.
B-2