Exhibit (a)(i)
Amended and Restated Deposit Agreement,
dated as of November 19, 1997
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GROUPE DANONE
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ISSUED HEREUNDER
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Amended and Restated Deposit Agreement
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Dated as of November 19, 1997
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TABLE OF CONTENTS
Page
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PARTIES .......................................................................1
RECITALS ......................................................................1
ARTICLE I. DEFINITIONS ........................................................1
SECTION 1.01. American Depositary Shares ..................................2
SECTION 1.02. Beneficial Owner ............................................2
SECTION 1.03. Commission ..................................................2
SECTION 1.04. Company......................................................2
SECTION 1.05. Custodian: Custodians .......................................2
SECTION 1.06. Deposit. Surrender. Delivery ................................2
SECTION 1.07. Deposit Agreement ...........................................3
SECTION 1.08. Depositary...................................................3
SECTION 1.09. Deposited Securities ........................................3
SECTION 1.10. Dollars: Francs: FF .........................................3
SECTION 1.11. Holder ......................................................3
SECTION 1.12. Nominee .....................................................3
SECTION 1.13. Principal Office ............................................3
SECTION 1.14. Receipts ....................................................4
SECTION 1.15. Registrar ...................................................4
SECTION 1.16. Restricted Securities........................................4
SECTION 1.17. Securities Act of 1933 ......................................4
SECTION 1.18. Securities Exchange Act of 1934 .............................4
SECTION 1.19. Shares ......................................................4
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ...............................................5
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS...................................5
SECTION 2.01. Form and Transferability of Receipts ........................5
SECTION 2.02. Deposit of Shares ...........................................6
SECTION 2.03. Execution and Delivery of Receipts ..........................7
SECTION 2.04. Transfer of Receipts: Combination and
Split-up of Receipts.......................................................8
SECTION 2.05. Surrender of Receipts and Withdrawal of
Deposited Securities ......................................................8
SECTION 2.06. Limitations on Execution and Delivery. Transfer. Etc. of
Receipts. Suspension of Delivery. Transfer. Etc ...........................9
SECTION 2.07. Lost Receipts. Etc .........................................10
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts .......11
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS ......................11
SECTION 3.01. Filing Proofs. Certificates and Other Information ..........11
SECTION 3.02. Liability of Holder for Taxes ..............................12
SECTION 3.03. Representations and Warranties on Deposit of Shares ........12
SECTION 3.04. Disclosure of Interests ....................................12
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ARTICLE IV. THE DEPOSITED SECURITIES .........................................14
SECTION 4.01. Power of Attorney ..........................................14
SECTION 4.02. Cash Distributions: Withholding ............................15
SECTION 4.03. Distributions Other than Cash or Shares ....................16
SECTION 4.04. Distributions in Shares ....................................16
SECTION 4.05. Rights .....................................................17
SECTION 4.06. Conversion of Foreign Currency..............................20
SECTION 4.07. Fixing of Record Date ......................................21
SECTION 4.08. Voting of Shares ...........................................22
SECTION 4.09. Changes Affecting Deposited Securities......................24
SECTION 4.10. Available Information ......................................25
SECTION 4.11. Reports ....................................................25
SECTION 4.12. Lists of Receipt Holders ...................................25
SECTION 4.13. Withholding ................................................25
ARTICLE V. THE DEPOSITARY. THE CUSTODIAN AND THE COMPANY .....................27
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary 27
SECTION 5.02. Prevention or Delay in Performance by the Depositary or
the Company ..............................................................28
SECTION 5.03. Obligations of the Depositary, the Custodian and
the Company ..............................................................28
SECTION 5.04. Pre-Release of Shares and Receipts .........................29
SECTION 5.05. Resignation and Removal of the Depositary;
Appointment of Successor Depositary ......................................30
SECTION 5.06. The Custodian ..............................................31
SECTION 5.07. Notices and Reports ........................................32
SECTION 5.08. Issuance of Additional Shares. Etc..........................32
SECTION 5.09. Indemnification ............................................33
SECTION 5.10. Charges of Depositary.......................................34
SECTION 5.11. Retention of Depositary Documents ..........................35
ARTICLE VI. AMENDMENT AND TERMINATION ........................................35
SECTION 6.01. Amendment ..................................................35
SECTION 6.02. Termination ................................................36
ARTICLE VII. MISCELLANEOUS ...................................................37
SECTION 7.01. Counterparts ...............................................37
SECTION 7.02. No Third Party Beneficiaries ...............................37
SECTION 7.03. Severability ...............................................37
SECTION 7.04. Holders as Parties; Binding Effect..........................37
SECTION 7.05. Notices ....................................................37
SECTION 7.06. Governing Law ..............................................38
SECTION 7.07 Compliance with U.S. Securities Laws .......................38
TESTIMONIUM ..................................................................39
SIGNATURES ...................................................................39
EXHIBIT A......................................................................1
FORM OF FACE OF RECEIPT .......................................................I
Introductory Paragraph ....................................................1
(1) The Deposit Agreement .................................................2
(2) Surrender of Receipts and Withdrawal of Deposited Securities...........2
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(3) Transfers, Split-ups and Combinations .................................3
(4) Liability of Holder For Taxes .........................................4
(5) Representations and Warranties on Deposit of Shares by Depositor ......5
(6) Charges of Depositary..................................................5
(7) Disclosure of Interests ...............................................6
(8) Title to Receipts......................................................8
(9) Validity of Receipt ...................................................8
(10) Available Information ................................................9
Signature of Depositary....................................................9
Address of Principal Office ...............................................9
FORM OF REVERSE OF RECEIPT- Summary of Certain Additional Provisions of the
Depositary Agreement .........................................................10
(11) Dividends and Distributions: Rights .................................10
(12) Record .Dates .......................................................11
(13) Voting of Shares ....................................................12
(14) Changes Affecting Deposited Securities ..............................14
(15) Reports: Inspection of Transfer Books................................15
(16) Withholding .........................................................15
(17) Liability of the Company and Depositary..............................16
(18) Pre-Release of Shares and Receipts ..................................17
(19) Resignation and Removal of Depositary: Substitution of Custodian ....18
(20) Amendment of Deposit Agreement and Receipts .........................19
(21) Termination of Deposit Agreement ....................................19
(22) Retention of Depositary Documents ...................................20
(23) Power of Attorney ...................................................20
(24) Compliance with U.S. Securities Laws ................................20
EXHIBIT B: DEPOSITARY FEES AND RELATED CHARGES ................................1
iii
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of November 19, 1997,
among GROUPE DANONE, a corporation 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 evidenced by American Depositary Receipts issued
hereunder.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary have, pursuant to the terms of a
Deposit Agreement, dated December 3, 1990, as amended by Amendment No. 1 to
Deposit Agreement, dated as of October 7, 1994, and Amendment No. 2 to Deposit
Agreement, dated as of June 1, 1997 (as so amended, the "Original Deposit
Agreement"), established an ADR facility enabling the deposit of ordinary
shares, nominal value of (euro).50 per share (the "Shares") of the Company from
time to time with the Custodian, which at the date hereof is Credit Lyonnais
(Paris), as agent of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares so deposited and for the execution and delivery of American Depositary
Receipts in respect of such American Depositary Shares; and
WHEREAS, the Company intends to list the American Depositary Shares on the
New York Stock Exchange (the "Listing"); and
WHEREAS, in connection with the Listing, the Company and the Depositary
wish to amend and restate the Original Deposit Agreement upon the terms set
forth herein;
NOW, THEREFORE, in consideration of the premises, the parties agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
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SECTION 1.01. American Depositary Shares. The term "American Depositary
Shares" shall mean the rights and interests in the Deposited Securities created
by the Deposit Agreement and by the Receipts (as hereinafter defined) issued
thereunder. As of this date, each American Depositary Share represents one-fifth
of a Share (as hereinafter defined), until there shall occur a distribution upon
Deposited Securities covered by Section 4.04 or a change in Deposited Securities
covered by Section 4.09 with respect to which additional Receipts are not
executed and delivered, and thereafter American Depositary Shares shall
represent the Shares or Deposited Securities specified in such Sections.
SECTION 1.02. Beneficial Owner. The term "Beneficial Owner" shall mean any
person or entity having a beneficial interest deriving from the ownership of an
American Depositary Share. A Beneficial Owner may or may not be a Holder of the
Receipt evidencing such American Depositary Share. It is, however, understood
that the term "Beneficial Owner" shall not include any agent or financial
intermediary holding an interest in a Receipt solely to the extent such interest
is held for or on behalf of a Beneficial Owner.
SECTION 1.03. Commission. The term "Commission" shall mean the Securities
and Exchange Commission of the United States or any successor governmental
agency in the United States.
SECTION 1.04. Company. The term "Company" shall mean GROUPE DANONE, a
corporation organized and existing under the laws of the Republic of France,
having its registered office at ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, and its
successors.
SECTION 1.05. Custodian; Custodians. The term "Custodian" shall mean, as
of the date hereof, Credit Lyonnais (Paris) having it principal office at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ as custodian and agent of the Depositary
for the purposes of this Deposit Agreement, and any other firm or corporation
which may be appointed by the Depositary pursuant to the terms of Section 5.06,
as a substitute or an additional custodian or custodians hereunder, as the
context shall require, and the term "Custodian" shall mean all of them,
collectively.
SECTION 1.06. Deposit, Surrender, Delivery. The terms "deposit",
"surrender", or "delivery", when used with respect to Shares, shall refer, where
the context requires, to an entry or entries in an account or accounts
maintained by institutions authorized under French law to effect transfers
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of securities, and not to the physical transfer of certificates representing the
Shares.
SECTION 1.07. Deposit Agreement. The term "Deposit Agreement" shall mean
this Amended and Restated Deposit Agreement as it may from time to time be
amended in accordance with the terms hereof and all instruments supplemental
hereto.
SECTION 1.08. Depositary. The term "Depositary" shall mean Citibank, N.A.,
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
of America, and any successor as depositary hereunder.
SECTION 1.09. Deposited Securities. The term "Deposited Securities" as of
any time shall mean Shares (as hereinafter defined) at such time deposited
(whether by delivery of physical certificates, electronic transfer, or
otherwise) or deemed to be deposited under this Deposit Agreement and any and
all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject in the
case of cash to the provisions of Section 4.06.
SECTION 1.10. Dollars; Francs; FF. The term "dollars" shall mean United
States dollars. The term "Francs" or "FF" shall mean the lawful currency of The
Republic of France.
SECTION 1.11. Holder. The term "Holder" shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.12. Nominee. The term "Nominee" when used with respect to the
Depositary shall mean such nominee or nominees as the Depositary shall appoint
from time to time to act on its behalf in connection with the performance of its
duties and obligations under this Deposit Agreement. The Nominee may be the
Custodian or another French entity entitled to act as nominee under relevant
French laws and regulations. The Nominee shall perform such duties under this
Deposit Agreement to the extent the Depositary designates in its appointment of
the Nominee. Such appointment may be evidenced by written agreement, letter,
telegram, telex or facsimile transmission or orally with subsequent confirming
agreement, letter, telegram, telex or facsimile transmission.
SECTION 1.13. Principal Office. The term "Principal Office", when used
with respect to the Depositary, shall be the Corporate Agency Office of the
Depositary at which at any particular time its depositary
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receipts business shall be administered, which, currently the Depositary's
Corporate Agency Office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. The Depositary's Corporate Agency Office is at a
different address than its Principal Executive Office. Its Principal Executive
Office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 1.14. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares, as
such American Depositary Receipts may be amended from time to time in accordance
with the provisions of this Deposit Agreement. A Receipt may evidence any number
of American Depositary Shares.
SECTION 1.15. Registrar. The term "Registrar" shall mean, as of the date
hereof, Citibank, N.A., and any bank or trust company having an office in the
Borough of Manhattan, The City of New York, which shall be appointed by the
Depositary, upon the request or with the approval of the Company, to register
Receipts and transfers of Receipts as herein provided, and shall include any
co-registrar appointed by the Depositary, upon the request or with the approval
of the Company, for such purposes.
SECTION 1.16. Restricted Securities. The term "Restricted Securities"
shall mean Shares or American Depositary Shares representing such Shares which
are (a) subject to resale limitations under the Securities Act of 1933 (as
hereinafter defined) or the rules issued thereunder (including, without
limitation, Rule 144), or (b) held by an executive officer or director (or
person performing similar functions) or other affiliate (as such term is defined
in the Securities Exchange Act of 1934) of the Company, or (c) subject to other
restrictions on sale or deposit under the laws of the United States or The
Republic of France or under any agreement or the Statuts (as hereinafter
defined) of the Company.
SECTION 1.17 Securities Act of 1933. The term "Securities Act of 1933"
shall mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.18. Securities Exchange Act of 1934. The term "Securities
Exchange Act of 1934" shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION 1.19. Shares. The term "Shares" shall mean ordinary shares, in
bearer form (i.e. registered as "titres au porteur" with the Societe
Interprofessionnelle pour la Compensation des Valeurs Mobilieres, an
organization that, inter alia, maintains shares and other securities accounts of
French listed companies), (euro).50 nominal value per share, of the Company and
shall include evidence of rights to receive Shares; provided, however, that, if
there shall occur any change in nominal value, a split-up
4
or consolidation, cancellation or any other reclassification or, upon the
occurrence of an event described in Section 4.09, an exchange or conversion in
respect of the ordinary shares of the Company, the term "Shares" shall
thereafter mean the successor securities resulting from such change in nominal
value, split-up or consolidation or such other reclassification or such exchange
or conversion.
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇. The term "United States" shall mean the
United States of America, its territories and possessions, any State of the
United States, and the District of Columbia.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts
shall be engraved, printed or lithographed on steel-engraved borders or in such
other form as may be agreed upon by the Company and the Depositary, and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Such Receipts shall be executed and dated by the
Depositary by the manual signature of a duly authorized officer of the
Depositary; provided, however, that such signature may be a facsimile if a
Registrar for the Receipts shall have been appointed and such Receipts are
countersigned by the manual signature of a duly authorized officer of the
Registrar and dated by such officer. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless such Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar shall have been
appointed, by the manual signature of a duly authorized officer of the
Registrar, and such execution of any Receipt by manual signature shall be
conclusive evidence, and the only evidence, that such Receipt has been duly
executed and delivered hereunder. The Depositary shall maintain books in which
each Receipt so executed and delivered as hereinafter provided and the transfer
of each such Receipt shall be registered. Receipts bearing the manual or
facsimile signature of a duly authorized officer of the Depositary, who was at
any time a proper officer of the Depositary, shall bind the Depositary,
notwithstanding the fact that such officer has ceased to hold such office prior
to the execution of such Receipts by the Registrar and their delivery or such
officer did not hold such office at the date of such Receipts.
5
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be necessary to enable the Depositary to perform its
obligations hereunder or as may be required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange or market upon which American Depositary Shares may be traded or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to each American Depositary Share evidenced
thereby), when such Receipt is properly endorsed or accompanied by proper
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that the Company
and the Depositary, notwithstanding any notice to the contrary, may treat the
Holder thereof as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares may be deposited by any person including the
Depositary in its individual capacity by delivery thereof to the Custodian,
accompanied by any appropriate instrument or instruments of transfer or
endorsement, in form satisfactory to such Custodian including by electronic
transfer thereof to the account maintained by the Custodian designated for such
purpose, together with all such certifications as may be required by the
Depositary or such Custodian in accordance with the provisions of this Deposit
Agreement, and together with a written order directing the Depositary to execute
and deliver to, or upon the written order of, the person on persons stated in
such order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited. No Shares shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary (which may be an
opinion of counsel) that any necessary approval has been granted by (i) the
governmental agency in The Republic of France, if any, that is then performing
the function of the regulation of currency exchange,
6
and (ii) the governmental authority or body in France, if any, that is then
performing the function of the regulation of foreign ownership of French
companies, and the Company agrees that it will not, and will not permit any of
its affiliates to, deposit any Shares in respect of which any such necessary
approval has not been granted. If required by the Depositary, Shares presented
for deposit (including deposits by electronic transfer) at any time, whether or
not the transfer books of the Company are closed, shall also be accompanied by
an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary of any dividend or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of any such deposited Shares, or in lieu thereof, such
agreement of indemnity or other agreement as shall be satisfactory to the
Depositary.
At the request and risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
together with the other instruments herein specified, for the purpose of
forwarding such Shares to the Custodian for deposit hereunder.
Upon each delivery (including deposits by electronic transfer) to a
Custodian of Shares to be deposited hereunder, together with the other documents
above specified, such Custodian shall, as soon as transfer and recordation can
be accomplished, transfer and record the Shares being deposited in the name of
the Depositary or its Nominee or such Custodian or its Nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine. As long as any Shares are held pursuant to
this Deposit Agreement, the Depositary shall use its best efforts to cause the
Custodian to hold at least one Share issued in registered form in its own name.
SECTION 2.03. Execution and Delivery of Receipts. Upon receipt by a
Custodian of a deposit pursuant to Section 2.02 hereunder (and in addition, if
the transfer books of the Company are open, a proper acknowledgment or other
evidence from the Company or the appointed agent of the Company for transfer and
registration of the Shares, satisfactory to the Depositary that any Deposited
Securities are properly held by the Depositary or such Custodian), together with
the other documents required as above specified, such Custodian shall notify the
Depositary of such deposit and the
7
person or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request and risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. Upon receiving such notice from such Custodian, the
Depositary or its agent, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Corporate Agency Office to or upon
the order of the person or persons named in the notice delivered to the
Depositary, a Receipt or Receipts, registered in the name or names requested by
such person or persons and evidencing in the aggregate the number of American
Depositary Shares to which such person is entitled, but only upon payment to the
Depositary of the fee, if any, of the Depositary for the issuance, execution and
delivery of such Receipt or Receipts (as set forth on Exhibit B hereto) and of
all taxes and governmental charges and fees, if any, payable in connection with
such deposit and the transfer of the deposited Shares.
SECTION 2.04. Transfer of Receipts: Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit Agreement
and any Receipt, shall register transfers of Receipts on its transfer books,
upon any surrender of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer and duly stamped as may be required by the laws of the State of New
York, the United States of America. Thereupon the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, representing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender at the Corporate Agency Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt or representing such
person's beneficial interest, and upon payment of the fee, if any, of the
Depositary for the surrender and cancellation of Receipts (as set forth on
Exhibit B hereto) and subject to the terms
8
and conditions of this Deposit Agreement, the Holder of such Receipt shall be
entitled to delivery, to him or upon his order, of the Deposited Securities at
the time represented by the American Depositary Shares evidenced by such Receipt
or representing such person's beneficial interest. Delivery of such Deposited
Securities may be made by the delivery to such Holder or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed or accompanied by proper instruments of transfer, and
the Holder thereof shall execute and deliver 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 a person or persons designated in such
order. Thereupon the Depositary shall direct the Custodian to deliver at the
office of the Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as provided above, the Deposited Securities represented by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Agency Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward a certificate or certificates and other proper documents of title for
the Deposited Securities represented by such Receipt to the Depositary for
delivery at the Corporate Agency Office of the Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Etc. of
Receipts, Suspension of Delivery, Transfer, Etc. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Company or the Custodian may require payment
from the presenter of the Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge
9
and fee with respect to Shares being deposited or Deposited Securities
withdrawn) and payment of any applicable fees as herein provided, and may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any laws or
governmental regulations relating to American depositary receipts or to the
withdrawal of Deposited Securities.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer generally may be suspended, during any period when the transfer
books of the Depositary or the appointed agent for the Company for the transfer
and registration of Shares 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 or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement or the Company's Articles of Association ("Statuts") or for any other
reason. Notwithstanding any other provision of this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended, except as required in connection with (i) temporary delays caused
by closing the transfer books of the Depositary or the Company (or the appointed
agent for the Company for the transfer and registration of Shares) or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares. The Depositary will comply with
written instructions from the Company requesting that the Depositary not accept
for deposit hereunder any Shares or rights identified in such instructions in
order to facilitate the Company's compliance with U.S Federal and State
securities laws.
SECTION 2.07. Lost Receipts. Etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor, in exchange and
10
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt, upon the Holder
thereof filing with the Depositary (a) a request for such execution and delivery
before the Depositary has notice that the Receipt has been acquired by a bona
fide purchaser and (b) a sufficient indemnity bond and satisfying any other
reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts physically surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled receipts shall not be entitled to any benefits under this
Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy physically surrendered Receipts so cancelled. The
Depositary agrees to maintain records of all Receipts cancelled or destroyed
under this Section 2.08, in accordance with procedures customarily followed by
stock transfer agents located in New York City.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Holder or Beneficial Owner of a
Receipt may be required from time to time to file such proof of citizenship,
residence or exchange control approval, payment of applicable French or other
taxes or governmental charges, to provide information relating to the
registration on the books of the Company or the appointed agent of the Company
for the transfer and registration of Shares presented for deposit or other
information, to execute such certificates and to make such representations and
warranties as the Depositary may deem necessary or proper to comply with
applicable laws or regulations or to enable the Depositary or the Company to
perform its obligations hereunder. The Depositary may withhold the execution or
delivery or registration of transfer of all or part of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed. The Depositary
shall provide the Company, in a timely manner, with copies of any such proofs
and certificates and such written representations and warranties as aforesaid
which it receives.
11
SECTION 3.02. Liability of Holder for Taxes. If any French or other tax or
other governmental charge shall become payable with respect to any Deposited
Securities represented by the American Depositary Shares evidenced by any
Receipt, such tax or other governmental charge shall be payable by the Holder of
such Receipt to the Depositary. The Depositary may refuse and the Company shall
be under no obligation, to effect any registration of transfer of all or part of
such Receipt or any withdrawal of Deposited Securities represented thereby until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Holder and Beneficial Owner thereof any part or
all of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge, the Holder and Beneficial Owner of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares are validly issued, fully paid and
non-assessable and any preemptive rights have been validly waived and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent and warrant that the Shares being deposited and the
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and the issuance of Receipts in respect thereof. If 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 reasonably necessary to correct the consequences thereof.
SECTION 3.04. Disclosure of Interests. For purposes of this Section 3.04
only, the term "Shares" shall mean any shares issued by the Company, including
bearer and registered shares. Notwithstanding any other provisions of this
Deposit Agreement, each Holder and Beneficial Owner agrees to comply with the
Company's Statuts, as they may be amended from time to time, and the laws of the
Republic of France with respect to the disclosure requirements regarding
ownership of Shares, all as if such Receipts were to the extent practicable the
Shares represented thereby. As of the date of this Agreement, such disclosure
requirements are as follows:
12
Pursuant to the Company's Statuts, any person or entity that becomes or
ceases to be the owner of Shares or shares assimilated to Shares (which include
American Depositary Shares), as discussed below in this Section 3.04, equal to
1% of the voting rights of the Company or a multiple thereof must notify the
Company by registered letter (return receipt requested) of the total number of
Shares and voting rights held by it, no later than 15 days after acquiring or
selling such amount. In order to facilitate compliance with these notification
requirements, a Holder or Beneficial Owner may deliver such notification to the
Depositary in respect to Shares represented by American Depositary Shares held
by such Holder or Beneficial Owner, and the Depositary shall, as soon as
practicable after receipt thereof, forward such notification to the Company.
In the event that a holder fails to comply with the above requirements of
the Company's Statuts, and upon request of a holder or holders of 5% or more of
the voting rights of the Company, such holder shall not be permitted, in
accordance with, and subject to the limitations provided under, French law, to
exercise voting rights or grant proxies therefor with respect to any Shares
exceeding the above-mentioned thresholds at any shareholders' meeting for a
period of two years from the date the required notification has been received.
Pursuant to the Law on the Security and Transparency of Financial Markets
of August 2, 1989, as amended, any person or entity acting alone or in concert
with others that acquires, directly or indirectly, more than one-twentieth,
one-tenth, one-fifth, one-third, one-half or two-thirds of the total number of
Shares or voting rights (or Shares or voting rights assimilated thereto (which
include American Depositary Shares), as discussed below in this Section 3.04),
must so notify the Company within 15 calendar days and the Conseil des Marches
Financiers in each case after the date such threshold has been crossed of the
number of Shares it holds and the voting rights attached thereto. A holder of
Shares is also required to notify the Company and the Conseil des Marches
Financiers if the percentage of Shares or voting rights owned by such holder
falls below the levels described in the previous sentence. In order to permit
holders of Shares to give the notice required by law, the Company is obligated
to file with the Bulletin des Annonces Legales Obligatoires ("BALO") within 15
days of the Company's annual general meeting, information with respect to the
total number of votes available as of the date of such meeting. In addition, if
the number of available votes changes by more than 5%, the Company is required
to notify the BALO, within 15 days of such change, of the number of votes then
available.
13
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 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 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 years, and such Holder or Beneficial Owner may
be subject to criminal penalties.
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. The Depositary hereby
agrees to provide to the Company, upon the Company's reasonable request, any
information readily available to it relating to the persons or entities holding
American Depositary Shares representing the Shares.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of a Receipt issued in accordance with the terms hereof, thereby
appoints the Depositary its attorney-in-fact, with full power to delegate, to
act on its behalf and to take any and all steps or action provided for or
contemplated herein with respect to the Deposited Securities, including but not
limited to those set forth in Article IV, and to take such further steps or
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement.
14
SECTION 4.02. Cash Distributions; Withholding. Whenever the Depositary is
notified by the Custodian of the receipt of any cash dividend or other cash
distribution by the Company on any Deposited Securities, the Depositary shall,
or shall cause its agent to, subject to the provisions of Section 4.06, convert
such dividend or distribution into dollars and shall as promptly as practicable
remit the amount thus received to the Depositary which shall distribute promptly
such amount to the Holders of Receipts entitled thereto in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively after deduction or upon payment of the fees and expenses of
the Depositary as set forth in Exhibit B hereto; provided, however, that in the
event that the Company, the Custodian or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holder of Receipts in
respect of American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder of a Receipt a
fraction of one cent, and any balance not so distributable 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 Receipts then outstanding. The Company or its agent or the Depositary
or its agent, as appropriate, will remit to the appropriate governmental
authority or agency in the Republic of France or any other relevant jurisdiction
all amounts withheld and owing to such authority or agency. Evidence of
remittance thereof by the Company or its agent to such governmental authority or
agency shall be forwarded by the Company to the Depositary promptly upon
request. The Depositary and the Custodian shall not be required to provide the
Holders or the Beneficial Owners with evidence of such remittance by the Company
of taxes withheld or, of the payment of any taxes by the Company, except to the
extent the evidence has been provided by the Company (or its agent) to the
Depositary. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental authorities or
agencies, and either the Depositary, a Custodian or the Company or its agent, as
appropriate, may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Holders of Receipts.
15
SECTION 4.03. Distributions Other than Cash pr Shares. Whenever the
Custodian shall receive any distribution other than cash or Shares upon any
Deposited Securities, the Depositary shall cause the securities or property
received by the Custodian to be distributed to the Holders of Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the reasonable opinion of the
Depositary it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders of Receipts
entitled thereto, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes or other
governmental charges) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may reasonably deem equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash in accordance with Section 4.02, provided that any
unsold balance of such securities or property shall be distributed by the
Depositary to the Holders of Receipts entitled thereto in accordance with such
equitable and practicable method as the Depositary shall have reasonably
adopted.
SECTION 4.04. Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may, with the Company's approval, and shall, if the Company shall
so request, distribute to the Holders of outstanding Receipts entitled thereto,
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary shall
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.02. If additional Receipts are not so distributed (except
as pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In addition, the
16
Depositary may withhold any distribution of Receipts under this Section 4.04 if
it has not received satisfactory assurances from the Company's counsel that such
distribution does not require registration under the Securities Act of 1933 or
is exempt from registration under the provisions of the Securities act of 1933.
SECTION 4.05. Rights.
(a) Distribution to Holders. Upon receipt of a notice indicating that the
Company intends to distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares (or any rights of any other nature), the
Depositary shall consult with the Company to determine whether it is lawful and
feasible to make such rights available to the Holders. The Depositary shall make
such rights available to Holders if the Company shall have provided to the
Depositary, upon the Depositary's reasonable request, the documentation
contemplated in Section 5.08 and the Depositary shall have determined that such
distribution of rights is lawful and feasible. In the event such conditions set
forth above are satisfied, the Depositary shall establish a record date (upon
the terms described in Section 4.07) and establish procedures to distribute such
rights (by means of warrants or otherwise) to the Holders entitled thereto in
proportion to the number of ADSs representing Deposited Securities held by them,
respectively, and to enable the Holders to exercise, sell or transfer the rights
(upon payment of (a) the applicable fees and charges of, and expenses incurred
by, the Depositary and (b) applicable taxes). The Depositary shall consult with
the Company to the extent necessary in establishing such procedures.
In circumstances in which rights would otherwise not be distributed, if a
Holder requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the Holder's American Depositary Shares, the
Depositary will to the extent lawful and feasible promptly make such rights
available to such Holder upon receipt of (a) a written notice from the Company
to the Depositary that (i) the Company has elected in its sole discretion to
permit such rights to be exercised by such Holder and (ii) such Holder has
executed such documents as the Company has determined
17
in its sole discretion are reasonably required under applicable laws, and (b)
the documentation contemplated in Section 5.08.
(b) Sale of Rights. If the Depositary determines it is not lawful or
feasible to make the rights available to all or certain Holders, or any rights
made available are not exercised and appear to be about to lapse, the Depositary
shall use its best efforts to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public and private sale)
as it may reasonably deem proper. The Depositary shall consult with the Company
to the extent necessary to determine such legality and feasibility. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
to the Holders to whom it has determined that it may not lawfully or feasibly
make such rights available (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) applicable taxes).
(c) Exercise of Rights. If the Depositary has distributed warrants or
other instruments for rights to all or certain Holders, then upon instruction
from such a Holder pursuant to such warrants or other instruments to the
Depositary to exercise such rights, upon payment by such Holder to the
Depositary for the account of such Holder of an amount equal to the purchase
price of the Shares to be received upon the exercise of the rights, and upon
payment of the fees of the Depositary and any other charges as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Holder,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Custodian, in each case on behalf of
such Holder. As agent for such Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement,
and shall, pursuant to Section 2.03 of this Deposit Agreement, execute and
deliver Receipts to such Holder. In the event that any Shares deposited in
accordance with this paragraph have rights in respect of any distribution of
cash, securities, or other properties or Shares which are different from the
rights of other Deposited Securities by reason of date of issuance or otherwise,
any Receipts executed and from any CUSIP number that is or may be assigned to
any other Receipts issued delivered in respect of such Shares ("Rights
Receipts") shall bear a CUSIP number that is different hereunder and may be
endorsed with such legend as the Depositary and the Company may agree. Rights
Receipts shall be treated for all other purposes as identical to Receipts and on
such date, pursuant to procedures to be established by the Depositary in
18
consultation with the Company, that they become entitled to the same rights in
respect of distributions, they shall become fungible with, and be converted
automatically into, Receipts. Until such date, the Depositary will instruct the
Custodian to place any Deposited Securities in respect of which such Rights
Receipts are issued into a segregated account separate from any other Shares
held by the Custodian under this Deposit Agreement or any other depositary
receipt facility relating to the Shares.
(d) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.05(a) or to arrange
for the sale of the rights upon the terms described in Section 4.05(b), the
Depositary shall allow such rights to lapse.
(e) Except as otherwise provided herein, the Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.05, the
Depositary will not distribute rights or the securities to which any rights
relate to the Holders unless and until (i) a registration statement under the
Securities Act covering such offering is in effect or (ii) the offering and sale
of such securities to the Holders of such Receipts are exempt from registration
under the provisions of the Securities Act. 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 Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
19
and conditions as the holders of Shares or to receive such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
SECTION 4.06. Conversion of Foreign Currency. Whenever the Depositary
shall receive foreign currency, by way of dividends or other distributions or
the net proceeds from the sale of securities, property or rights, and if at the
time of the receipt thereof the foreign currency so received can in the judgment
of the Depositary (in light of applicable law) be converted on a reasonable
basis into dollars distributable to the Holders of the Receipts entitled thereto
and the resulting dollars transferred to the United States, the Depositary shall
promptly convert or cause to be converted, by sale or in any other manner
permitted by law, such foreign currency into dollars, and such dollars (less any
reasonable and customary expenses incurred by the Depositary in the conversion
of the foreign currency) shall promptly be distributed to the Holders of
Receipts entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion with regard to a particular Holder or distribution can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall file such application for approval or license, if
any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not (in light of applicable law)
convertible on a reasonable basis into dollars distributable to the Holders of
Receipts entitled thereto, or if any approval or license of any government or
authority or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary is not obtainable, or if any such approval or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary shall (a) as to that portion of the foreign currency
that is convertible into dollars, make such conversion and, if permitted by
applicable law, transfer such dollars to the United States for distribution to
Holders in accordance with the first paragraph of this Section 4.06 and (b) as
20
to the nonconvertible balance, if any, (i) if requested in writing by a Holder,
distribute or cause the Custodian to distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary or Custodian to such Holder and (ii) hold or cause
the Custodian to hold any amounts of non convertible foreign currency not
distributed pursuant to the immediate preceding subclause (i) uninvested and
without liability for interest thereon for the respective accounts of the
Holders entitled to receive the same.
SECTION 4.07. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary finds it necessary or
convenient in respect of any matter, the Depositary shall fix a record date
after consultation with the Company (which shall be as near as practicable to
the record date for Shares set by the Company having regard for the rules of the
exchange on which the American Depositary Shares are listed) (a) for the
determination of the Holders of Receipts who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or (b)
for determining the date on or after which each American Depositary Share will
represent the changed number of Shares, subject in each case to the terms and
conditions of this Deposit Agreement. Subject to the provisions of Sections 4 01
through 4.06 and to the other terms and conditions of this Deposit Agreement,
only the Holders of Receipts at the close of business in New York on such record
date shall be entitled to receive the amount distributable by the Depositary
with respect to such dividend or other
21
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively, to give such
voting instructions or to receive such changed number of Shares.
SECTION 4.08. Voting of Shares. Upon receipt of notice of any meeting of
holders of Shares or other Deposited Securities, the Depositary shall, as soon
as practicable thereafter, mail to the Holders of Receipts (A) a notice in
English, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (i) such information as is contained in such
notice of meeting, and (ii) a statement that the Holders as of the close of
business in New York on a record date established by the Depositary pursuant to
the terms of this Deposit Agreement will be entitled, subject to any applicable
provisions of French law and the Statuts of the Company and the terms of the
Deposited Securities (which provisions, if any, will be summarized by the
Company and provided to the Depositary for inclusion in such statement), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
such Holder's American Depositary Shares, (B) a voting instruction card to be
prepared by the Depositary and the Company (a "Voting Instruction Card") setting
forth, inter alia, the date established by the Depositary for the receipt of
such Voting Instruction Card (the "Cut-off Date") and (C) copies or summaries in
English of any materials provided by the Company for the purpose of enabling the
Holders to give instructions for the exercise of such voting rights. Voting
instructions may be given only in respect of a number of American Depositary
Shares representing an integral number of Shares.
As a precondition for exercising any voting rights, any persons holding
American Depositary Shares who are not the Holders of the Receipt(s) registered
in name on the books of the Depositary evidencing such American Depositary
Shares (e.g., persons holding their American Depositary Shares through The
Depository Trust Company) must arrange for the delivery in a blocked account
("Blocking"), established for such purposes by the Depositary, of the relevant
number of American Depositary Shares for the period to commence on the date to
be fixed by the Depositary (on a date which shall be as near as practicable to
the corresponding date established by the Company in France in respect of the
Shares) after consultation with the Company and set forth on the Voting
Instruction Card, until the completion of such meeting (the "Blocked Period").
The Depositary will use its best efforts to implement and maintain procedures to
allow for the Blocking of American Depositary Shares
22
as contemplated by the preceding sentence. Holders of Receipts registered in
name on the books of the Depositary (other than the Depository Trust Company)
will not, as a precondition for exercising voting rights, be required to deliver
their American Depositary Shares to the Depositary for Blocking but will be
required to irrevocably instruct the Depositary not to transfer the Receipts
(and not to cancel such Receipts upon receipt of cancellation and withdrawal
instructions) evidencing the American Depositary Shares in respect of which
voting instructions have been given ("Stop Transfer Instructions"). The
Depositary shall, upon receipt of such Stop Transfer Instructions, refuse to
transfer (and cancel Receipts upon receipt of cancellation and withdrawal
instructions) the Receipts indicated in such Stop Transfer Instructions, during
the Blocked Period.
Upon receipt by the Depositary from a Holder of American Depositary Shares
of (i) a properly completed Voting Instruction Card on or before the Cut-off
Date and (ii) either the requisite number of American Depositary Shares
delivered for Blocking or duly completed Stop Transfer Instructions, the
Depositary will, in respect of such American Depositary Shares, forward the
voting instructions contained in the Voting Instruction Card to the Custodian
and will instruct the Custodian to use reasonable efforts, insofar as practical
and permitted under any applicable provisions of French law and the Statuts of
the Company, to vote or cause to be voted the Shares represented by such
American Depositary Shares in accordance with the instructions set forth in such
Voting Instruction Card. The Depositary will only vote, or cause to be voted, or
attempt to exercise the right to vote that attaches to, Shares represented by
American Depositary Shares in respect of which a properly completed Voting
Instruction Card has been received. In the case of a Voting Instruction Card
received in respect of any holder of American Depositary Shares who is not the
Holder of the Receipt evidencing such American Depositary Shares on the books of
the Depositary, the Depositary will not vote or cause to be voted the number of
Shares represented by such American Depositary Shares unless the Depositary has
received verification that such number of American Depositary Shares has been
deposited in a blocked account for the Blocked Period by such person. The
Depositary will not vote, or cause to be voted, or attempt to exercise the right
to vote that attaches to, Shares represented by American Depositary Shares 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.
23
As each American Depositary Share represents one-fifth of a Share as of
this date, voting rights may be exercised only in respect of five American
Depositary Shares, or multiples thereof.
Holders of American Depositary Shares who wish to attend any meeting of
the Company's shareholders in person will need to make separate arrangements
therefore with the Depositary.
According to French law and the Company's Statuts, only holders of Shares
who hold their Shares in registered form for at least two years will be entitled
to double voting rights. Holders of Receipts (which evidence American Depositary
Shares representing Shares in bearer form) will not be entitled to double voting
rights.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Depositary and the Company may modify or amend the above voting procedures or
adopt additional voting procedures from time to time as they determine may be
necessary or appropriate to comply with French or United States law or the
Statuts of the Company.
SECTION 4.09. Changes Affecting Deposited Securities. Upon any change in
nominal value, split-up, consolidation, cancellation 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 in respect of
Deposited Securities shall be treated as new Deposited Securities, and the
American Depositary Shares shall thenceforth represent the new Deposited
Securities so received in exchange or conversion, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Section in respect of the Deposited Securities, the Company
shall notify the Depositary in writing of such occurrence and, as soon as
practicable after receipt of such notice from the Company, the
24
Depositary shall give notice thereof, at the Depositary's expense, in writing to
all Holders of Receipts.
SECTION 4.10. Available Information. The Company is subject to the
reporting requirements of the Securities Act of 1934 applicable to foreign
private issuers and, in accordance therewith, files reports and other
information with the Commission. Such information may be inspected by Holders or
Beneficial Owners of Receipts and copied at public reference facilities
maintained by the Commission located at ▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
SECTION 4.11. Reports. The Depositary shall make available for inspection
by Holders of Receipts at its Corporate Agency Office and at the office of each
Custodian any reports and communications received from the Company which are
both (a) received by the Depositary or a Custodian or the nominee of either as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
send to Holders of Receipts copies of such reports when furnished by the Company
to the Custodian and Depositary upon the terms set forth in Section 5.07.
SECTION 4.12. Lists of Receipt Holders. Promptly upon request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the transfer books of the Depositary.
SECTION 4.13. Withholding. In connection with any distribution to Holders,
the Company or its agent will remit to the appropriate governmental authority or
agency all amounts (if any) required under applicable law to be withheld and
remitted by the Company or such agent. The Depositary and the Custodian will
remit to the appropriate governmental authority or agency all amounts (if any)
required under applicable law to be withheld and remitted by the Depositary or
the Custodian. The Depositary shall forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental authorities or
agencies.
Notwithstanding any other provision of this Deposit Agreement, in the
event that the Depositary determines that any distribution in property
(including Shares or rights to subscribe therefor) is subject to any taxes or
governmental charges which the Depositary is obligated to withhold, the
Depositary
25
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes or governmental charges, including
by public or private sale, and the Depositary shall distribute the net proceeds
of any such sale and the balance of any such property after deduction of such
taxes or governmental charges to the Holders of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively.
The Depositary agrees to use reasonable efforts to establish procedures
acceptable to the French tax authorities to enable eligible US resident
Beneficial Owners to recover any excess French withholding taxes initially
withheld or deducted from dividends and other distributions of the Company to
such US resident Beneficial Owners and to receive any payment in respect of the
"avoir fiscal" for which such Beneficial Owners may be eligible from the French
Treasury. Upon request of any US resident Beneficial Owner who certifies to the
Depositary that it has not already applied for or received a tax refund from the
French tax authorities or that such U.S. resident Beneficial Owner's application
for such a refund has been rejected, the Depositary will provide a copy of the
French form being prescribed for use by the French tax authorities at the time
of such request for the filing of an application for such refunds ("Application
for Refund"), together with instructions to such Beneficial Owner and will
arrange for the filing with the French tax authorities of all such Applications
for Refunds if properly completed by such US resident Beneficial Owner and
timely returned to the Depositary so as to enable the timely filing of such
Application for Refund with the French tax authorities.
In addition, the Depositary will use reasonable efforts to establish
procedures acceptable to the French tax authorities for eligible U.S. resident
Holders to be subject to a reduced withholding rate of 15%, if available, at the
time dividends are paid. In connection therewith, the Depositary shall take
reasonable steps to provide eligible U.S. resident Holders with such forms as
may be prescribed by the French Treasury and to take such other reasonable steps
as may be required to file such forms with the appropriate French tax
authorities.
The Company shall as soon as practical after the due date for any payment
of any tax or other governmental charge to the French tax authorities with
respect to any distribution relating
26
to Deposited Securities provide the Depositary with an official receipt from the
French tax authorities (or certified copies thereof) setting forth the amounts,
if any, of tax or other government charge so paid to the French tax authorities.
The Depositary shall, for a period of five years after the date of any such
payment of tax or other government charge, maintain such receipt or other
documents received from the Company in its files and shall, upon request,
provide a copy of such receipt or other documents to the Holders and Beneficial
Owners of the American Depositary Shares representing such Deposited Securities
evidenced by Receipts held at the time of such distribution by such Holder or
Beneficial Owner.
ARTICLE V
THE DEPOSITARY. THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Holders of Receipts, provided that such inspection shall not to the
Depositary's knowledge be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books (but only after consultation
with the Company to the extent practicable, if such closure is outside the
ordinary course of the Depositary's business), at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder or at the reasonable request of the Company.
The Depositary shall act as Registrar or, with the approval of the
Company, appoint a Registrar or one or more co-registrars for registry of such
Receipts in accordance with any requirements of the U.S. exchange or exchanges
on which the American Depositary Shares are listed. Such Registrar or co-
27
registrars may be removed and a substitute or substitutes appointed by the
Depositary upon the request or with the approval of the Company.
The Company shall have the right, upon reasonable request, to inspect the
transfer and registration records of the Depositary relating to the Receipts, to
take copies thereof and to require the Depositary and any co-registrars to
supply copies of such portions of such records as the Company may reasonable
request.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the
Company. Neither the Depositary nor the Company nor any of their directors,
employees, agents or controlling persons (as defined under the Securities Act of
1933) shall incur any liability to any Holder or Beneficial Owner of any
Receipt, if by reason of any provision of any present or future law of the
United States or of The Republic of France or any other country or jurisdiction,
or of any other governmental authority or stock exchange, or by reason of any
provision, present or future, of the Statuts of the Company, or by reason of any
act of God or war or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from doing or performing
any act or thing which by the terms of this Deposit Agreement it is provided
shall be done or performed; nor shall the Depositary or the Company incur any
liability to any Holder or Beneficial Owner of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in performance of any act or thing
which by the terms of this Deposit Agreement it is provided shall or may be done
or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders or Beneficial Owners of
Receipts, except that it agrees to use its best judgment and to act in good
faith in the performance of its obligations set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders or Beneficial Owners of
Receipts (including without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it agrees to use its best
judgment and to act in good faith in the performance of its duties set forth in
this Deposit Agreement.
28
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required, and
no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or Beneficial
Owner of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement.
The Depositary may own and deal in Receipts and, subject to the Statuts of
the Company and to the laws of the Republic of France, in any class of
securities of the Company and its affiliates.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.04. Pre-Release of Shares and Receipts. Subject to the further
terms and provisions of this Section 5.04, the Depositary and its agents, on
their own behalf, may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may issue Receipts for evidence
of rights to receive Shares from the Company, or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof. The Depositary shall not lend Shares
or Receipts; provided, however, that the Depositary may (i) issue Receipts prior
to the receipt of Shares pursuant to Section 2.03 ("Pre-release") and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in
29
lieu of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such transaction will be (a) accompanied by (x) a written
representation from the person to whom Receipts or Shares are to be delivered
that such person, or its customer, owns the Shares or Receipts to be remitted,
as the case may be, or (y) such evidence of ownership of Shares or Receipts, as
the case may be, as the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral of comparable safety and liquidity, (c) terminable by the Depositary
on no more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems reasonably
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such transactions at any one time to thirty percent (30%) of
the Receipts outstanding (without giving effect to Receipts outstanding under
(i) above), or Shares held hereunder, respectively; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary will also set limits with respect
to the number of Receipts and Shares involved in transactions to be effected
hereunder 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
connection with the foregoing. Such collateral, but not the earnings thereon,
shall be held for the benefit of the Holders only.
SECTION 5.05. Resignation and Removal of the Depositary: Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing
30
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor; but such predecessor,
nevertheless, upon payment of all sums due it and on the written request of the
Company shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Deposited Securities to such
successor, and shall deliver to such successor a list of the Holders of all
outstanding Receipts. Any such successor depositary shall promptly mail notice
of its appointment to the Holders of Receipts.
Any corporation into or with which the Depositary may be merged or
consolidated shall, with the consent of the Company (which shall not be
unreasonably withheld), be the successor of the Depositary without the execution
or filing of any document or any further act.
SECTION 5.06. The Custodian. The Depositary has initially appointed Credit
Lyonnais (Paris) as custodian and agent of the Depositary for the purpose of
this Deposit Agreement. The Custodian in acting hereunder shall be subject at
all times and in all respects to the direction of the Depositary and shall be
responsible solely to it. The Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become
effective. The Depositary shall, promptly after receiving such notice, appoint a
substitute custodian, after consultation with the Company, which shall
thereafter be the Custodian hereunder. Whenever the Depositary determines, in
its discretion, that it is in the best interest of the Holders and Beneficial
Owners of Receipts to do so, it may appoint a substitute or an additional
custodian, after consultation with the Company, which shall thereafter be
Custodian hereunder. Upon demand of the Depositary, the Custodian shall deliver
such of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary. Immediately upon any such change, the Depositary
shall give notice thereof in writing to all Holders of Receipts.
Upon the appointment of any successor depositary hereunder, any Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of
31
each Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.07. Notices and Reports. (a) On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company agrees to transmit to the Custodian a copy of the notice thereof (m
the English language) in the form given or to be given to holders of Shares or
other Deposited Securities.
(b) The Company will also promptly transmit to the Depositary (i)
summaries in English or English-language versions or any reports, notices and
other communications that are generally transmitted by the Company to holders of
its Shares or other Deposited Securities, (ii) English-language versions of the
Company's annual reports (including a review of operations and annual audited
consolidated financial statements prepared in accordance with generally accepted
accounting principles in France ("French GAAP"), together with a reconciliation
of certain items contained in such financial statements to generally accepted
accounting principles in the United States ("U.S. GAAP")), and (iii) semi-annual
interim reports in English (including unaudited interim summary consolidated
financial information prepared in accordance with French GAAP, together with a
reconciliation of certain items contained in such financial information to U.S.
GAAP). The Depositary will, after consultation with the Company, arrange for the
prompt mailing of copies to all Holders of Receipts of such notices and any
other reports and communications, including, without limitation, all documents
referred to in this Section 5.07.
SECTION 5.08. Issuance of Additional Shares, Etc. In the event of any
issuance of additional Shares or of other securities (including rights and
convertible or exchangeable securities) as a dividend or distribution with
respect to the Shares or other Deposited Securities evidenced by Receipts to the
holders of Shares, the Company agrees that with respect to such issuance to
holders, the Company will (i) forward to the Depositary written instructions as
to the manner in which the Depositary is to effect actual delivery and (ii) in
the event that the dividend or distribution to Holders is in a form
32
other than payment of cash, upon the Depositary's reasonable request, the
Company will promptly furnish to the Depositary a written opinion from counsel
for the Company in the United States stating that such dividend or distribution
will not violate the Securities Act of 1933.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Shares, either
upon original issuance or upon a sale of Shares previously issued and required
by the Company or by any company under its control unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or
unless the offering and sale of such Shares is exempt from registration under
the provisions of such Act or the transaction is exempt under such Act. In the
event that the Company relies upon an exemption from the registration
requirements of the Securities Act of 1933, the Company agrees that it will
provide the Depositary with a written statement as to the exemption upon which
the Company so relies and, if the Depositary reasonably requests, the Company
will furnish to the Depositary a written opinion of counsel stating that the
offering and sale of such Shares is exempt from registration under the
provisions of the Securities Act of 1933.
The Company will advise each person who, to the best knowledge of the
Company, controls, or is under common control with, the Company that such person
is subject to the same restrictions on the deposit of Shares as the Company and
persons controlled by the Company.
SECTION 5.09. Indemnification. The Company agrees to indemnify the
Depositary and each Custodian, and each of their directors, officers, employees,
agents and affiliates against, and hold each of them harmless from, any
liability or expense which may arise out of acts performed or omitted, in
accordance with the provisions of this Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or any Custodian, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by the
Company or any of its agents.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release (as defined in
Section 5.04) but only to the extent that any such liability or expense arises
in connection with (a) any United States Federal, state or local income tax laws
or (b) the failure of the Depositary to deliver Deposited Securities when
required under the terms of Section 2.05 hereof.
33
The Depositary agrees to indemnify the Company and each of its directors,
employees, agents and affiliates and hold it harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian under the terms of the Deposit Agreement due to the negligence or
bad faith of either the Depositary or the Custodian.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of a commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.09) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
SECTION 5.10. Charges of Depositary. The Company, the Holders and the
Beneficial Owners agree to pay to the Depositary the Depositary's fees
identified as payable by them respectively on the Fee Schedule attached hereto
as Exhibit B. Holders and Beneficial Owners and persons depositing Shares shall
be required to pay (to the extent applicable and permitted by applicable law and
the rules of any stock exchange on which the American Depositary Shares are
admitted for trading) the following charges (in each case as identified in the
Fee Schedule attached hereto as Exhibit B, as amended from time to time): (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 generally 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 thereof upon
the making of deposits and withdrawals of Deposited Securities, (iii) such
cable, telex and facsimile transmission and delivery expenses as are expressly
provided elsewhere in this Deposit Agreement to be at the expense of the person
depositing Shares or Holders and Beneficial Owners of American Depositary
Shares, (iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.06 hereof, (v) such
reasonable fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations, and
34
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.05 hereof, such right shall extend for
those fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.11. Retention of Depositary Documents. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the time permitted by the governing
statutes unless such papers are required to be retained in connection with the
performance of written agreements entered into between the Company and the
Depositary from time to time or unless the Company requests that such papers be
retained for a longer period or turned over to the Company or to a successor
depositary.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any such amendment, except as provided in the next
sentence, requires no consent from the Holders of Receipts. Any amendment which
shall impose or increase any fees or charges (other than the fees of the
Depositary for the execution and delivery of Receipts and taxes and other
governmental charges), or which shall otherwise prejudice any substantial
existing right of
35
Holders of Receipts, shall not, however, become effective as to outstanding
Receipts until the expiration of three months after notice of such amendment
shall have been given to the Holders of outstanding Receipts except in order to
comply with mandatory provisions of applicable law. Every Holder of a Receipt
and any Beneficial Owner of the American Depositary Shares represented thereby
at the time any amendment so becomes effective shall be deemed, by continuing to
hold such Receipt or such American Depositary Shares, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Holder of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
by the American Depositary Shares evidenced thereby. Any amendment which shall
increase any fees of the Depositary for the execution and delivery of Receipts
shall not become effective as to Holders of outstanding Receipts until the
expiration of thirty days after notice of such amendment shall have been given
to such Holders of outstanding Receipts.
SECTION 6.02. Termination. The Depositary shall at any time at the
direction of the Company terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.05. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary. At any time after the expiration of
six months from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold the net proceeds of any
such sale, together with any other cash then held by it hereunder, without
liability for interest, for the pro rata benefit of the Holders of Receipts
36
which have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.09 and 5.10 hereof. The obligations of the
Depositary under Section 5.09 hereof shall survive the termination of this
Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and each Custodian and
shall be open to inspection by any Holder of a Receipt at the Corporate Agency
Office of the Depositary and the principal Paris office of any Custodian during
business hours.
SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no wise be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders as Parties; Binding Effect. The Holders and
Beneficial Owners of Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance thereof.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally. delivered or sent by
mail, air courier or cable, telex or facsimile transmission, confirmed by
letter, addressed to GROUPE DANONE, ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
Attention: Directeur General des Affaires Financieres, or to any other address
which the Company may specify in writing.
37
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ floor, New York, New York 10013, U.S.A.,
Attention: ADR Department, or to any other address which the Depositary may
specify in writing.
Any and all notices to be given to any Holder of a Receipt shall be deemed
to have been duly given to the Holder if personally delivered or sent by mail or
cable, telex or facsimile transmission, confirmed by letter, addressed to such
Holder at the address of such Holder as it appears on the transfer books for
Receipts of the Depositary, or, if such Holder shall have filed with the
Depositary a written request that notices intended for such Holder be mailed to
some other address, at the address specified in such request.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder of a Receipt, notwithstanding
that such cable, telex or facsimile transmission shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts shall
be interpreted and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by the laws of the State of New York without regard to
the principles of conflicts of laws thereof.
SECTION 7.07 Compliance with U.S, Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction 1.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
38
IN WITNESS WHEREOF, GROUPE DANONE and CITIBANK, N.A. have duly executed
this Deposit Agreement as of the day and year first above set forth and all
Holders and Beneficial Owners of Receipts shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
GROUPE DANONE
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Senior Executive Vice President,
Chief Financial Officer
CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
39
EXHIBIT A
Number CUSIP Number
AMERICAN DEPOSITARY
SHARES
(EACH REPRESENTING
ONE-FIFTH OF A SHARE)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES OF
GROUPE DANONE
(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"), such Depositary's Corporate Agency Office being located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereby certifies that
_________________________________ is the owner of__________________________
American Depositary Shares, representing deposited ordinary shares in bearer
form i.e., registered as "titres au porteur" with the Societe
Interprofessionnelle pour la Compensation des Vaieurs Mobilieres, an
organization that, inter alia maintains shares and other securities accounts of
French listed companies), (euro).50 nominal value per share or evidence of
rights to receive such ordinary shares ("Shares"), of GROUPE DANONE, a
corporation organized under the laws of The Republic of France (the "Company").
At the date of the Deposit Agreement (as defined herein), each American
Depositary Share represents one-fifth of a Share (until there shall occur a
distribution upon Deposited Securities covered by Section 4.04 or a change in
Deposited Securities covered by Section 4.09 with respect to which additional
A-1
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall represent the Shares or Deposited Securities specified in such
Sections) deposited under the Deposit Agreement (as hereafter defined) with the
Custodian, which at the date of execution of the Deposit Agreement is Credit
Lyonnais (Paris). The Depositary's Corporate Agency Office is at a different
address than its Principal Executive Offices. Its Principal Executive Office is
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth in the Deposit Agreement, dated as of December 3, 1990,
as amended by Amendment No. 1 to Deposit Agreement, dated as of October 7, 1994
and Amendment No. 2 to Deposit Agreement, dated as of June 1, 1997, and as
further amended by the Amended and Restated Deposit Agreement, dated as of
November 19, 1997 (as so amended and as further amended from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all Holders
and Beneficial Owners from time to time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and becomes bound
by all the terms and provisions thereof. The Deposit Agreement sets forth the
rights of Holders and Beneficial Owners of the Receipts 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, subject in the case of cash to
paragraph (11) hereof, (such Shares, securities, property and cash are herein
called "Deposited Securities"). Copies of the Deposit Agreement are on file at
the Corporate Agency Office of the Depositary and the Custodian. The statements
made on the face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby made,
and terms not otherwise defined herein have the meaning ascribed to them in the
Deposit Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Corporate Agency Office of the Depositary of this Receipt, and
upon payment of the fee, if any, of the Depositary provided in paragraph (6) of
this Receipt, and subject to the further terms and conditions of the Deposit
Agreement, the Holder hereof is entitled to delivery, to him or upon his order,
of the Deposited Securities at the time represented by the American Depositary
Shares for which this Receipt is issued. Delivery of such Deposited Securities
may be made by the delivery of appropriate evidence of title to the order of the
Holder hereof, as ordered by him or by the delivery of appropriate
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evidence of title endorsed or accompanied by proper instruments of transfer, or
by book entry delivery. Such delivery will be made without unreasonable delay
and, at the option of the Holder hereof, either at the office of any Custodian
or at the Corporate Agency Office of the Depositary, provided that the
forwarding of Shares or other Deposited Securities for such delivery at the
Corporate Agency Office of the Depositary in the Borough of Manhattan, The City
of New York shall be at the risk and expense of the Holder hereof.
(3) Transfers, Split-ups and Combinations. Subject to the limitations
stated herein, this Receipt is transferable on the books of the Depositary by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt properly endorsed or accompanied by proper instruments of transfer
and duly stamped as may be required by law; provided, however, that the
Depositary may close the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement. This Receipt may be split into other Receipts or may be
combined with other Receipts into one Receipt, representing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered. As
a condition precedent to the execution and delivery, registration, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Company or the Custodian may
require payment of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto and payment of any applicable fees as provided in paragraph (6) of this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any laws or governmental regulations relating to American depositary receipts or
to the withdrawal of Deposited Securities.
The Depositary may refuse to execute and to deliver Receipts, register the
transfer of any Receipt, or make any distribution of any dividend or other
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until it has received such proof of citizenship, residence,
exchange control approval, payment of applicable French or other taxes or
governmental charges, legal or beneficial ownership or other information as it
may deem necessary or proper in accordance with applicable laws and regulations.
The delivery of Receipts against deposits of particular Shares may be suspended,
or the delivery of Receipts against the deposit of particular Shares may be
withheld or the registration of transfer of Receipts in particular instances
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may be refused, or the registration of transfer generally may be suspended,
during any period when the transfer books of the Depositary or the appointed
agent for the Company for the transfer and registration of Shares are closed, or
if any such action is deemed necessary or advisable by the Depositary or the
Company at any time or from time to time in accordance with the Deposit
Agreement. Notwithstanding any provision of the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended, except as required in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company (or the appointed agent for the Company for the transfer and
registration of Shares) or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the provisions of the United States Securities Act of
1933, as from time to time amended, (the "Securities Act") unless a registration
statement is in effect as to such Shares.
The Depositary will comply with written instructions from the Company
requesting that the Depositary not accept for deposit hereunder any Shares or
rights identified in such instructions in order to facilitate the Company's
compliance with U.S. Federal and State securities laws.
(4) Liability of Holder and Beneficial Owners for Taxes. If any French or
other tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented by the American Depositary
Shares evidenced hereby, such tax or other governmental charge shall be payable
by the Holder hereof to the Depositary. The Depositary may refuse, and the
Company shall be under no obligation, to effect any registration of transfer of
all or part of this Receipt or any withdrawal of Deposited Securities
represented hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder and Beneficial
Owner hereof any part or all of the Deposited Securities represented by the
American Depositary Shares evidenced hereby, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder
A-4
hereof and the Beneficial Owner remaining liable for any deficiency.
(5) Representations and Warranties on Deposit of Shares by Depositor. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares are validly issued, fully paid and
non-assessable and any pre-emptive rights have been validly waived, and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent and warrant that the Shares being deposited and the
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts in respect thereof. If 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 reasonably necessary to correct the consequences thereof.
(6) Charges of Depositary. The Depositary shall charge fees for receiving
deposits and issuing Receipts, for delivering deposited Shares against surrender
of Receipts, for splits and combinations of Receipts, for sales or exercise of
rights or for other services performed upon the terms set forth in the Deposit
Agreement. The Depositary and the Company reserve the right to modify, reduce or
increase any fees or charges for services performed. The Depositary shall charge
any party to whom Receipts are issued or who surrenders Receipts a fee of up to
U.S. $5.00 or less per 100 American Depositary Shares (or portion thereof) for
the issuance or surrender, respectively, of a Receipt. The Depositary shall also
charge a fee of up to $2.00 per 100 American Depositary Shares in the case of a
distribution of cash proceeds, and a fee of up to $5.00 per 100 American
Depositary Shares in the case of a distribution of American Depositary Shares
pursuant to the exercise of rights. In both cases such charge shall be for the
account of the Holder seeking to receive such distribution. The Depositary will
provide, without charge, a copy of its latest fee schedule to anyone upon
request. In addition, Holders, Beneficial Owners, and persons depositing Shares
will be requested to pay taxes and other governmental charges, registration
fees, cable, telex and facsimile transmission and delivery expenses, and other
reasonable expenses incurred by the Depositary in connection with its
obligations and duties under the Deposit Agreement. Any other charges and
expenses of the Depositary under the Deposit Agreement will be paid by the
Company upon agreement between the Depositary and the Company concerning the
nature
A-5
and amount of such charges and expenses. All fees and charges may at any time
and from time to time be changed by agreement between the Company and the
Depositary. The provisions in respect of these charges may be changed in the
manner indicated in paragraph (20) of this Receipt.
(7) Disclosure of Interests. For purposes of this Paragraph (7), the term
"Shares" shall mean any shares issued by the Company, including bearer and
registered shares. The Holder hereof agrees to comply with the Company's
Articles of Association, as they may be amended from time to time ("Statuts"),
and the laws of the Republic of France with respect to the disclosure
requirements regarding ownership of Shares, all as if this Receipt were to the
extent practicable the Shares represented hereby. As of the date of the Deposit
Agreement, such disclosure requirements are as follows:
Pursuant to the Company's Statuts, any person or entity that becomes or
ceases to be the owner of Shares or shares assimilated to Shares (which include
American Depositary Shares evidenced by this Receipt), as discussed below in
this Paragraph (7) equal to 1% of the voting rights of the Company or a multiple
thereof must notify the Company by registered letter (return receipt requested)
of the total number of Shares and voting rights held by it, no later than 15
days after acquiring or selling such amount. In order to facilitate compliance
with these notification requirements, a Holder or Beneficial Owner may deliver
such notification to the Depositary in respect to Shares represented by American
Depositary Shares held by such Holder or Beneficial Owner and the Depositary
shall, as soon as practicable after receipt thereof, forward such notification
to the Company.
In the event that a holder fails to comply with the above requirements of
the Company's Statuts, and upon request of a holder or holders of 5% or more of
the voting rights of the Company, such holder shall not be permitted, in
accordance with, and subject to the limitations provided under French law, to
exercise voting rights or grant proxies therefor with respect to any Shares
exceeding the above-mentioned thresholds at any shareholders' meeting for a
period of two years from the date notification has been received.
Pursuant to the Law on the Security and Transparency of Financial Markets
of August 2, 1989, as amended, any person or entity acting alone or in concert
with others that acquires, directly or indirectly, more than one-twentieth,
one-tenth, one-fifth, one-third, one-half or
A-6
two-thirds of the total number of Shares or voting rights (or Shares or voting
rights assimilated thereto (which include American Depositary Shares evidenced
by this Receipt), as discussed below in this Paragraph (7)) must so notify the
Company within 15 calendar days and the Conseil des Marches Financiers in each
case after the date such threshold has been crossed of the number of Shares it
holds and the voting rights attached thereto. A holder of Shares is also
required to notify the Company and the Conseil des Marches Financiers if the
percentage of Shares or voting rights owned by such Holder falls below the
levels described in the previous sentence. In order to permit holders of Shares
to give the notice required by law, the Company is obligated to file with the
Bulletin des Annonces Legales Obligatoires ("BALO") within 15 days of the
Company's annual general meeting, information with respect to the total number
of votes available as of the date of such meeting. In addition, if the number of
available votes changes by more than 5%, the Company is required to notify the
BALO, within 15 days of such change, of the number of votes then available.
In the event that a Holder or Beneficial Owner fails to comply with the
requirements of the preceding paragraph, such Holder or Beneficial Owner will
not be permitted, 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 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 years, and such Holder or Beneficial Owner may be subject to
criminal penalties.
The provisions of this Paragraph (7) relating to Shares or voting rights
held by a person or an entity also apply to (1) 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-7
(8) Title to Receipts. Subject to the limitations set forth herein, it is
a condition of this Receipt, and every successive Holder hereof by accepting or
holding the same consents and agrees, that title to this Receipt (and to the
American Depositary Shares evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may deem and treat the Holder hereof as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
(9) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this Receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
A-8
(10) Available Information. The Company is subject to the reporting
requirements of the Securities Exchange Act of 1934 applicable to foreign
private issuers and in accordance therewith will file reports and other
information with the Commission. Such information may be inspected by Holders or
Beneficial Owners and copied at public reference facilities maintained by the
Commission located at ▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, and at the
Corporate Agency Office of the Depositary.
Dated: ________________________
Countersigned CITIBANK, N.A., as
Depositary
By:________________________________ By ________________________________
Authorized Officer Vice President
The address of the Corporate Agency Office of the Depositary is ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. The Depositary's
Corporate Agency Office is at a different address than its Principal Executive
Office. Its Principal Executive Office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-9
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(11) Dividends and Distributions; Rights. Whenever the Depositary is
notified by the Custodian of the receipt of any cash dividend, the Depositary
will, or will cause its agent to, if at the time of receipt thereof any amounts
received in a foreign currency can in the judgment of the Depositary (in light
of applicable law) be converted on a reasonable basis into United States dollars
distributable to the Holders of Receipts entitled thereto and, subject to the
provisions of the Deposit Agreement, convert such dividend or distribution into
United States dollars and will distribute the amount thus received (less any
reasonable and customary expenses incurred by the Depositary in converting such
foreign currency) to the Holders of Receipts entitled thereto, in proportion to
the number of American Depositary Shares representing such Deposited Securities
held by them respectively after deduction or upon payment of the fees and
expenses of the Depositary as set forth in Paragraph (6) hereof; provided,
however, that the amount distributed will be reduced by any amounts required to
be withheld by the Company or the Depositary in respect of taxes or other
governmental charges. If in the judgment of the Depositary amounts received in
foreign currency may not (in light of applicable law) be converted on a
reasonable basis into United States dollars distributable to the Holders of
Receipts entitled thereto, the Depositary shall (a) as to that portion of the
foreign currency that is convertible into dollars, make such conversion and, if
permitted by applicable law, transfer such dollars to the United States for
distribution to Holders in accordance with the terms of the Deposit Agreement
and (b) as to the nonconvertible balance, if any, (i) if requested in writing by
a Holder, distribute the foreign currency (or an appropriate document evidencing
the right to receive such foreign currency) received by(,) the Depositary or
Custodian to such Holder and (ii) hold any amounts of nonconvertible foreign
currency not distributed (iii) uninvested and without liability for interest
thereon for the respective accounts of, the Holders entitled to receive the
same. If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may with the Company's
approval, and shall if the Company shall so request, distribute to the Holders
of outstanding Receipts entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by
A-10
them, respectively, additional Receipts for an aggregate number of American
Depositary Shares representing the number of Shares received as such dividend or
free distribution. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary will sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, converted into United States dollars if not in such dollars (if such
conversion may (in light of applicable law) in the judgment of the Depositary be
achieved on a reasonable basis), to the Holders of Receipts entitled thereto. If
additional Receipts are not so distributed (except as pursuant to the preceding
sentence), each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
In the event that the Company shall offer or cause to be offered to the Holders
of any Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary, after consultation with the Company,
will either (a) make such rights available to Holders of Receipts by means of
warrants or otherwise, if lawful and feasible after deduction or upon payment of
the fees and expenses of the Depositary as set forth in Paragraph (6) hereof, or
(b) if making such rights available is not lawful or not feasible, or if the
rights represented by such warrants or other instruments are not exercised and
appear to be about to lapse, use its best efforts (subject to the limitations
set forth in the Deposit Agreement) to sell such rights or warrants or other
instruments at such place or places and upon such terms (including public or
private sale) as the Depositary may reasonably deem proper, and after deduction
or upon payment of the fees and expenses of the Depositary, allocate the net
proceeds of such sales, as in the case of a cash distribution, for account of
the Holders of Receipts otherwise entitled thereto.
(12) Record Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued, with respect to the Deposited Securities, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, or whenever the Depositary causes a change in the
number of Shares represented by each American Depositary Share, or whenever the
Depositary finds it necessary or convenient in respect of any matter, the
Depositary will fix a record date (which shall be as near as practicable to the
record date for Shares set by the Company having regard for the rules of the
exchange on which the American Depositary Shares are listed) (a) for the
determination of the
A-11
Holders of Receipts who will be entitled to receive such dividend, distribution
or rights, or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, subject to the provisions of
the Deposit Agreement or (b), for determining the date on or after which each
American Depositary Share will represent the changed number of Shares, subject
in each case to the terms of the Deposit Agreement.
(13) Voting of Shares. Upon receipt of notice of any meeting of holders of
Shares or other Deposited Securities, the Depositary shall, as soon as
practicable thereafter, mail to the Holders of Receipts (A) a notice in English,
the form of which notice shall be in the sole discretion of the Depositary,
which shall contain (i) such information as is contained in such notice of
meeting, and (ii) a statement that the Holders as of the close of business in
New York on a record date established by the Depositary pursuant to the terms of
the Deposit Agreement will be entitled, subject to any applicable provisions of
French law and the Statuts of the Company and the terms of the Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by such Holder's American Depositary Shares, (B) a voting
instruction card to be prepared by the Depositary and the Company (a "Voting
Instruction Card") setting forth, inter alia, the date established by the
Depositary for the receipt of such Voting Instruction Card (the "Cut-off Date")
and (C) copies of or summaries in English of any materials provided by the
Company for the purpose of enabling the Holders to give instructions for the
exercise of such voting rights. Voting instructions may be given only in respect
of a number of American Depositary Shares representing an integral number of
Shares. As a precondition for exercising any voting rights, any persons holding
American Depositary Shares who are not the Holders of the Receipt(s) registered
in name on the books of the Depositary evidencing such American Depositary
Shares (e.g., persons holding their American Depositary Shares through the
Depository Trust Company) must arrange for the delivery in a blocked account
("Blocking"), established for such purposes by the Depositary, of the relevant
number of American Depositary Shares for the period to commence on the date to
be fixed by the Depositary (on a date which shall be as near as practicable to
the corresponding date established by the Company in France in respect of the
Shares) after consultation with the Company until the completion of such meeting
(the "Blocked Period"). The Depositary will
A-12
use its best efforts to implement and maintain procedures to allow for the
Blocking of American Depositary Shares as contemplated by the preceding
sentence. Holders of Receipts registered in name on the books of the Depositary
(other than the Depository Trust Company) will not, as a precondition for
exercising voting rights, be required to deliver their American Depositary
Shares to the Depositary for Blocking but will be required to irrevocably
instruct the Depositary not to transfer the Receipts (and not to cancel such
Receipts upon receipt of cancellation and withdrawal instructions evidencing the
American Depositary Shares in respect of which voting instructions have been
given ("Stop Transfer Instructions")). The Depositary shall, upon receipt of
such Stop Transfer Instructions, refuse to transfer (and cancel Receipts upon
receipt of cancellation and withdrawal instructions) the Receipts indicated in
such Stop Transfer Instructions, during the Blocked Period.
Upon receipt by the Depositary from a Holder of American Depositary Shares
of (i) a properly completed Voting Instruction Card on or before the Cut-off
Date and (ii) either the requisite number of American Depositary Shares
delivered for Blocking or duly completed Stop Transfer Instructions, the
Depositary will, in respect of such American Depositary Shares, forward the
voting instructions contained in the Voting Instruction Card to the Custodian
and will instruct the Custodian to use reasonable efforts, insofar as practical
and permitted under any applicable provisions of French law and the Statuts of
the Company, to vote or cause to be voted the Shares represented by such
American Depositary Shares in accordance with the instructions set forth in such
Voting Instruction Card. The Depositary will only vote, or cause to be voted, or
attempt to exercise the right to vote that attaches to, Shares represented by
American Depositary Shares in respect of which a properly completed Voting
Instruction Card has been received. In the case of a Voting Instruction Card
received in respect of any Holder of American Depositary Shares who is not the
Holder of the Receipt evidencing such American Depositary Shares on the books of
the Depositary, the Depositary will not vote or cause to be voted the number of
Shares represented by such American Depositary Shares unless the Depositary has
received verification that such number of American Depositary Shares has been
deposited in a blocked account for the Blocked Period by such person. The
Depositary will not vote, or cause to be voted, or attempt to exercise the right
to vote that attaches to, Shares represented by American Depositary Shares in
respect of which the Voting Instruction Card is improperly completed or in
respect of which (and
A-13
to the extent) the voting instructions included in the Voting Instruction Card
are illegible or unclear.
As each American Depositary Share represents one-fifth of a Share as of
the date of the Deposit Agreement, voting rights may be exercised only in
respect of five American Depositary Shares, or multiples thereof.
Holders of American Depositary Shares who wish to attend any meeting of
the Company's shareholders in person will need to make separate arrangements
therefor with the Depositary.
According to French law and the Company's Statuts, only holders of Shares
who hold their Shares in registered form for at least two years will be entitled
to double voting rights. Holders of Receipts (which evidence American Depositary
Shares representing Shares in bearer form) will not be entitled to double voting
rights.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Depositary and the Company may modify or amend the above voting procedures or
adopt additional voting procedures from time to time as they determine may be
necessary or appropriate to comply with French or United States law or the
Statuts of the Company.
(14) Changes Affecting Deposited Securities. Upon any change in nominal
value, split-up, consolidation, cancellation 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 in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent the new Deposited Securities so
received in exchange or conversion, unless additional or new Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, with the Company's approval, and shall, if the Company shall so request,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts specifically describing such new Deposited Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Paragraph (14) in respect of the Deposited Securities, the
Company shall notify the
A-14
Depositary in writing of such occurrence and, as soon as practicable after
receipt of such notice from the Company, the Depositary shall give notice
thereof, at the Depositary's expense, in writing to all Holders of Receipts.
(15) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders of Receipts at its Corporate Agency Office
and at the office of each Custodian any reports and communications received from
the Company which are both (a) received by the Depositary or a Custodian or the
nominee of either as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary will also send to Holders of Receipts copies of such reports when
furnished by the Company as provided in the Deposit Agreement. The Depositary
will keep books for the registration of Receipts and their transfer which will
be open at all reasonable times for inspection by the Company and Holders of
Receipts, provided that such inspection shall not be for the purpose of
communicating with Holders of Receipts in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or the Receipts.
(16) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor) is subject to any
taxes or 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 as the
Depositary deems necessary and practicable to pay such taxes or governmental
charges, and the Depositary shall distribute the net proceeds of any such sale
and the balance of any such property after deduction of such taxes or
governmental charges to the Holders of Receipts entitled thereto in proportion
to the number of American Depositary Shares held by them respectively.
The Depositary agrees to use reasonable efforts to establish procedures
acceptable to the French tax authorities to enable eligible U.S. resident
Beneficial Owners to recover any excess French withholding taxes initially
withheld or deducted from dividends and other distributions of the Company to
such U.S. resident Beneficial Owners and to receive any payment in respect of
the "avoir fiscal" for which such Beneficial Owners may be eligible from the
French Treasury. Upon request of any U. S. resident Beneficial Owner who
certifies to the Depositary that it has not already applied for or received a
tax refund from the French tax authorities or that such U.S. resident Beneficial
Owner's
A-15
application for such a refund has been rejected, the Depositary will provide a
copy of the French form being prescribed for use by the French tax authorities
at the time of such request for the filing of an application for such, refunds
("Application for Refund"), together with instructions to such Beneficial Owner
and will arrange for the filing with the French tax authorities of such
Application for Refund if properly completed by such U.S. resident Beneficial
Owner and timely returned to the Depositary so as to enable the timely filing of
such Application for Refund with the French tax authorities.
In addition, the Depositary will use reasonable efforts to establish
procedures acceptable to the French tax authorities for eligible U.S. resident
Holders to be subject to a reduced withholding rate of 15%, if available, at the
time dividends are paid. In connection therewith, the Depositary shall take
reasonable steps to provide eligible U.S. resident Holders with such forms as
may be prescribed by the French Treasury and to take such other reasonable steps
as may be required to file such forms with the appropriate French tax
authorities.
The Company shall provide the Depositary with an official receipt from
French tax authorities setting forth the amounts of tax or other governmental
charge paid to the French tax authorities. The Depositary shall, for a period of
five years after the date of any such payment of tax or other government charge,
maintain such receipt (or other document received from the Company) in its files
and shall, upon request, provide a copy of such receipt to the Holders and
Beneficial Owners of the American Depositary Shares representing such Deposited
Securities evidenced by Receipts held at the time of such distribution by such
Holder or Beneficial Owner.
(17) Liability of the Company and Depositary. Neither the Depositary nor
the Company (nor any of their directors, employees, agents, or controlling
persons (as defined under the Securities Act) will incur any liability to any
Holder or Beneficial Owner of this Receipt, if by reason of any provision of any
present or future law of any country or jurisdiction or of any other
governmental authority or stock exchange, or by reason of any provision, present
or fixture, of the Statuts of the Company, or by reason of any act of God or war
or other circumstances beyond its control, the Depositary or the Company shall
be prevented or forbidden from, or delayed, in doing or performing any act or
thing which by the terms of the Deposit Agreement it is provided shall be done
or performed nor shall the Depositary or the Company incur any liability to any
Holder or Beneficial
A-16
Owner of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in performance of any act or thing which by the terms of this Deposit
Agreement it is provided shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement. Neither the Company nor the Depositary assumes any obligation or
shall be subject to any liability under the Deposit Agreement to Holders or
Beneficial Owners of Receipts, except that each of them agrees to use its best
judgment and to act in good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement. Neither the Depositary nor the
Company will be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense and
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required, and no Custodian will be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary. Neither the Depositary nor the
Company will be liable for any action or inaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder or Beneficial Owner of a Receipt, or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and it agents may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
The Company agrees to indemnify the Depositary and each Custodian against,
and hold each of them harmless from, any liability or expense which may arise
out of acts performed or omitted, in accordance with the provisions of the
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (1) by either the Depositary or any Custodian,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
(18) Pre-Release of Shares and Receipts. Subject to the further terms and
provisions of this Paragraph (18), the Depositary and its agents, on their own
behalf, may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may issue Receipts for evidence of
rights to receive Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares.
A-17
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the Holder thereof. The Depositary
shall not lend Shares or Receipts; provided, however, that the Depositary may
(i) issue Receipts prior to the receipt of Shares pursuant to Section 2.03 of
the Deposit Agreement ("Pre-Release") and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such transaction will be (a) accompanied by (x) a written
representation from the person to whom Receipts or Shares are to be delivered
that such person, or its customer, owns the Shares or Receipts to be remitted,
as the case may be, or (y) such evidence of ownership of Shares or Receipts, as
the case may be, as the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral of comparable safety and liquidity, (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 reasonably
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such transactions at any one time to thirty percent (30%) of
the Receipts outstanding (without giving effect to Receipts outstanding under
(i) above), or Shares held hereunder, respectively; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary will also set limits with respect
to the number of Receipts and Shares involved in transactions to be effected
hereunder 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 connection with the foregoing. Such collateral, but not the earnings
thereon, shall be held for the benefit of the Holders only.
(19) Resignation and Removal of Depositary: Substitution of Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the
A-18
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time appoint a
substitute or an additional custodian after consultation with the Company and
the term "Custodian" shall also refer to such substitute or additional
custodian.
(20) Amendment of Deposit Agreement and Receipts. The form of the Receipts
and the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any such amendment, except as
provided in this Paragraph (20), requires no consent from Holders or Beneficial
Owners of Receipts. Any amendment which shall impose or increase any fees or
charges (other than the fees of the Depositary for the execution and delivery of
Receipts and taxes or other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders or Beneficial Owners of
Receipts, shall not, however, become effective as to outstanding Receipts until
the expiration of three months after notice of such amendment shall have been
given to the Holders of outstanding Receipts except in order to comply with
mandatory provisions of applicable law. Every Holder of a Receipt and any
Beneficial Owner of the American Depositary Shares represented thereby at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt or such American Depositary Shares, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder hereof to surrender
this Receipt and receive therefor the Deposited Securities represented by the
American Depositary Shares evidenced hereby. Any amendment which shall increase
any fees of the Depositary for the execution and delivery of Receipts shall not
become effective as to Holders and Beneficial Owners of outstanding Receipts
until the expiration of thirty days after notice of such amendment shall have
been given to the Holders of outstanding Receipts.
(21) Termination of Deposit Agreement. The Depositary will at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement if at any time 90 days after the
Depositary shall have resigned, a successor depositary shall not have been
appointed and accepted its appointment. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
registration of transfers of
A-19
Receipts, will suspend the distribution of dividends to the Holders thereof, and
will not give any further notices or perform any further acts under the Deposit
Agreement, except the collection of dividends and other distributions pertaining
to Deposited Securities, and the delivery of Deposited Securities, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary. At any time after the expiration of six months
from the date of termination, the Depositary may sell the Deposited Securities
then held under the Deposit Agreement and may thereafter hold the net proceeds
of any such sale, together with any other cash then held by it under the Deposit
Agreement, without liability for interest, for the pro rata benefit of the
Holders of Receipts not theretofore surrendered. Thereafter the Depositary will
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash.
(22) Retention of Depositary Documents. The Depositary is authorized to
destroy those documents, records, bills and other data compiled during the term
of the Deposit Agreement at the time permitted by the governing statutes unless
such papers are required to be retained in connection with the performance of
written agreements entered into between the Company and the Depositary from time
to time or unless the Company requests that such papers be retained for a longer
period or turned over to the Company or to a successor depositary.
(23) Power of Attorney. Each Holder and Beneficial Owner, upon acceptance
of the American Depositary Receipts issued in accordance with the terms of the
Deposit Agreement, hereby appoints the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all steps or
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the terms of the Deposit Agreement and this Receipt.
(24) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement or this Receipt to the contrary, the withdrawal or delivery of
the Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
A-20
EXHIBIT B
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have
the meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Holders and Beneficial Owners agree to pay the following fees of the
Depositary:
-------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------
(1) Issuance of American Up to $5.00 per 100 Party for whom deposits are
Depositary Shares upon American Depositary made or party receiving
deposit of Shares Shares (or fraction American Depositary Shares.
(excluding issuances thereof) issued.
contemplated by
paragraphs (3)(b) and (5)
below).
-------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 Party surrendering American
Securities, property and American Depositary Depositary Shares or making
cash against surrender of Shares (or fraction withdrawal.
American Depositary thereof) surrendered.
Shares.
-------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee. N/A
dividend or (b) American
Depositary Shares
pursuant to stock
dividends (or other free
distribution of stock).
-------------------------------------------------------------------------------------------------------
(4) Distribution of cash Up to $2.00 per 100 Party to whom distribution is
proceeds (i.e. upon sale American Depositary made.
of rights and other Shares held.
entitlements).
-------------------------------------------------------------------------------------------------------
(5) Distribution of American Up to $5.00 per 100 Party to whom distribution is
Depositary Shares American Depositary made.
pursuant to exercise of Shares issued.
rights.
-------------------------------------------------------------------------------------------------------
B-1
II. Charges
Holders and Beneficial Owners shall be responsible for the following
charges: NYlDELHENEF121]70814kwc06! DOCfl U191971U2S1.O113D0' B-2
(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 generally 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 thereof upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing Shares or Holders and Beneficial
Owners of American Depositary Shares;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such reasonable 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, American Depositary Shares and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
B-2