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AIR FRANCE-KLM
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
OUTSTANDING UNDER THE TERMS OF THE
ADS DEPOSIT AGREEMENT, DATED AS OF APRIL 5, 2004
--------------------------------------
Amendment No. 1
to
ADS Deposit Agreement
--------------------------------------
Dated as of February 7, 2008
ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01 Definitions................................................2
SECTION 1.02 Effective Date.............................................2
ARTICLE II
AMENDMENTS TO ADS DEPOSIT AGREEMENT............................................2
SECTION 2.01 ADS Deposit Agreement......................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners....2
SECTION 2.03 Deregistration of Securities...............................3
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................7
SECTION 3.01 ADR Amendment..............................................7
SECTION 3.02 Deregistration of Securities...............................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................................12
SECTION 4.01 Representations and Warranties............................12
ARTICLE V
MISCELLANEOUS.................................................................13
SECTION 5.01 New ADRs..................................................13
SECTION 5.02 Notice of Amendment to Holders of ADSs....................14
SECTION 5.03 Indemnification...........................................14
SECTION 5.04 Ratification..............................................14
SECTION 5.05 Governing Law.............................................14
SECTION 5.06 Counterparts..............................................14
EXHIBIT A
FORM OF ADR..................................................................A-1
EXHIBIT B
NOTICE TO HOLDERS............................................................B-1
i
AMENDMENT NO. 1 TO ADS DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO ADS DEPOSIT AGREEMENT, dated as of February 7,
2008 (the "Amendment"), by and among Air France-KLM, a company organized and
existing under the laws of The Republic of France (the "Company"), Citibank,
N.A., a national banking association organized under the laws of the United
States of America (the "Depositary"), and all Holders and Beneficial Owners from
time to time of American Depositary Shares outstanding under the ADS Deposit
Agreement, dated as of April 5, 2004.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain
ADS Deposit Agreement, dated as of April 5, 2004 (the "ADS Deposit Agreement"),
for the creation of American Depositary Shares representing the Shares (as
defined in the ADS Deposit Agreement) deposited thereunder and for the execution
and delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, the Company has filed a Form 15F with the U.S. Securities
and Exchange Commission ("SEC") in order to seek to terminate the registration
of its securities under the United States Securities and Exchange Act of 1934,
as amended ("Exchange Act"), and its obligation to file with the SEC, or submit
to the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act; and
WHEREAS, the Company desires to (x) amend the ADS Deposit Agreement,
the ADRs currently outstanding and the form of ADR annexed to the ADS Deposit
Agreement to reflect such change and certain changes to French law and its
Articles of Association, and (y) to give notice thereof to all Holders (as
defined in the ADS Deposit Agreement) of ADSs; and
WHEREAS, pursuant to Section 6.1 of the ADS Deposit Agreement, the
Company and the Depositary deem it necessary and desirable to amend the ADS
Deposit Agreement, the ADRs currently outstanding and the form of ADR annexed to
the ADS Deposit Agreement as Exhibit A for the purposes set forth herein;
1
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the ADS Deposit Agreement, the ADRs currently outstanding
and the form of ADR annexed as Exhibit A to the ADS Deposit Agreement as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this
Amendment, all capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the ADS Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean
the date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO ADS DEPOSIT AGREEMENT
SECTION 2.01 ADS Deposit Agreement. All references in the ADS
Deposit Agreement to the term "ADS Deposit Agreement" shall, as of the Effective
Date, refer to the ADS Deposit Agreement, dated as of April 5, 2004, as amended
by this Amendment and as further amended and supplemented after the Effective
Date.
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendment to the ADS Deposit
Agreement effected hereby shall be binding on all Holders and Beneficial Owners
of ADSs issued and outstanding as of the Effective Date and on all Holders and
Beneficial Owners of ADSs issued after the Effective Date.
2
SECTION 2.03 Disclosure of Interests. To reflect certain changes
under French law and the Company's Articles of Association, the ADS Deposit
Agreement is amended as of the Effective Date by deleting Section 3.6 in its
entirety and inserting the following in its stead:
"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 ADS
Deposit 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, three-twentieths, one-fifth, one-quarter,
one-third, one-half, two-thirds, eighteen-twentieths or
nineteen-twentieths 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 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
3
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 fifteen (15) 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. If the number of Shares or available votes changes, the
Company is required to publish, and to file with the Autorite des
Marches Financiers, the number of Shares and 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.
In addition, the Company's Articles of Association, as in
effect as of the date hereof, provides 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 fifteen (15) 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
4
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 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
5
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 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."
SECTION 2.04 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the ADS Deposit Agreement is hereby amended as of the
Effective Date by deleting Section 4.12 in its entirety and inserting the
following in its stead:
"4.12 Available Information. The Company has been subject to the
periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC, certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained
by the SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The
Company has filed a Form 15F ("Form 15F") with the SEC, which has
suspended the Company's duty under the Exchange Act to file or
6
submit the reports required under Sections 13(a) or 15(d) of the
Exchange Act. Upon the effectiveness of Form 15F, the Company's duty
to file or submit reports under Sections 13(a) or 15(d) of the
Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations
of the Exchange Act provided by Rule 12g3-2(b). In order to satisfy
the conditions of Rule 12g3-2(b) the Company intends to publish the
information contemplated in Rule 12g3-2(b)(1)(iii) under the
Exchange Act on its internet website or through an electronic
information delivery system generally available to the public in the
Company's primary trading market, and to translate the information
so published into English in accordance with the instructions to
Rule 12g3-2(e). The Company has specified in Form 15F the internet
website or the electronic information delivery system on which it
intends to publish such information. The information so published by
the Company cannot be retrieved from the SEC's internet website, and
cannot be inspected or copied at the public reference facilities
maintained by the SEC. If the Form 15F is not declared effective,
the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with
the SEC, and submit to the SEC, certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained
by the SEC."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of
the form of ADR attached as Exhibit A to the ADS Deposit Agreement and in each
of the ADRs issued and outstanding under the terms of the ADS Deposit Agreement
is hereby amended as of the Effective Date by deleting such sentence in its
entirety and inserting the following in its stead:
"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 April 5, 2004, as amended by Amendment No.1 to ADS Deposit
Agreement, dated as of February 7, 2008 (as so amended and as
further 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 issued
thereunder."
7
SECTION 3.02 Disclosure of Interests. To reflect certain changes
under French law and the Company's Article of Association, the form of ADR
attached as Exhibit A to the ADS Deposit Agreement and each of the ADRs issued
and outstanding under the terms of the ADS Deposit Agreement is hereby amended
as of the Effective Date by deleting paragraph (7) in its entirety and inserting
the following in its stead:
"(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
ADS Deposit 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, three-twentieths, one-fifth, one-quarter,
one-third, one-half, two-thirds, eighteen-twentieths or nineteen
twentieths 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
8
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 fifteen (15) 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. If
the number of Shares or available votes changes, the Company is
required to publish each month, and to file with the Autorite des
Marches Financiers, the number of Shares and 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.
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 fifteen (15) days of the crossing of the relevant threshold
9
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 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 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.
10
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."
SECTION 3.03 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the form of ADR attached as Exhibit A to the ADS Deposit
Agreement and each of the ADRs issued and outstanding under the terms of the ADS
Deposit Agreement is hereby amended as of the Effective Date by deleting
paragraph (14) in its entirety and inserting the following in its stead:
11
"(14) Available Information. The Company has been subject to the
periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained
by the SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. The
Company has filed a Form 15F ("Form 15F") with the SEC, which has
suspended the Company's duty under the Exchange Act to file or
submit the reports required under Sections 13(a) or 15(d) of the
Exchange Act. Upon the effectiveness of Form 15F, the Company's duty
to file or submit reports under Sections 13(a) or 15(d) of the
Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations
of the Exchange Act provided by Rule 12g3-2(b). In order to satisfy
the conditions of Rule 12g3-2(b) the Company intends to publish the
information contemplated in Rule 12g3-2(b)(1)(iii) under the
Exchange Act on its internet website or through an electronic
information delivery system generally available to the public in the
Company's primary trading market, and to translate the information
so published into English in accordance with the instructions to
Rule 12g3-2(e). The Company has specified in Form 15F the internet
website or the electronic information delivery system on which it
intends to publish such information. The information so published by
the Company cannot be retrieved from the SEC's internet website, and
cannot be inspected or copied at the public reference facilities
maintained by the SEC. If the Form 15F is not declared effective,
the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with
the SEC, and submit to the SEC, certain reports that can be
retrieved from the SEC's internet website at ▇▇▇.▇▇▇.▇▇▇, and can be
inspected and copied at the public reference facilities maintained
by the SEC."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the ADS Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been, respectively, duly
and validly authorized, executed and delivered by the Company, and constitute
12
the legal, valid and binding obligations of the Company, enforceable against the
Company 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
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the ADS Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in The
Republic of France, neither of such agreements need to be filed or recorded with
any court or other authority in The Republic of France, nor does any stamp or
similar tax need be paid in The Republic of France on or in respect of such
agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued hereunder
after the Effective Date, once such new ADRs are available, whether upon the
deposit of Shares or other Deposited Securities or upon the transfer,
combination or split up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the ADS Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
13
SECTION 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send notices informing the Holders of ADSs (i) of the
terms of this Amendment; (ii) of the Effective Date of this Amendment; and (iii)
that the Holder of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 5.01 hereof; and (iv) that
copies of this Amendment may be retrieved from the Commission's website at
▇▇▇.▇▇▇.▇▇▇ and may be obtained from the Depositary and the Company upon
request. The notice to Holders of ADSs shall be substantially in the form of
Exhibit B attached hereto.
SECTION 5.03 Indemnification. The Company agrees to indemnify and
hold harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.04 Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the ADS Deposit Agreement as originally
executed shall remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.06 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall be deemed an original, and all such
counterparts together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
AIR FRANCE-KLM
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
CITIBANK, N.A., as Depositary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
15
EXHIBIT A
Number___________ CUSIP Number __________
American Depositary Shares
(each American Depositary Share
representing one (1)
Ordinary Share, nominal value
(euro) 8.50 per share)
[FORM OF FACE OF]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES,
representing
DEPOSITED SHARES,
of
AIR FRANCE-KLM
(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 Air France-KLM, 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 April 5, 2004, as amended by Amendment No. 1 to ADS Deposit Agreement, dated
as of February 7, 2008 (as so amended and as further 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. The
ADS Deposit Agreement sets forth the rights and obligations of Holders and
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Beneficial Owners of ADSs 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.
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
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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
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.
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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.
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
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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;
(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;
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(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
(B) if any such sale is made, such Non-E.U. ADSs shall
thereafter represent only the right to receive any net
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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. ADS s;
(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,
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(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.
(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 ADS
Deposit 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,
three-twentieths, one-fifth, one-quarter, one-third, one-half, two-thirds,
eighteen-twentieths or nineteen twentieths of the share capital or voting rights
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(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 fifteen (15)
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.
If the number of Shares or available votes changes, the Company is required to
publish each month, and to file with the Autorite des Marches Financiers, the
number of Shares and 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.
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 fifteen (15) 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
A-9
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 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
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.
A-10
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
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
A-11
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.
(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:
A-12
(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 ADS s;
(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.
A-13
(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.
(14) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the SEC, and
submitted to the SEC certain reports that can be retrieved from the SEC's
internet website at ▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public
reference facilities maintained by the SEC at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇. The Company has filed a Form 15F ("Form 15F") with the SEC, which
has suspended the Company's duty under the Exchange Act to file or submit the
reports required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of Form 15F, the Company's duty to file or submit reports under
Sections 13(a) or 15(d) of the Exchange Act will terminate and the Company will,
pursuant to Rule 12g3-2(e)(1), receive the exemption from the reporting
obligations of the Exchange Act provided by Rule 12g3-2(b). In order to satisfy
the conditions of Rule 12g3-2(b) the Company intends to publish the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its internet
website or through an electronic information delivery system generally available
to the public in the Company's primary trading market, and to translate the
information so published into English in accordance with the instructions to
Rule 12g3-2(e). The Company has specified in Form 15F the internet website or
the electronic information delivery system on which it intends to publish such
information. The information so published by the Company cannot be retrieved
from the SEC's internet website, and cannot be inspected or copied at the public
reference facilities maintained by the SEC. If the Form 15F is not declared
effective, the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with the SEC, and
submit to the SEC, certain reports that can be retrieved from the SEC's internet
website at ▇▇▇.▇▇▇.▇▇▇, and can be inspected and copied at the public reference
facilities maintained by the SEC.
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.
A-14
Dated:
CITIBANK, N.A., CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By: _______________________________ By: _______________________________
Authorized Signatory Authorized Signatory
The address of the Corporate Agency Office of the Depositary is ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The Depositary's Corporate
Agency Office is different from its Principal Executive Office. Its Principal
Executive Office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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
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.
A-16
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.
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
A-17
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
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.
A-18
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.
(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.
A-19
(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
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
A-20
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
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
A-21
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
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).
A-22
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
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
A-23
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
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
A-24
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),
(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.
A-25
(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
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
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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.
(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).
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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 Receipt and all rights thereunder, hereby irrevocably constituting and
appointing _________________________ attorney-in-fact to transfer said Receipt
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 Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
Legends
[The Receipts issued in respect of Partial Entitlement American Depositary
Shares shall bear the following legend on the face of the Receipt: "This
Receipt evidences American Depositary Shares representing partial
entitlement Ordinary Shares of Air France-KLM 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 Receipt 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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EXHIBIT B
[FORM OF NOTICE TO HOLDERS]
NOTICE OF DEREGISTRATION
To the Holders of American Depositary Shares ("ADSs") representing the Deposited
Securities of the Company.
--------------------------------------------------------------------------------
Company: Air France, a company organized and existing
under the laws of The Republic of France.
--------------------------------------------------------------------------------
Depositary: Citibank, N.A.
--------------------------------------------------------------------------------
Custodian: Citibank International Plc - Paris branch.
--------------------------------------------------------------------------------
Deposited Securities: Ordinary Shares, nominal value (euro) 8.50
per share, of the Company ("Shares").
--------------------------------------------------------------------------------
ADS CUSIP No.: ▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Shares to ADS Ratio: One Share to one ADS.
--------------------------------------------------------------------------------
ADS Deposit Agreement: ADS Deposit Agreement, dated as of April 5,
2004 (the "Original ADS Deposit Agreement"),
by and among the Company, the Depositary and
the Holders and Beneficial Owners of ADSs,
as amended by Amendment No. 1 to ADS Deposit
Agreement, dated as of February 7, 2008 (the
"Amendment"), by and among the Company, the
Depositary and the Holders and Beneficial
Owners of ADSs (the Original ADS Deposit
Agreement as so amended and further amended
and supplemented from time to time, the "ADS
Deposit Agreement").
--------------------------------------------------------------------------------
Effective Date: February 7, 2008.
--------------------------------------------------------------------------------
The Company has filed a Form 15F with the Securities and Exchange Commission
("SEC") to terminate the registration of its securities under the Securities
Exchange Act of 1934, as amended ("Exchange Act"). The filing of Form 15F
suspends the Company's obligations to file with the SEC reports pursuant to the
Exchange Act. Absent an objection from the SEC, the deregistration of the
Company's securities and the termination of the Company's reporting obligations
under the Exchange Act will only become effective upon the expiration of 90 days
after the Company filed its Form 15F, or such shorter period as the SEC may
determine. A copy of the Company's Form 15F may be retrieved from the SEC's
website at ▇▇▇.▇▇▇.▇▇▇.
The Company and the Depositary have agreed to amend the Original ADS Deposit
Agreement to reflect the de-registration of the Company's securities under the
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Exchange Act and the termination of the Company's reporting obligations under
the Exchange Act. A draft copy of the Amendment has been filed with the SEC
under cover of Post Effective Amendment No. 1 to Registration Statement on Form
F-6 (Registration No. 333-114197) (the "Post Effective Amendment to F-6
Registration Statement"). As of the Effective Date, the Original ADS Deposit
Agreement and all ADRs will be amended to reflect the application by the Company
to deregister its securities, and to terminate its reporting obligations, under
the Exchange Act.
By continuing to hold any outstanding ADS issued under the Original ADS Deposit
Agreement after the Effective Date, you will be deemed to have agreed to be
bound by the Original ADS Deposit Agreement as amended by the Amendment. The
Depositary shall arrange to have new ADRs printed that reflect the changes
effected by the Amendment. However, ADRs issued prior to the Effective Date do
not need to be surrendered for exchange. If you hold ADSs in uncertificated
form, you do not need to take any action.
Copies of the Original ADS Deposit Agreement and the form of Amendment are
available from the SEC's website at ▇▇▇.▇▇▇.▇▇▇ and from the Depositary's office
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. If you have any
questions regarding the Amendment, please call Citibank, N.A. -- ADS Holder
Services at ▇-▇▇▇-▇▇▇-▇▇▇▇.
Citibank, N.A., as Depositary
February 7, 2008
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