SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT, dated as of February 11,
2003 (this "Agreement"), to the Deposit Agreement, dated as of December 7, 2000
(the "Deposit Agreement"), by and among Gemplus International S.A. (the
"Company"), Deutsche Bank Trust Company Americas, a New York banking corporation
and an indirect wholly owned subsidiary of Deutsche Bank AG, in its capacity as
the successor depositary (the "Depositary"), and all Holders and Beneficial
Owners from time to time of American Depositary Receipts issued thereunder (as
defined in the Deposit Agreement).
W I T N E S S E T H T H A T:
WHEREAS, the Company and Citibank, N.A. (the "Predecessor Depositary")
entered into the Deposit Agreement for the purposes set forth therein;
WHEREAS, by written notice dated February 19, 2003 addressed to the
Predecessor Depositary, the Company, pursuant to Section 5.4 of the Deposit
Agreement, has terminated the appointment of the Predecessor Depositary under
the Deposit Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that
the Predecessor Depositary, in consideration of the payment of certain fees and
expenses of the Predecessor Depositary (i) will be terminated as depositary
under the Deposit Agreement with effect from the Effective Date (as defined
herein) and (ii) will cause the removal of the Custodian, Citibank International
Plc - Paris Branch, appointed in respect of the Deposit Agreement (the
"Predecessor Custodian") with effect from the Effective Date upon simultaneous
appointment by the Depositary of a successor Custodian;
WHEREAS, the Company has appointed Deutsche Bank Trust Company
Americas as Depositary solely in accordance with and subject to the conditions
of the Deposit Agreement, as amended and supplemented by this Agreement;
WHEREAS, the Company and the Depositary have agreed that the
Predecessor Depositary shall deliver to the Depositary the information, records,
property and cash referred to in Section 5.4 of the Deposit Agreement;
WHEREAS, Deutsche Bank Trust Company Americas has accepted its
appointment as Depositary solely in accordance with and subject to the
conditions of the Deposit Agreement, as amended and supplemented by this
Agreement;
WHEREAS, the Company desires to provide for the deposit of Shares of
the Company with the Depositary or the Custodian as agent for the Depositary and
for the execution and delivery of Receipts evidencing American Depositary Shares
representing beneficial interests in the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and supplement
the terms of the Deposit Agreement and form of Receipts, in accordance with
Section 6.1 of the Deposit Agreement, inter alia to reflect the removal by the
Company of Citibank, N.A., in its capacity as the predecessor depositary, and
the appointment of the Depositary, in its capacity as the successor depositary
in accordance with Section 5.4 of the Deposit Agreement.
NOW, THEREFORE, the Company and the Depositary hereby amend and
supplement the Receipts and the Deposit Agreement, effective as of the Effective
Date set forth in Section 7.01 hereof, as follows:
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ARTICLE I
CONFIRMATION OF APPOINTMENT AND ACCEPTANCE OF DEPOSITARY
Section 1.01 The Company hereby confirms its appointment of the
Depositary as successor Depositary for the facilities under the Deposit
Agreement.
Section 1.02 The Depositary accepts the appointment referred to above
and agrees to observe and be bound by the terms of the Deposit Agreement, as
amended and supplemented by this Agreement, as if the Depositary had been
originally appointed as Depositary under the Deposit Agreement.
ARTICLE II
APPOINTMENT OF SUCCESSOR CUSTODIAN
Section 2.01 The Depositary has separately appointed Credit Agricole
Indosuez (the "Successor Custodian") as successor Custodian under Section 5.5 of
the Deposit Agreement, with effect from the Effective Date.
Section 2.02 The Company hereby confirms its approval of the
appointment of the successor Custodian.
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ARTICLE III
DEFINITIONS
Section 3.01 Definitions Generally. Unless otherwise defined in this
Agreement, capitalized terms which are used but not defined herein shall have
the meanings set forth in the Deposit Agreement.
ARTICLE IV
AMENDMENTS TO DEPOSIT AGREEMENT
Section 4.01 All references in the Deposit Agreement to "Citibank,
N.A." or the "Depositary" shall be read and construed as references to "Deutsche
Bank Trust Company Americas".
Section 4.02 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, dated as of December 7,
2000, as amended and supplemented by this Agreement and as further amended and
supplemented from time to time.
Section 4.03 All references in the Deposit Agreement to "Citibank
International Plc - Paris Branch", 19 ▇▇ ▇▇▇▇▇▇, CEDEX ▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇ are hereby replaced with Credit Agricole Indosuez, ▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇.
The Deposit Agreement is hereby amended and supplemented by deleting
the words "Citibank International Plc - Paris Branch" from the definition of
"Custodian" in Section 1.10
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and substituting in their place "Credit Agricole Indosuez", and by including the
following at the end of the first sentence:
", upon prior consultation with the Company".
Section 4.04 The Deposit Agreement is hereby amended and supplemented
by deleting the words "Citibank, N.A., a national banking association organized
under the laws of the United States" from the definition of "Depositary" in
Section 1.13 of the Deposit Agreement, and substituting in their place the words
"Deutsche Bank Trust Company Americas, a New York banking corporation".
Section 4.05 The Deposit Agreement is hereby amended and supplemented
by replacing Section 1.28 with the following paragraph:
Section 1.28. "Principal Office" shall mean, when used with respect to
the Depositary, the principal office of the Depositary, which at the
date of this Deposit Agreement is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, and when used with respect
to Custodian, shall mean the principal office of the Custodian, which
with respect to Credit Agricole Indosuez at the date of this Agreement
is ▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇.
Section 4.06 The Deposit Agreement is hereby amended and supplemented
by inclusion of the following after the first sentence of the second paragraph
in section 5.09:
"In addition, whenever the Depositary under the Deposit Agreement is
entitled to request or rely on a legal opinion in making a lawful
determination (including, but not limited to, the determinations
contemplated under Article IV herein) under the laws of the United
States or other applicable laws, such opinions shall be furnished at
the expense of the Company."
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Section 4.07 The Deposit Agreement is hereby amended and supplemented
by inclusion of the following address for notices to the Depositary in Section
7.5. "60 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Department."
Section 4.08 The Deposit Agreement is hereby amended and supplemented
by replacing Gemplus America, Inc., at ▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, as the designated "Agent" in Section 7.6, and elsewhere in the Deposit
Agreement where necessary, with Gemplus Corp., at ▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 4.09 The Deposit Agreement is hereby amended and supplemented
by inclusion of the following after the second sentence in Section 7.9.
"and any such changes shall be deemed made to this Deposit Agreement".
Section 4.10 All references in the Deposit Agreement to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to an entry or entries or an
electronic transfer or transfers, as well as to the physical transfer of
certificates representing the Shares.
ARTICLE V
AMENDMENTS TO FORM OF RECEIPT
Section 5.01 The form of Receipt attached as Exhibit A to the Deposit
Agreement (the "Form of Receipt") is amended and restated in its entirety to
read as Exhibit A attached hereto, with such amendments reflecting the
appointment of the Depositary and Successor Custodian.
Section 5.02 All references in the Form of Receipt to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the
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context requires, to any entry or entries or an electronic transfer or transfers
as well as to the physical transfer of certificates representing the Shares.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties. The Company and the
Depositary mutually represent and warrant to each other and to the Holders,
that:
(a) This Agreement, when executed and delivered by each of the Company and
the Depositary, and the Deposit Agreement, as amended and supplemented by
this Agreement and all other documentation executed and delivered by the
Company and the Depositary in connection therewith, will be or, in the case
of the Depositary, will be deemed to have been, respectively, duly and
validly authorized, executed and delivered by the Company and the
Depositary, and constitute the legal, valid and binding obligations of the
Company and the Depositary, enforceable against the Company and the
Depositary in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
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(b) All of the information provided by the Company and the Depositary to
each other in connection with this Agreement is true, accurate and
complete.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Effective Date. This Agreement is dated as of the date
set forth above and shall be effective on the later to occur of (i) March 17,
2003 or (ii) the effective date of the Registration Statement on Form F-6 to be
filed by the Depositary, on behalf of the legal entity created by the Deposit
Agreement, as amended and supplemented by this Agreement, as declared effective
by the United States Securities and Exchange Commission, in connection with its
appointment as successor depositary, the removal of the Predecessor Depositary
to be effective simultaneously therewith (the "Effective Date"). From and after
the Effective Date, all references in the Deposit Agreement and the Form of
Receipt shall be deemed to be references to the Deposit Agreement and Form of
Receipt, as amended and supplemented by this Agreement.
Section 7.02 Outstanding Receipts. Receipts issued prior to the date
hereof, which do not reflect the changes to the Receipts effected hereby, do not
need to be called in for exchange and may remain outstanding until such time as
the Holders thereof choose to surrender them for any reason under the Deposit
Agreement, as amended and supplemented by this Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The Company hereby instructs the Depositary to (i) promptly send
notice of the execution of the Deposit Agreement, as amended and supplemented by
this Agreement, to all
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holders of American Depositary Receipts outstanding under the Deposit Agreement
as of the date hereof and (ii) inform holders of American Depositary Receipts
outstanding under the Deposit Agreement as of the date hereof that they have the
opportunity, but are not required, to exchange their Receipts for one or more
Receipts issued pursuant to the Deposit Agreement, as amended and supplemented
by this Agreement.
Holders and Beneficial Owners of Receipts issued pursuant to the
Deposit Agreement issued prior to the date hereof and outstanding as of the date
hereof, shall, from and after the date hereof, be deemed Holders and Beneficial
Owners of Receipts issued pursuant and be subject to all of the terms and
conditions of the Deposit Agreement, as amended and supplemented by this
Agreement, in all respects, provided, however, that any amendment to the Deposit
Agreement effectuated by this Agreement that prejudices any substantial existing
right of Holders or Beneficial Owners of Receipts issued under the Deposit
Agreement shall not become effective as to Holders and Beneficial Owners until
thirty (30) days after notice of the amendment effectuated by this Agreement
shall have been given to holders of Receipts outstanding as of the date hereof.
Section 7.03 Undertaking of Depositary. The Depositary hereby
undertakes to promptly mail notice of its appointment as Depositary under the
Deposit Agreement, as amended and supplemented by this Agreement, to the Holders
of Receipts outstanding as of the date hereof.
Section 7.04 Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with
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any and all liability it or they may incur as a result of the terms of this
Agreement and the transactions contemplated herein. Nothing herein shall
obligate Deutsche Bank Trust Company Americas to indemnify or hold harmless the
Company, or any of its directors, employees, agents and affiliates for any
liability or expense arising out of acts performed or omitted by Citibank, N.A.,
as Predecessor Depositary, the Custodian, or their respective directors,
employees, agents and affiliates.
Section 7.05 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 7.06 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by representatives hereunto duly authorized as of the
date set forth above.
Gemplus International S.A., as the
Company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President and
General Counsel
By: /s/ Yves Guillaumot
Name: Yves Guillaumot
Title: Executive Vice President and
Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: 36866Y 10 2
____________ American Depositary Shares (each
American Depositary Share representing
two (2) Fully Paid Ordinary Shares with
no nominal value).
AMERICAN DEPOSITARY RECEIPT
for
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
Gemplus International S.A.
(Organized under the laws of Luxembourg)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as
depositary (the "Depositary"), hereby certifies that ___________ is the owner of
_____________ American Depositary Shares (hereinafter "ADS"), representing
deposited shares, with no nominal value, including evidence of rights to receive
such shares (the "Shares"), of Gemplus International S.A., a societe anonyme
organized under the laws of Luxembourg (the "Company") and registered on the
Luxembourg Company Register under number RC No. B 73145. As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents two (2) ordinary
shares deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the amendment to the Deposit Agreement is Credit Agricole
Indosuez (the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment
as provided in Articles IV and VI of the Deposit Agreement. The Depositary's
Principal Office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of
December 7, 2000 (as amended and supplemented as of February 11, 2003 and from
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time
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of ADSs evidenced by ADRs issued thereunder. The Deposit Agreement sets forth
the rights and obligations of Holders and Beneficial Owners of ADRs and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Incorporation of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Incorporation, 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 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 to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, this ADR has been
properly endorsed in blank or is accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this ADR, of the Deposit Agreement,
of the Company's Articles of Incorporation, of any applicable laws and the rules
of SICOVAM, 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) at
the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this ADR, of the Articles of Incorporation of the Company, of any applicable
laws and the rules of the SICOVAM, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs. Notwithstanding
anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this
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ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent
to the execution and delivery, the registration of issuance, transfer, split-up,
combination or surrender, of any ADR, the delivery of any distribution thereon,
or the withdrawal of any Deposited Securities, the Depositary or the Custodian
may require (i) payment from the depositor of Shares or presenter of ADSs or of
an ADR of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn) and payment of any applicable fees and charges of the Depositary
as provided in the Deposit Agreement and in this ADR, (ii) the production of
proof satisfactory to it as to the identity and genuineness of any signature or
any other matters contemplated in the Deposit Agreement, and (iii) compliance
with (A) any laws or governmental regulations relating to the execution and
delivery of ADRs or ADSs or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR and the Deposit Agreement and
applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADRs in particular
instances may be refused, or the registration of transfer of ADRs generally may
be suspended, during any period when the transfer books of the Company, the
Depository, 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 Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (23) hereof. Notwithstanding any
provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
any time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
A-4
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended, from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable law, the rules and requirements of Premier Marche of
Euronext Paris, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Incorporation of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or of
the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law. The Company may also restrict, in such manner as it deems
appropriate, transfers of ADSs where such transfer may result in the total
number of Shares represented by the ADSs owned by a single Holder or Beneficial
Owner to exceed any such limits. The Company may, in its sole discretion but
subject to applicable law, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of the
limits set forth in the preceding sentence, including but not limited to, the
imposition of restrictions on the transfer of ADSs, the removal or limitation of
voting rights or a mandatory sale or disposition on behalf of a Holder or
Beneficial Owner of the Shares represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law. Under Luxembourg law, a holder of
Shares (including Shares held in the form of ADSs) is required to disclose the
percentage of votes it holds to the Company and the Luxembourg Commission de
Surveillance du Secteur Financier within seven (7) calendar days from the date
the holder knows, or should have known, that its percentage of votes equals,
exceeds or falls below 10%, 20%, 33.33%, 50% or 66.66% of the total number of
votes in the Company. A holder of Shares (including Shares held in the form of
ADSs) must include in its calculation all voting rights held directly or
indirectly, or controlled by it. Failure to comply with these rules may subject
the shareholder to criminal sanctions and suspension of voting rights until this
disclosure is made. In addition, under the Articles of Incorporation, any person
that acquires Shares (including Shares held in the form of ADSs) representing 2%
or more of the total number of votes in the Company is required to disclose the
percentage of votes it holds to the Company within eight (8) calendar days from
the date of such acquisition. The shareholder must include in its calculation
all voting rights held directly or indirectly, or controlled by it. Failure to
comply with these rules may subject the shareholder to suspension of voting and
other rights until this disclosure is made or satisfactory evidence is provided
that this disclosure is not required.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs
A-5
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, to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to paragraph (23) hereof) the withdrawal of Deposited Securities until
payment in full of 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.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities, and (v) 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
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.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or 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 on the books of the
Company or of the Shares Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and this ADR. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADR or the distribution
or sale of any dividend or distribution of rights or of the proceeds thereof or,
to the extent not limited by paragraph (23) hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed, or such representations are
A-6
made or such other information or documentation are provided, in each case to
the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iv)
below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash dividends or other cash distributions (i.e., upon the
sale of unexercised rights and other entitlements) under the
terms of the Deposit Agreement, unless prohibited by the
exchange upon which the ADSs are listed; and
(iv) to any Holder of ADRs, a fee not in excess of U.S. $5.00 per
100 ADSs (or portion thereof) issued pursuant to stock
dividend or other free stock distribution or upon the exercise
of rights, unless prohibited by the exchange upon which the
ADSs are listed; and
(v) to any person presenting an ADR certificate for transfer, a
fee not in excess of U.S. $1.50 per ADR certificate so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depository or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
A-7
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement, including legal opinions, will be paid by the Company subject to
prior agreement between the Depositary and the Company. All fees and charges
may, at any time and from time to time, be changed by agreement between the
Depositary and Company but, in the case of fees and charges payable by Holders
or Beneficial Owners, only in the manner contemplated by paragraph (21) of this
ADR. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian are
for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that 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
Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner
unless such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depository, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇. 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
A-8
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 Deposit Agreement
or the ADRs.
The Registrar may close the transfer books with respect to the ADRs, at any
time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(23) hereof.
Dated:
DEUTSCHE BANK TRUST COMPANY AMERICAS DEUTSCHE BANK TRUST COMPANY AMERICAS
Transfer Agent and Registrar as Depositary
By: By:
-------------------------------- -------------------------------
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-9
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL, PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) 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 other entitlements
held in respect of Deposited Securities under the terms of the Deposit
Agreement, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can, in the judgment of the Depositary (upon the
terms of the Deposit Agreement), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii)
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders 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 Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and the 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
A-10
and distribute the net proceeds to Holders entitled thereto upon the terms set
forth in the 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 the 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 expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms of the Deposit Agreement. The Depositary shall
hold and/or distribute any unsold balance of such property in accordance with
the provisions of the Deposit Agreement.
Upon receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
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 Deposit Agreement, establish an ADS
record date according to paragraph (15) 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. If such
elective distribution is not reasonably practicable or if the Depositary did not
receive satisfactory documentation set forth in the Deposit Agreement, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the
basis of the same determination as is made in Luxembourg in respect of the
Shares for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon 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 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 Deposit
Agreement) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) enable the Holders to
exercise the rights (upon payment of the subscription
A-11
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) deliver ADSs upon the valid exercise of
such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not timely
request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by the 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) to the Holders entitled thereto upon
the terms hereof and of the Deposit Agreement. If the Depositary is unable to
make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, 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 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 exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
A-12
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 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, 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 (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders as of the ADS Record Date upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) 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, or to give or withhold such consent, or 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 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.
(16) Voting of Deposited Securities. As soon as practicable aver 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 Depository shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
A-13
obligation to take any further action if the request shall not have been
received by the Depositary at least twenty (20) days prior to the date of such
vote or meeting), at the Company's expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such
notice of meeting and proxy, (b) a statement that the Holders at the close of
business on the ADS Record Date will be entitled, subject to any applicable law,
the provisions of the Deposit Agreement, the Company's Articles of Incorporation
and the provisions of or governing Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depository as to the exercise of the voting rights, if any, pertaining to the
Deposited-Securities represented by such Holder's ADSs and (c) a brief statement
as to the manner in which such voting instructions may be given. Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt of voting
instructions from a Holder of ADSs as of the ADS Record Date in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, the Articles of Incorporation of the Company and the provisions of
the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder's ADSs in
accordance with such instructions.
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, for purposes of establishing a quorum or otherwise 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. If the Depositary timely receives voting instructions from a Holder
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 the items set forth in such
instructions. Deposited Securities represented by ADSs for which no timely
voting instructions are received by the Depositary from the Holder shall not be
voted. Notwithstanding anything else contained herein, the Depositary shall, if
so requested in writing by the Company, represent all Deposited Securities
(whether or not voting instructions have been received in respect of such
Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of shareholders. Notwithstanding
anything else contained in the Deposit Agreement or this 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. The Company agrees to take any
and all actions reasonably necessary to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver
to the Depositary an opinion of U.S. counsel addressing any actions requested to
be taken if so requested by the Depositary. There can be no assurance that
Holders generally or any Holder in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
(17) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or
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the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional ADRs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR contained in
this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(18) Exoneration. Neither the Depositary nor the Company shall be obligated
to do or perform any act which is inconsistent with the provisions of the
Deposit Agreement or incur any liability (i) if the Depositary or the Company
shall be prevented or forbidden from, or delayed in, doing or performing any act
or thing required by the terms of the Deposit Agreement and this ADR, by reason
of any provision of any present or future law or regulation of the United
States, Luxembourg 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 Incorporation of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Articles of Incorporation 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 any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depository, 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
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notice, request or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties. No disclaimer of liability
under the Securities Act is intended by any provision of the Deposit Agreement
or this ADR.
(19) Standard of Care. The Company and the Depository assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depository agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of the Deposit
Agreement. The Depository shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(20) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice of removal shall be effective on the earlier
of (i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use 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 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. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADRs and such other
information relating to ADRs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice of its
appointment to such Holders. Any corporation info or with which the Depositary
may be merged or consolidated shall be the successor of the Depositary without
the execution or filing of any document or any further act.
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(21) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 21, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADRs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADRs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such ADR and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require an amendment of, or supplement to, the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and this ADR at any time in accordance with
such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Holders or within any other period of
time as required for compliance with such laws, or rules or regulations.
(22) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If sixty
(60) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holders' ADR(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADRs referred to in
paragraph (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such ADR. If any ADRs shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the
A-17
registration of transfers of ADRs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for ADRs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six (6) months from
the date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADRs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADRs, the Deposited
Securities and the ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of an ADR, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or in the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
(24) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (24), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. 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. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the 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) accompanied
by or 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
A-18
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).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ___________________________________ whose taxpayer
identification number is ___________________ and whose address including postal
zip code is __________________ the within ADR and all rights thereunder, hereby
irrevocably constituting and appointing ____________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:
-----------------------------------
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity and
proper evidence of authority to act in
such capacity, if not on file with the
Depositary, must be forwarded with this
ADR.
--------------------
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs
must be guaranteed by a member of a
Medallion Signature Program approved by
the Securities Transfer Association,
Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences
American Depositary Shares representing "partial entitlement" ordinary shares of
Gemplus International S.A. 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 American
Depositary Shares represented by this ADR shall entitle holders to distributions
and entitlements identical to other American Depositary Shares when the ordinary
shares represented by such American Depositary Shares become "full entitlement"
ordinary shares."]
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