SANOFI-AVENTIS AND JPMORGAN CHASE BANK, N.A. As Depositary AND OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of ________, 2007
AND
JPMORGAN
CHASE BANK, N.A.
As
Depositary
AND
OWNERS
AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of ________, 2007
TABLE
OF CONTENTS
|
ARTICLE
1.
|
DEFINITIONS
|
1
|
||||
|
SECTION
1.1
|
American Depositary Shares. |
1
|
||||
|
SECTION
1.2
|
Beneficial Owner. |
1
|
||||
|
SECTION
1.3
|
Commission. |
1
|
||||
|
SECTION
1.4
|
Company. |
1
|
||||
|
SECTION
1.5
|
Custodian. |
2
|
||||
|
SECTION
1.6
|
Deliver; Deposit; Surrender; Transfer; Withdraw; Entry. |
2
|
||||
|
SECTION
1.7
|
Deposit Agreement. |
2
|
||||
|
SECTION
1.8
|
Depositary; Depositary's Office. |
2
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||||
|
SECTION
1.9
|
Deposited Securities. |
2
|
||||
|
SECTION
1.10
|
Dollars, Euro. |
3
|
||||
|
SECTION
1.11
|
Foreign Registrar. |
3
|
||||
|
SECTION
1.12
|
Owner. |
3
|
||||
|
SECTION
1.13
|
Receipts. |
3
|
||||
|
SECTION
1.14
|
Registrar. |
3
|
||||
|
SECTION
1.15
|
Securities Act of 1933. |
3
|
||||
|
SECTION
1.16
|
Shares. |
3
|
||||
|
ARTICLE
2.
|
FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND
SURRENDER OF RECEIPTS
|
4
|
||||
|
SECTION
2.1
|
Form and Transferability of Receipts. |
4
|
||||
|
SECTION
2.2
|
Deposit of Shares. |
4
|
||||
|
SECTION
2.3
|
Execution and Delivery of Receipts. |
5
|
||||
|
SECTION
2.4
|
Transfer of Receipts; Combination and Split-up of Receipts. |
6
|
||||
|
SECTION
2.5
|
Surrender of Receipts and Withdrawal of Shares. |
6
|
||||
|
SECTION
2.6
|
Limitations on Execution and Delivery, Transfer and Surrender of Receipts. |
7
|
||||
|
SECTION
2.7
|
Lost Receipts, etc. |
8
|
||||
|
SECTION
2.8
|
Cancellation and Destruction of Surrendered Receipts. |
8
|
||||
|
SECTION
2.9
|
Pre-Release of Receipts. |
9
|
||||
|
ARTICLE
3.
|
CERTAIN
OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
RECEIPTS
|
10
|
||||
|
SECTION
3.1
|
Filing Proofs, Certificates and Other Information. |
10
|
||||
|
SECTION
3.2
|
Liability of Owner or Beneficial Owner for Taxes. |
10
|
||||
|
SECTION
3.3
|
Warranties on Deposit of Shares. |
10
|
||||
|
ARTICLE
4.
|
THE
DEPOSITED SECURITIES
|
11
|
||||
|
SECTION
4.1
|
Cash Distributions. |
11
|
||||
|
SECTION
4.2
|
Distributions Other Than Cash, Shares or Rights. |
12
|
||||
|
SECTION
4.3
|
Distributions in Shares. |
12
|
||||
|
SECTION
4.4
|
Rights. |
13
|
||||
|
SECTION
4.5
|
Conversion of Foreign Currency. |
14
|
||||
|
SECTION
4.6
|
Fixing of Record Date. |
15
|
||||
|
SECTION
4.7
|
Voting of Deposited Securities. |
15
|
||||
|
SECTION
4.8
|
Changes Affecting Deposited Securities. |
17
|
||||
|
SECTION
4.9
|
Reports. |
17
|
|
SECTION
4.10
|
Lists of Owners. |
17
|
||||
|
SECTION
4.11
|
Withholding. |
17
|
||||
|
ARTICLE
5.
|
THE
DEPOSITARY, THE CUSTODIANS AND THE COMPANY
|
18
|
||||
|
SECTION
5.1
|
Maintenance of Office and Transfer Books by the Depositary. |
18
|
||||
|
SECTION
5.2
|
Prevention or Delay in Performance by the Depositary or the Company. |
18
|
||||
|
SECTION
5.3
|
Obligations of the Depositary, the Custodian and the Company. |
19
|
||||
|
SECTION
5.4
|
Resignation and Removal of the Depositary. |
20
|
||||
|
SECTION
5.5
|
The Custodians. |
21
|
||||
|
SECTION
5.6
|
Notices and Reports. |
21
|
||||
|
SECTION
5.7
|
Distribution of Additional Shares, Rights, etc. |
22
|
||||
|
SECTION
5.8
|
Indemnification. |
22
|
||||
|
SECTION
5.9
|
Charges of Depositary. |
24
|
||||
|
SECTION
5.10
|
Retention of Depositary Documents. |
25
|
||||
|
SECTION
5.11
|
Exclusivity. |
25
|
||||
|
ARTICLE
6.
|
AMENDMENT
AND TERMINATION
|
25
|
||||
|
SECTION
6.1
|
Amendment. |
25
|
||||
|
SECTION
6.2
|
Termination. |
25
|
||||
|
ARTICLE
7.
|
MISCELLANEOUS
|
26
|
||||
|
SECTION
7.1
|
Counterparts. |
26
|
||||
|
SECTION
7.2
|
No Third Party Beneficiaries. |
26
|
||||
|
SECTION
7.3
|
Severability. |
27
|
||||
|
SECTION
7.4
|
Owners and Beneficial Owners as Parties; Binding Effect. |
27
|
||||
|
SECTION
7.5
|
Notices. |
27
|
||||
|
SECTION
7.6
|
Submission to Jurisdiction; Appointment of Agent for Service of Process. |
28
|
||||
|
SECTION
7.7
|
Governing Law. |
28
|
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of
,
2007,
among Sanofi-Aventis, a société
anonyme,
organized under the laws of the Republic of France (herein called the
"Company"), JPMORGAN CHASE BANK, N.A., a New York banking corporation (herein
called the "Depositary"), and all Owners and Beneficial Owners from time to
time
of American Depositary Receipts issued hereunder.
W
I T N E
S S E T H :
WHEREAS,
the Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Company
from time to time with the Depositary or with the Custodian (as hereinafter
defined) 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 evidencing the American Depositary Shares; and
WHEREAS,
the American Depositary Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions,
as
hereinafter provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between the
parties hereto as follows:
ARTICLE
1.
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.1 American
Depositary Shares.
The
term
"American Depositary Shares" shall mean the securities representing the
interests in the Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent the number of
Shares specified in Exhibit A annexed hereto, until there shall occur a
distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified
in
such Sections.
SECTION
1.2 Beneficial
Owner.
The
term
"Beneficial Owner" shall mean each person owning from time to time any
beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION
1.3 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
1.4 Company.
The
term
"Company" shall mean Sanofi-Aventis, a société
anonyme organized
under the laws of the Republic of France, and its successors.
1
SECTION
1.5 Custodian.
The
term
"Custodian" shall mean the Paris, France office of BNP Paribas, as agent of
the
Depositary for the purposes of this Deposit Agreement, and any other firm or
corporation that may hereafter be appointed by the Depositary pursuant to the
terms of Section 5.5, as substitute or additional custodian or custodians
hereunder, as the context shall require and shall also mean all of them
collectively.
SECTION
1.6 Deliver;
Deposit; Surrender; Transfer; Withdraw; Entry.
The
term
“deliver”, “deposit”, “surrender”, “transfer” or “withdraw”; “entry” when used
(i) with respect to Shares: (a) in the case of book-entry Shares, shall refer
to
an entry or entries in an account or accounts maintained by institutions
authorized under French law to effect transfers of securities, or (b) in the
case of certificated Shares, to the physical delivery, deposit, withdrawal
or
transfer of certificates representing the Shares if and to the extent permitted
by applicable law and regulation and (ii) with respect to American Depositary
Shares evidenced by Receipts, (a) in the case of American Depositary Shares
available in book-entry form or otherwise through the direct registration system
established by The Depository Trust Company ("DTC") , shall refer to appropriate
adjustments in the records maintained by (1) the Depositary, (2) DTC or its
nominee, or (3) institutions that have accounts with DTC, as applicable, or
(b)
otherwise, shall refer to the physical delivery, deposit, surrender, transfer
or
withdrawal of such American Depositary Shares evidenced by
Receipts.
SECTION
1.7 Deposit
Agreement.
The
term
"Deposit Agreement" shall mean this Agreement, as the same may be amended from
time to time in accordance with the provisions hereof.
SECTION
1.8 Depositary;
Depositary's Office.
The
term
"Depositary" shall mean JPMorgan Chase Bank, N.A., a New York banking
corporation, and any successor as depositary hereunder. The term
"Depositary's Office", when used with respect to the Depositary, shall mean
the
office of the Depositary, which at the date of this Agreement is ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION
1.9 Deposited
Securities.
The
term
"Deposited Securities" as of any time shall mean Shares at such time deposited
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 as to cash to the
provisions of Section 4.5.
2
SECTION
1.10 Dollars,
Euro.
The
term
"Dollars" shall mean United States dollars. The term "Euro" shall mean the
official currency of the member states of the European Monetary
Union.
SECTION
1.11 Foreign
Registrar.
The
term
"Foreign Registrar" shall mean the entity that presently carries out the duties
of registrar for the Shares or any successor as registrar for the Shares and
any
other appointed agent of the Company for the transfer and registration of
Shares.
SECTION
1.12 Owner.
The
term
"Owner" shall mean the person in whose name a Receipt is registered on the
books
of the Depositary maintained for such purpose.
SECTION
1.13 Receipts.
The
term
"Receipts" shall mean the American Depositary Receipts issued hereunder
evidencing American Depositary Shares. Receipts may be either in physical
certificated form or in book-entry form which
ownership shall be evidenced by periodic statements issued by the Depositary
to
the Owners entitled thereto.
SECTION
1.14 Registrar.
The
term
"Registrar" shall mean any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
SECTION
1.15 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
1.16 Shares.
The
term
"Shares" shall mean ordinary shares in registered or bearer form of the Company,
heretofore validly issued, subscribed and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or hereafter validly issued, subscribed and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares.
3
| ARTICLE 2. | FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS |
SECTION
2.1 Form
and Transferability of Receipts.
Definitive
Receipts 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. No definitive 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 signatory 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. The Depositary shall maintain
books on 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 signatory of
the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar
or
did not hold such office on the date of issuance of such Receipts.
The
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or modifications not inconsistent with the provisions of
this Deposit Agreement or with any provision of the Company’s statuts
or
French
law as may be reasonably required by the Depositary or required to comply with
any applicable law or regulations thereunder or with the rules and regulations
of any securities exchange upon which American Depositary Shares may be listed
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 the American Depositary Shares evidenced thereby), when
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 under the laws of New York; provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
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
2.2 Deposit
of Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to receive Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments of transfer,
or endorsement, in form satisfactory to the Custodian, together with all such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute
and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit.
4
No
Share
shall be accepted for deposit unless accompanied by evidence satisfactory to
the
Depositary that any necessary approval has been granted by any governmental
body
in the Republic of France that is then performing the function of the regulation
of currency exchange. If required by the Depositary, Shares presented for
deposit at any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, 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 Custodian of any dividend,
or
right to subscribe for additional Shares or to receive other property that
any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of 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 person proposing to deposit Shares, and
for
the account of such person, the Depositary may receive certificates for Shares
to be deposited, together with the other instruments herein specified, for
the
purpose of forwarding such Share certificates to the Custodian for deposit
hereunder.
Upon
each
delivery to a Custodian of a certificate or certificates for Shares to be
deposited hereunder, together with the other documents specified above, such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Company or the Foreign
Registrar, if applicable, for transfer and recordation of 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.
SECTION
2.3 Execution
and Delivery of Receipts.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.2 hereunder (and
in addition, if the transfer books of the Company or the Foreign Registrar,
if
applicable, are open, the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company that any Deposited Securities
have been recorded upon the books of the Company or the Foreign Registrar,
if
applicable, in the name of the Depositary or its nominee or such Custodian
or
its nominee), together with the other documents required as specified above,
such Custodian shall notify the Depositary of such deposit and the 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, risk and expense of the person making the deposit, by cable, telex
or
facsimile transmission. Upon receiving such notice from such Custodian, or
upon the receipt of Shares by the Depositary, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall, as promptly as
practicable, execute and deliver, to or upon the order of the person or persons
entitled thereto, a Receipt or Receipts, registered in the name or names and
evidencing any authorized number of American Depositary Shares requested by
such
person or persons, but only upon payment to the Depositary of the fees and
expenses of the Depositary for the execution and delivery of such Receipt or
Receipts as provided in Section 5.9, and of all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
5
SECTION
2.4 Transfer
of Receipts; Combination and Split-up of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
register transfers of Receipts on its transfer books from time to time, upon
any
surrender of a Receipt, by the Owner in person or by a 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 and of 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,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent
as
the Depositary.
SECTION
2.5 Surrender
of Receipts and Withdrawal of Shares.
Upon
surrender at the Depositary's Office of a Receipt for the purpose of withdrawal
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and upon payment of the fee of the Depositary for
the
surrender of Receipts as provided in Section 5.9 and payment of all taxes and
governmental charges payable in connection with such surrender and withdrawal
of
the Deposited Securities, and subject to the terms and conditions of this
Deposit Agreement, the Owner of such Receipt shall be entitled to delivery,
to
him or upon his order, of the amount of Deposited Securities at the time
represented by the American Depositary Shares evidenced by such Receipt.
Delivery of such Deposited Securities may be made by the transfer of the
Deposited Securities to an account in the name of such Owner or such name as
shall be designated by such Owner maintained by the Company or its agent for
registration and transfer of Shares in the case of Shares in registered form,
or
maintained by an accredited financial institution in the case of Shares in
bearer form and the delivery of any other securities, property and cash to
which
such Owner is then entitled in respect of such Receipts to such Owner or as
ordered by him. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
6
A
Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank,
and
if the Depositary so requires, the Owner 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 Paris, France office of such Custodian,
subject to Sections 2.6, 3.1 and 3.2 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 above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to
such
person or persons at the Depositary's Office of any dividends or distributions
with respect to the Deposited Securities represented by the American Depositary
Shares evidenced 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 Owner so surrendering a Receipt, and for the
account of such Owner, the Depositary shall direct the Custodian to forward
any
cash or other property (other than rights) comprising, and forward a certificate
or certificates, if applicable, and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt to the Depositary for delivery at the Depositary's Office.
Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
Neither
the Depositary nor the Custodian shall deliver shares by physical delivery,
book
entry or otherwise (other than to the Company or its agent as contemplated
by
Section 4.8), or otherwise permit Shares to be withdrawn from the facility
created hereby, except upon the receipt and cancellation of
Receipts.
SECTION
2.6 Limitations
on Execution and Delivery, Transfer and Surrender of
Receipts.
As
a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, Custodian or Registrar may require payment from
the
depositor of Shares or 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 and
fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, 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 regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
7
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary 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
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
statuts,
or for
any other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may
not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, 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 of the
Company that the Depositary shall not accept for deposit thereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably be specified in such instructions in order to facilitate the
Company’s compliance with the securities laws of the United States.
SECTION
2.7 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 substitution
for
such mutilated Receipt upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION
2.8 Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so
cancelled.
8
SECTION
2.9 Pre-Release
of Receipts.
Unless
requested in writing by the Company to cease doing so, the Depositary may,
notwithstanding Section 2.3 hereof, execute and deliver Receipts prior to the
receipt of shares pursuant to Section 2.2 ("Pre-Release"). The Depositary
may, pursuant to Section 2.5, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation
is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu
of Shares in satisfaction of a Pre-Release. Unless otherwise agreed in
writing, each Pre-Release will be (a) preceded or accompanied by a written
representation and agreement from the person to whom Receipts are to be
delivered (the "Pre-Releasee") that the Pre-Releasee, or its customer, (i)
owns
the shares or Receipts to be remitted, as the case may be, (ii) assigns all
beneficial rights, title and interest in such Shares or Receipts, as the case
may be, to the Depositary in its capacity as such and for the benefit of the
Owners, and (iii) will not take any action with respect to such Shares or
Receipts, as the case may be, that is inconsistent with the transfer of
beneficial ownership (including, without the consent of the Depositary,
disposing of such Shares or Receipts, as the case may be), other than in
satisfaction of such Pre-Release, (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited
but represented by American Depositary Shares outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves
the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company, change
such
limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary
as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
9
ARTICLE
3. CERTAIN
OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
RECEIPTS
SECTION
3.1 Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Owner or Beneficial Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
or
such information relating to the registration on the books of the Company or
the
Foreign Registrar, if applicable, to execute such certificates and to make
such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or 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
or such representations and warranties made.
SECTION
3.2 Liability
of Owner or Beneficial Owner for Taxes.
If
any
tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any Receipt or any Deposited Securities represented
by any Receipt, such tax or other governmental charge shall be payable by the
Owner or Beneficial Owner of such Receipt to the Depositary. The
Depositary may refuse to effect any transfer of such Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced
by
such Receipt until such payment is made, and may withhold any dividends or
other
distributions, or may sell for the account of the Owner or 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 and the Owner or Beneficial Owner of such Receipt
shall remain liable for any deficiency.
SECTION
3.3 Warranties
on Deposit of Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor, if
applicable, are validly issued, subscribed, fully paid, nonassessable and free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that such Shares and the Receipts evidencing
American Depositary Shares representing such Shares are not restricted under
the
Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts.
10
ARTICLE
4. THE
DEPOSITED SECURITIES
SECTION
4.1 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, subject to the provisions of Section
4.5, convert such dividend or distribution into Dollars and shall as promptly
as
practicable distribute the amount thus received (net of the fees and expenses
of
the Depositary as provided in Section 5.9) to the Owners entitled thereto,
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided,
however,
that in
the event that the Company or the Depositary shall be required to withhold
and
does withhold from such cash dividend or such other cash distribution an amount
on account of taxes, the amount distributed to the Owner of the Receipts
evidencing 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 Owner a
fraction of one cent. Any such fractional amounts shall be rounded down to
the nearest whole cent and so distributed to Owners entitled thereto. The
Company or its agent will remit to the appropriate governmental agency in the
Republic of France all amounts withheld and owing to such agency. 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 agencies, and the Depositary or
the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Owners of Receipts.
The
Depositary agrees to use reasonable efforts to follow the procedures
established, or that may be established, by the French Treasury (i) to enable
eligible United States Owners and Beneficial Owners of Receipts to qualify
for a
reduced withholding tax rate of 15% provided by the France/US double taxation
treaty, if available at the time the dividends are paid, or (ii) to recover
any
excess French withholding taxes initially withheld or deducted with respect
to
dividends and other distributions to which such Owners and Beneficial Owners
may
be eligible from the French Treasury and (iii) to recover any other available
tax credits.
Upon
request of any United States Owner of Receipts the Depositary will provide
a
copy of the applicable form(s) for such benefits, together with instructions
to
such Owner and Beneficial Owners. In the event that the Depositary does
not receive the applicable forms duly filed by the eligible United States Owners
or Beneficial Owners before the date of payment of the dividends, the Depositary
shall arrange for the filing with the French tax authorities of all such forms
completed by United States Beneficial Owners of Receipts and returned in
sufficient time so that such forms may be filed by December 31 of the year
following the calendar year in which the dividend is paid.
11
SECTION
4.2 Distributions
Other Than Cash, Shares or Rights.
Subject
to the provisions of Sections 4.11 and 5.9, whenever the Depositary shall
receive any distribution other than a distribution described in
Section 4.1, 4.3 or 4.4, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto as
promptly as practicable, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may reasonably deem equitable and practicable for accomplishing
such
distribution; provided,
however,
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933
in
order to be distributed to Owners or Beneficial Owners) 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, but not limited to, the public or private sale of
the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided
in
Section 5.9) shall be distributed by the Depositary to the Owners entitled
thereto, all in the manner and subject to the conditions described in Section
4.1; provided, however, that no distribution to Owners pursuant to this Section,
shall be unreasonably delayed by any action of the Depositary.
SECTION
4.3 Distributions
in Shares.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may and shall, if the Company shall
request, distribute as promptly as practicable to the Owners of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively,
additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement
with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees
and expenses of the Depositary as provided in Section 5.9. The Depositary
may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under
the
provisions of such Act. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount 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 4.1; provided, however, that no distribution to Owners pursuant to
this
Section, shall be unreasonably delayed by any action of the Depositary. If
additional Receipts are not so distributed, each American Depositary Share
shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
12
SECTION
4.4 Rights.
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, shall
have discretion as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms of
such
rights offering or for any other reason, the Depositary may not either make
such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights
to
lapse. If at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights available to
all
or certain Owners but not to other Owners, the Depositary may distribute to
any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it reasonably deems
appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
requests the distribution of warrants or other instruments in order to exercise
the rights allocable to the American Depositary Shares of such Owner hereunder,
the Depositary will as promptly as practicable make such rights available to
such Owner upon written notice from the Company to the Depositary that (a)
the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined
in
its sole discretion are reasonably required under applicable law.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise
such
rights, upon payment by such Owner to the Depositary for the account of such
Owner 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 and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased
to
be delivered to the Depositary on behalf of such Owner. As agent for such
Owner, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant to
Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of
this section, such Receipts shall be legended in accordance with applicable
U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
13
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Owners, it may, and at the request
of the Company shall use its reasonable efforts to, sell the rights, warrants
or
other instruments in proportion to the number of American Depositary Shares
held
by the Owners to whom it has determined it may not lawfully or feasibly make
such rights available. The Depositary shall allocate the net proceeds of
such sales (net of the fees and expenses of the Depositary as provided in
Section 5.9 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants
or
other instruments, upon an averaged or other practical basis without regard
to
any distinctions among such Owners because of exchange restrictions or the
date
of delivery of any Receipt or otherwise. Such proceeds shall be
distributed as promptly as practicable in accordance with Section
4.1
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to all Owners or
are
registered under the provisions of such Act; provided,
that
nothing in this Deposit Agreement shall create any obligation on the part of
the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it may
be
lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
SECTION
4.5 Conversion
of Foreign Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to
the
United States, the Depositary shall convert or cause to be converted as promptly
as practicable, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars shall be distributed as promptly
as practicable to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments that 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
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
14
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file as promptly as
practicable 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 or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof that 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 may (i) distribute the foreign currency (or
an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or (ii) hold such foreign currency uninvested
and
without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of
the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
SECTION
4.6 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 shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) who shall be responsible
for any fee assessed by the Depositary pursuant to this Deposit Agreement,
or
(b) on or after which each American Depositary Share will represent the
changed number of Shares. Subject to the provisions of Sections 4.1
through 4.5 and to the other terms and conditions of this Deposit Agreement,
the
Owners on such record date shall be entitled, as the case may be, to receive
the
amount distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion
to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
SECTION
4.7 Voting
of Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) a summary in English of such information as is contained in such notice
of meeting received by the Depositary from the Company, (b) a statement
that the Owners as of the close of business on a specified record date will
be
entitled, subject to any applicable provision of French law and of the
statuts
of
the
Company, 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 their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor,
in so far as practicable, to vote or cause to be voted the amount of Shares
or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such
request. The Depositary shall not vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than
in
accordance with such instructions.
15
In
accordance with French law and the statuts
of the
Company, Shares held in registered form that have been registered in the name
of
the same holder for at least two (2) years will be entitled to double voting
rights. Similarly, American Depositary Shares that have been evidenced by
Receipts registered in the name of the same Owner for at least two (2) years
or
more and represent Shares held in registered form that have been registered
in
the name of the same holder (i.e. the Depositary) for at least two (2) years
will be eligible for double voting rights. In order to have double voting
rights, each Owner of American Depositary Shares must (i) request in writing
that the Depositary hold Shares represented by such American Depositary Shares
in registered form and (ii) must hold its Receipts evidencing such American
Depositary Shares in registered form for at least two (2) years (i.e.,
registered in the name of the same holder in the books of the Depositary) during
which time such Shares are held in registered form by the Depositary. No
other American Depositary Shares will be entitled to double voting
rights.
Notwithstanding
anything in this Section 4.7 to the contrary, the Depositary and the Company
may
modify, amend or adopt additional procedures from time to time as they determine
may be necessary or appropriate.
The
Depositary will take no action to impair the ability of the Custodian to vote
the number of Shares (including the Shares held by the Depositary in registered
form) necessary to carry out the instructions of all Owners under this
Section.
There
can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraph sufficiently prior to the
instruction date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the provisions set forth in this
Section.
16
SECTION
4.8 Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.3 do not apply, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities that shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect
of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the
new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such
case the Depositary may, and shall if the Company shall so request, execute
and
deliver additional Receipts as in the case of a dividend in Shares, or call
for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION
4.9 Reports.
The
Depositary shall make available for inspection by Owners at the Depositary's
Office any reports and communications, including any proxy soliciting material,
received from the Company that are both (a) received by the Depositary 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, upon written request, send to the Owners copies of such reports
when
furnished by the Company pursuant to Section 5.6. Any such reports
and communications, including any such proxy soliciting material, furnished
to
the Depositary by the Company shall be furnished in English, to the extent
such
materials are required to be translated into English pursuant to any regulations
of the Commission.
SECTION
4.10 Lists
of Owners.
Promptly
upon request by the Company, the Depositary shall, at the expense of the
Company, 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 books of the Depositary.
SECTION
4.11 Withholding.
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 charge that the Depositary is obligated to withhold, the
Depositary may by public or private sale 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 charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
17
ARTICLE
5. THE
DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Depositary.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain 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
Owners, provided that such inspection shall not be for the purpose of
communicating with Owners 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, at any time or from time to time,
when
deemed expedient by it in connection with the performance of its duties
hereunder after consultation with the Company to the extent practicable when
such closure is outside the ordinary course of business, or at the reasonable
written request of the Company.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges in the United States, the Depositary shall act as
Registrar or appoint a Registrar or one or more co-registrars for registry
of
such Receipts in accordance with any requirements of such exchange or
exchanges.
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 Registrar or co-registrars
to supply copies of such portions of such records, as the Company may request
and at the Company’s expense.
SECTION
5.2 Prevention
or Delay in Performance by the Depositary or the
Company.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
of any Receipt, if by reason of any provision of any present or future law,
rule
or regulation of the United States or any other country, or of any governmental
or regulatory authority or stock exchange or market or automated quotation
system, or by reason of any provision, present or future, of the statuts
of
the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any
act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from, or
be
subject to any civil or criminal penalty on account of, doing or performing
any
act or thing that by the terms of this Deposit Agreement or Deposited Securities
it is provided shall be done or performed; nor shall the Depositary or the
Company or any of their respective directors, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of any Receipt by reason
of
any nonperformance or delay, caused as aforesaid, in the performance of any
act
or thing that 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. Where, by the terms
of a distribution pursuant to Section 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the
Deposit Agreement, or for any other reason, such distribution or offering may
not be made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
18
SECTION
5.3 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 Owners or Beneficial Owners, except that it agrees
to
perform its obligations specifically set forth in this Deposit Agreement without
gross negligence or bad faith.
The
Depositary assumes no obligation nor shall it be subject to any liability under
this Deposit Agreement to any Owner or Beneficial Owner (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to perform its obligations specifically
set
forth in this Deposit Agreement without gross negligence or bad
faith.
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 shall be furnished as often as may be required, and
the Custodian shall not 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 nonaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Owner or any other person believed
by it in good faith to be competent to give such advice or
information.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal
or
resignation of the Depositary, provided that in connection with the issue out
of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
19
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 (provided that any such action or nonaction is in good
faith) or for the effect of any such vote.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any Receipt,
the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Owner(s) or Beneficial Owner(s), any Receipt or Receipts or
otherwise related hereto to the extent such information is requested or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities
or
other regulators. If such information concerns the Company, the Depositary
undertakes to notify the Company prior to any response to any such demand or
request, to the extent legally permitted, and in any case as soon as practicable
and legally permissible.
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Owners or Beneficial Owners for any indirect, special, punitive or
consequential damages.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
SECTION
5.4 Resignation
and Removal of the Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election to do so 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 ninety (90) days prior
written notice of such removal, to become effective upon the later of (i) the
ninetieth (90th)
day
after delivery of the notice to the Depositary and (ii) 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 reasonable best efforts to appoint a successor depositary,
which shall be a bank or trust company having an office in the Borough of
Manhattan, The City of New York. Every successor depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, 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 Owners of all
outstanding Receipts. Any such successor depositary shall promptly mail
notice of its appointment to the Owners.
20
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION
5.5 The
Custodians.
The
Custodian shall be subject at all times and in all respects to the directions
of
the Depositary and shall be responsible solely to it. Any Custodian may
resign and be discharged from its duties hereunder by notice of such resignation
delivered to the Depositary at least thirty (30) days prior to the date on
which such resignation is to become effective. If upon such resignation
there shall be no Custodian acting hereunder, the Depositary shall, promptly
after receiving such notice, appoint a substitute custodian or custodians,
each
of which shall thereafter be a Custodian hereunder. Whenever the
Depositary in its discretion determines that it is in the best interest of
the
Owners to do so, it may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any 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. Promptly after any such change, the
Depositary shall give notice thereof in writing to the Company.
Upon
the
appointment of any successor depositary hereunder, each 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 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
5.6 Notices
and Reports.
On
or
before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action in
respect of any cash or other distributions or the offering of any rights, the
Company agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
21
The
Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any regulations of the Commission,
and the prompt transmittal by the Company to the Depositary and the Custodian
of
such notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing
by the Company, the Depositary will arrange for the mailing, at the Company's
expense, of copies of such notices, reports and communications to all Owners.
The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
SECTION
5.7 Distribution
of Additional Shares, Rights, etc.
The
Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares,
(3) securities convertible into Shares, or (4) rights to subscribe for
such securities (each a "Distribution"), the Company will promptly furnish
to
the Depositary, unless waived by the Depositary, a written opinion from U.S.
counsel for the Company, which counsel shall be reasonably satisfactory to
the
Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making
such
Distribution available to Owners entitled thereto. If in the opinion of
such counsel a Registration Statement is required, such counsel shall furnish
to
the Depositary a written opinion as to whether or not there is a Registration
Statement in effect that will cover such Distribution.
The
Company agrees with the Depositary that neither the Company nor any company
controlled by, controlling or under common control with the Company will at
any
time deposit any Shares, either originally issued or previously issued and
reacquired by the Company or any such affiliate, unless a Registration Statement
is in effect as to such Shares under the Securities Act of 1933.
SECTION
5.8 Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary and
its
agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) 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 in
accordance herewith (i) by either the Depositary or its agents in their
capacities as such acting hereunder or their respective directors, employees,
agents and affiliates acting hereunder, except, subject to the penultimate
paragraph of this Section 5.8, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary or its agents in their
capacities as such acting hereunder, or (ii) by the Company or any of its
directors, employees, agents (other than the Depositary or its agents) or
affiliates.
22
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent any such liability or expense arises
out
of (i) information relating to the Depositary or its agents (other than the
Company), as applicable, furnished in writing by the Depositary and not
substantively changed or altered by the Company expressly for use in any of
the
foregoing documents or (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not
misleading. The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.9) of a Receipt or Receipts in accordance with Section
2.9 and which would not otherwise have arisen had such Receipt or Receipts
not
been the subject of a Pre-Release pursuant to Section 2.9; provided,
however,
that
the indemnities provided in the preceding paragraph shall apply to any such
liability or expense (i) to the extent that such liability or expense would
have
arisen had a Receipt or Receipts not be the subject of a Pre-Release, or (ii)
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission in any registration statement, proxy statement, prospectus
(or
placement memorandum), or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or any Custodian (other than the Company), as
applicable, furnished in writing and not materially changed or altered by the
Company expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to
make
the information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company, its agents in their capacities as such
acting hereunder and with respect to registration statement liability (Section
11 of the Securities Act), its directors
as
signatories to the Form F-6 against any loss, liability or expense (including
reasonable fees and expenses of counsel) incurred by the Company in respect
of
this Deposit Agreement to the extent such loss, liability or expense is due
to
the negligence or bad faith of the Depositary or its agents acting
hereunder.
Notwithstanding
any other provision of this Deposit Agreement or any Receipts to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other for any indirect, special, punitive or consequential damages other
than reasonable fees and expenses of counsel (collectively "Special Damages")
except (i) to the extent such Special Damages arise from the gross negligence
or
willful misconduct of the party from whom indemnification is sought or (ii)
to
the extent Special Damages arise from or out of a claim brought by a third
party
(including, without limitation, Holders) against the Depositary or its agents,
except to the extent such Special Damages arise out of the gross negligence
or
willful misconduct of the party seeking indemnification hereunder.
23
The
obligations set forth in this Section 5.8 shall survive the termination of
this
Deposit Agreement and the succession or substitution of any indemnified
person.
SECTION
5.9 Charges
of Depositary.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian
or
its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided
in
this Deposit Agreement, (4) such expenses as are incurred by the Depositary
in the conversion of foreign currency pursuant to Section 4.5, (5) a
fee of $5.00 or less per 100 American Depositary Shares (or portion thereof)
for
the execution and delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4
and the surrender of Receipts pursuant to Section 2.5 or 6.2, (6) a
fee of $.02 or less per American Depositary Share (or portion thereof) for
any
cash distribution made pursuant to the Deposit Agreement, including, but not
limited to Sections 4.1 through 4.4 hereof, (7) a fee for the distribution
of securities pursuant to Section 4.2, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred
to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as
if they were Shares) but which securities are instead distributed by the
Depositary to Owners, and (8) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.6 and shall
be
payable at the sole discretion of the Depositary by billing such Owners for
such
charge or by deducting such charge from one or more cash dividends or other
cash
distributions).
The
Depositary, subject to Section 2.9 hereof, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
24
SECTION
5.10 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 times permitted
by the laws or regulations governing the Depositary unless the Company requests
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
SECTION
5.11 Exclusivity.
Subject
to Section 5.4, the Company agrees not to appoint any other depositary for
issuance of American Depositary Receipts so long as JPMorgan Chase Bank, N.A.
is
acting as Depositary hereunder.
ARTICLE
6. AMENDMENT
AND TERMINATION
SECTION
6.1 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 mutual agreement between the Company and the
Depositary without the consent of Owners or Beneficial Owners of Receipts in
any
respect that they may deem necessary or desirable. Any amendment that
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty (30) days
after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such Receipt, 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 Owner of
any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION
6.2 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 Owners of all
Receipts then outstanding at least thirty (30) days prior to the date fixed
in
such notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by mailing notice of such termination to the Company
and
the Owners of all Receipts then outstanding, if at any time ninety (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 5.4. On and after the date of termination, the Owner of a
Receipt will, upon (a) surrender of such Receipt at the Depositary's
Office, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.5, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt. 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 Owners 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 and other property 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 (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). 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 uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts that have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. 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 (after deducting, in each case, the fee
of
the Depositary for the surrender of a Receipt, any expenses for the account
of
the Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
as provided in Section 5.8. 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 5.8 and 5.9 hereof.
25
ARTICLE
7. MISCELLANEOUS
SECTION
7.1 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 the Custodians and shall be open to inspection by any
Owner or Beneficial Owner of a Receipt during business hours.
SECTION
7.2 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.
26
SECTION
7.3 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 way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Owners
and Beneficial Owners as Parties; Binding Effect.
The
Owners 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. Each Owner and Beneficial
Owner, upon acceptance of any American Depositary Share (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement shall be deemed for all purposes to appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take
any and all actions contemplated in the Deposit Agreement and the applicable
Receipt(s), to adopt any and all procedures necessary to comply with applicable
law and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of the Deposit Agreement
and
the applicable Receipt(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
SECTION
7.5 Notices.
Any
and
all notices to be given to the Company shall be deemed to have been duly given
if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Sanofi-Aventis, ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Attention: General Counsel, or any other place
to
which the Company may have transferred its principal office.
Any
and
all notices to be given to the Depositary shall be deemed to have been duly
given if in English and personally delivered or sent by mail or cable, telex
or
facsimile transmission confirmed by letter, addressed to JPMorgan Chase Bank,
N.A., 4 New York Plaza, 13th
Floor,
New York, New York 10004, Attention: American Depositary Receipt
Administration, or any other place to which the Depositary may have transferred
the Depositary's Office.
Any
and
all notices to be given to any Owner shall be deemed to have been duly given
if
personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to such Owner at the address of such Owner as
it
appears on the transfer books for Receipts of the Depositary, or, if such Owner
shall have filed with the Depositary a written request that notices intended
for
such Owner be mailed to some other address, at the address designated in such
request.
Delivery
of a notice sent by mail 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.
The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex
or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
27
SECTION
7.6 Submission
to Jurisdiction; Appointment of Agent for Service of
Process.
The
Company hereby (i) irrevocably designates and appoints Sanofi-Aventis,
Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State of New York, as
the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities,
the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery
of this Deposit Agreement, a written acceptance by such agent of its appointment
as such agent. The Company further agrees to take any and all action,
including the filing of any and all such documents and instruments, as may
be
necessary to continue such designation and appointment in full force and effect
for so long as any American Depositary Shares or Receipts remain outstanding
or
this Agreement remains in force. In the event the Company fails to
continue such designation and appointment in full force and effect, the Company
hereby waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days after
the
same shall have been so mailed.
SECTION
7.7 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 giving effect to its conflicts of laws
provisions except with respect to its authorization and execution by the
Company, which shall be governed by the laws of the Republic of
France.
28
IN
WITNESS WHEREOF, SANOFI-AVENTIS and JPMORGAN CHASE BANK, N.A. have duly executed
this Deposit Agreement as of the day and year first set forth above and all
Owners and Beneficial Owners shall become parties hereto upon acceptance by
them
of Receipts issued in accordance with the terms hereof.
| SANOFI-AVENTIS | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: |
Senior
Vice President, Chief
Financial
Officer
|
|
| |
|
|
| By: | ||
|
|
||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Vice President, Financing and Treasury | |
|
JPMORGAN
CHASE BANK, N.A.,
as
Depositary
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Title: | Senior Vice President | |
29
EXHIBIT
A
____________________________________
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share represents
one-half
of one (½) deposited
Share)
JPMORGAN
CHASE BANK, N.A.
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES,
NOMINAL
VALUE OF €2
EACH OF
(ORGANIZED
UNDER THE LAWS OF THE REPUBLIC OF FRANCE)
JPMorgan
Chase Bank, N.A., as depositary (hereinafter called the "Depositary"), hereby
certifies that __________________________________________, or registered assigns
IS THE OWNER OF _____________________________ AMERICAN
DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of
Sanofi-Aventis, a société
anonyme,
organized under the laws of the Republic of France (herein called the
"Company"). At the date hereof, each American Depositary Share represents
one-half of one (½) Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the Paris, France office
of
BNP Paribas (herein called the "Custodian").
THE
DEPOSITARY'S OFFICE IS LOCATED AT
▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
1. THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"),
all
issued and to be issued upon the terms and conditions set forth in the amended
and restated deposit agreement, dated as of__________, 2007 (herein called
the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
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 become bound
by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners 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 (such Shares, securities, property, and cash
are
herein called "Deposited Securities"). Copies of the Deposit Agreement are
on file at the Depositary's Office in New York City and at the office of the
Custodian.
30
The
statements made on the face and 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.
Capitalized terms defined in the Deposit Agreement and not defined herein
shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER
OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon
surrender at the Depositary's Office of this Receipt, and upon payment of the
fee of the Depositary provided in this Receipt, and subject to the terms and
conditions of the Deposit Agreement, the Owner 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 transfer of the Deposited
Securities to an account in the name of such Owner or such name as shall be
designated by such Owner maintained by the Company or its agent for registration
and transfer of Shares in the case of Shares in registered form, or maintained
by an accredited financial institution in the case of Shares in bearer form
and
the delivery of any other securities, property and cash to which such Owner
is
then entitled in respect of this Receipt. Such delivery will be made at
the option of the Owner hereof, either at the office of the Custodian or at
the
Depositary's Office, provided that the forwarding of certificates for Shares
or
other Deposited Securities for such delivery at the Depositary's Office shall
be
at the risk and expense of the Owner hereof.
3. TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary by the
Owner hereof in person or by a duly authorized attorney, upon surrender of
this
Receipt properly endorsed for transfer or accompanied by proper instruments
of
transfer and funds sufficient to pay any applicable transfer taxes and the
expenses of the Depositary and upon compliance with such regulations, if any,
as
the Depositary may establish for such purpose. This Receipt may be split
into other such Receipts, or may be combined with other such Receipts into
one
Receipt, evidencing the same aggregate number of American Depositary Shares
as
the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination, or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may require payment from the depositor
of the Shares or the presentor 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 and
fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as provided in 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 regulations the Depositary may establish
consistent with the provisions of the Deposit Agreement or this Receipt,
including, without limitation, this Article 3.
31
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary 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
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of the Deposit Agreement or this Receipt
or
the Company’s statuts,
or for
any other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused
by
closing the transfer books of the Depositary or the Company or the deposit
of
Shares in connection with voting at a shareholders' meeting, or the payment
of
dividends, (ii) the payment of fees, taxes and similar charges, 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 the 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.
4. LIABILITY
OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If
any
tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof
to
the Depositary. The Depositary may refuse to effect any transfer of this
Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and
may
withhold any dividends or other distributions, or may sell for the account
of
the Owner or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this 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 and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES
ON DEPOSIT OF SHARES.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor, if
applicable, are validly issued, subscribed, fully paid, non-assessable, and
free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that such Shares and the Receipts evidencing
American Depositary Shares representing such Shares are not restricted under
the
Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts.
32
6. FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any Owner or Beneficial Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
or
such information relating to the registration on the books of the Company or
the
Foreign Registrar, if applicable, to execute such certificates and to make
such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or 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
or such representations and warranties made. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the Depositary that
any necessary approval has been granted by any governmental body in the Republic
of France that is then performing the function of the regulation of currency
exchange.
7. CHARGES
OF DEPOSITARY.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3
of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian
or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement, (4) such
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.5 of the Deposit Agreement, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4 of
the Deposit Agreement and the surrender of Receipts pursuant to Section 2.5
or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to
Sections 4.1 through 4.4 of the Deposit Agreement, (7) a fee for the
distribution of securities pursuant to Section 4.2 of the Deposit
Agreement, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares), but which
securities are instead distributed by the Depositary to Owners, and (8) any
other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 of the Deposit Agreement and shall be payable at
the
sole discretion of the Depositary by billing such Owners for such charge or
by
deducting such charge from one or more cash dividends or other cash
distributions).
33
The
Depositary, subject to Article 8 hereof, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE
OF RECEIPTS.
Unless
requested in writing by the Company to cease doing so, the Depositary may,
notwithstanding Section 2.3 of the Deposit Agreement, execute and deliver
Receipts prior to the receipt of shares pursuant to Section 2.2 of the Deposit
Agreement ("Pre-Release"). The Depositary may, pursuant to Section 2.5 of
the Deposit Agreement, deliver Shares upon the receipt and cancellation of
Receipts which have been Pre-Released, whether or not such cancellation is
prior
to the termination of such Pre-Release or the Depositary knows that such Receipt
has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Unless otherwise agreed in
writing, each Pre-Release will be (a) preceded or accompanied by a written
representation and agreement from the person to whom Receipts are to be
delivered (the "Pre-Releasee") that the Pre-Releasee, or its customer, (i)
owns
the shares or Receipts to be remitted, as the case may be, (ii) assigns all
beneficial rights, title and interest in such Shares or Receipts, as the case
may be, to the Depositary in its capacity as such and for the benefit of the
Owners, and (iii) will not take any action with respect to such Shares or
Receipts, as the case may be, that is inconsistent with the transfer of
beneficial ownership (including, without the consent of the Depositary,
disposing of such Shares or Receipts, as the case may be), other than in
satisfaction of such Pre-Release, (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited
but represented by American Depositary Shares outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves
the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of general application. The Depositary will
also set Dollar limits with respect to Pre-Release transactions to be entered
into hereunder with any particular Pre-Releasee on a case-by-case basis as
the
Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary
as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
34
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
9. TITLE
TO RECEIPTS.
It
is a
condition of this Receipt and every successive Owner and Beneficial Owner of
this Receipt by accepting or holding the same consents and agrees, that title
to
this Receipt 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 under the laws of New York; provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the person
in whose name this Receipt is registered on the books of the Depositary 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 or for all other purposes.
10.
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
signatory 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 of a duly
authorized officer of the Registrar.
11.
REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports and communications will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The
Depositary will make available for inspection by Owners of Receipts at the
Depositary's Office any reports and communications, including any proxy
soliciting material, received from the Company that are both (a) received
by the Depositary 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, upon written request, send to Owners of Receipts
copies of such reports when furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
35
The
Depositary will keep books for the registration of Receipts and transfers of
Receipts that at all reasonable times shall be open for inspection by the Owners
of Receipts provided that such inspection shall not be for the purpose of
communicating with Owners 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.
12.
DIVIDENDS
AND DISTRIBUTIONS.
Whenever
the Depositary receives any cash dividend or other cash distribution on any
Deposited Securities, the Depositary will, if at the time of receipt thereof
any
amounts received in a foreign currency can in the judgment of the Depositary
be
converted on a reasonable basis into United States dollars transferable to
the
United States, and subject to the Deposit Agreement, convert such dividend
or
distribution into dollars and will distribute as promptly as practicable the
amount thus received (net of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.9 of the Deposit Agreement) to the
Owners of Receipts entitled thereto; provided,
however,
that in
the event that the Company or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, the amount distributed
to
the Owners of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject
to the provisions of Section 4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto as promptly as practicable, in any
manner that the Depositary may reasonably deem equitable and practicable for
accomplishing such distribution; provided,
however,
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners of Receipts entitled thereto, or if for any
other reason 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, but
not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of
the
fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.9 of the Deposit Agreement) will be distributed by the Depositary
to the Owners of Receipts entitled thereto all in the manner and subject to
the
conditions described in Section 4.1 of the Deposit Agreement; provided,
however,
that no
distribution to Owners pursuant this Article 12 shall be unreasonably delayed
by
any action of the Depositary.
36
If
any
distribution consists of a dividend in, or free distribution of, Shares, the
Depositary may or shall, if the Company shall so request, distribute as promptly
as practicable to the Owners of outstanding Receipts entitled thereto,
additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to
the
deposit of Shares and the issuance of American Depositary Shares evidenced
by
Receipts, including the withholding of any tax or other governmental charge
as
provided in Section 4.11 of the Deposit Agreement and the payment of the fees
and expenses of the Depositary as provided in Article 7 hereof and
Section 5.9 of the Deposit Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary
will
sell the amount 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 4.1 of the Deposit Agreement; provided,
however,
that no
distribution to Owners pursuant this Article 12 shall be unreasonably delayed
by
any action of the Depositary. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent
the
additional Shares distributed upon the Deposited Securities represented
thereby.
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 charge that the Depositary is obligated to withhold, the
Depositary may by public or private sale 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 any
such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13.
RIGHTS.
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, shall
have discretion as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms of
such
rights offering or for any other reason, the Depositary may not either make
such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights
to
lapse. If at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights available to
all
or certain Owners but not to other Owners, the Depositary may distribute to
any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it reasonably deems
appropriate.
37
In
circumstances in which rights would otherwise not be distributed, if an Owner
requests the distribution of warrants or other instruments in order to exercise
the rights allocable to the American Depositary Shares of such Owner under
the
Deposit Agreement, the Depositary will as promptly as practicable make such
rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to
permit such rights to be exercised and (b) such Owner has executed such
documents as the Company has determined in its sole discretion are reasonably
required under applicable law.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise
such
rights, upon payment by such Owner to the Depositary for the account of such
Owner 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 and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased
to
be delivered to the Depositary on behalf of such Owner. As agent for such
Owner, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.2 of the Deposit Agreement, and shall, pursuant to
Section 2.3 of the Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of
this Article 13, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions
on
sale, deposit, cancellation, and transfer under such laws.
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Owners, it may, and at the request
of the Company shall use its reasonable efforts to, sell the rights, warrants
or
other instruments in proportion to the number of American Depositary Shares
held
by the Owners to whom it has determined it may not lawfully or feasibly make
such rights available. The Depositary shall allocate the net proceeds of
such sales (net of the fees and expenses of the Depositary as provided in
Section 5.9 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled
to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Such
proceeds shall be distributed as promptly as practicable in accordance with
Section 4.1 of the Deposit Agreement.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to all Owners or
are
registered under the provisions of such Act; provided,
that
nothing in the Deposit Agreement shall create, any obligation on the part of
the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
38
The
Depositary shall not be responsible for any failure to determine that it may
be
lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
14.
CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to
the
United States, the Depositary shall convert or cause to be converted, as
promptly as practicable, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed,
as
promptly as practicable, to the Owners entitled thereto or, if the Depositary
shall have distributed any warrants or other instruments that 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 Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in
Section 5.9 of the Deposit Agreement.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file as promptly as
practicable 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 or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof that 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 may (i) distribute the foreign currency (or
an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or (ii) hold such foreign currency uninvested
and
without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of
the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
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15.
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 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 shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts
who shall be (i) entitled to receive such dividend, distribution or rights
or the net proceeds of the sale thereof, (ii) entitled to give instructions
for the exercise of voting rights at any such meeting, or (iii) who shall be
responsible for any fee assessed by the Depositary pursuant to the Deposit
Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
16.
VOTING
OF DEPOSITED SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) a summary in English of such information as is contained in such notice
of meeting received by the Depositary from the Company, (b) a statement
that the Owners as of the close of business on a specified record date will
be
entitled, subject to any applicable provision of French law and of the
statuts
of
the
Company, 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 their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor,
in so far as practicable, to vote or cause to be voted the amount of Shares
or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such
request. The Depositary shall not vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than
in
accordance with such instructions.
In
accordance with French law and the statuts
of the
Company, Shares held in registered form that have been registered in the name
of
the same holder for at least two (2) years will be entitled to double voting
rights. Similarly, American Depositary Shares that have been evidenced by
Receipts registered in the name of the same Owner for at least two (2) years
or
more and represent Shares held in registered form that have been registered
in
the name of the same holder (i.e. the Depositary) for at least two (2) years
will be eligible for double voting rights. In order to have double voting
rights, each Owner of American Depositary Shares must (i) request in writing
that the Depositary hold Shares represented by such American Depositary Shares
in registered form and (ii) must hold its Receipts evidencing such American
Depositary Shares in registered form for at least two (2) years (i.e.,
registered in the name of the same holder in the books of the Depositary) during
which time such Shares are held in registered form by the Depositary. No
other American Depositary Shares will be entitled to double voting
rights.
40
Notwithstanding
anything in this Article to the contrary, the Depositary and the Company may
modify, amend or adopt additional procedures from time to time as they determine
may be necessary or appropriate.
The
Depositary will take no action to impair the ability of the Custodian to vote
the number of Shares (including the Shares held by the Depositary in registered
form) necessary to carry out the instructions of all Owners under this
Article.
There
can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in this Article sufficiently prior to the instruction
date
to ensure that the Depositary will vote the Shares or Deposited Securities
in
accordance with the provisions set forth in this Article.
17.
CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 4.3 of the Deposit Agreement
do not apply, upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation, or sale of assets
affecting the Company or to which it is a party, any securities that shall
be
received by the Depositary or a 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, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence.
In any such case the Depositary may, and shall if the Company shall so
request, execute and deliver additional Receipts as in the case of a dividend
in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
18.
LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
of any Receipt, if by reason of any provision of any present or future law,
rule
or regulation of the United States or any other country, or of any other
governmental or regulatory authority or stock exchange or market or automated
quotation system, or by reason of any provision, present or future, of the
statuts
of
the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any
act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from or
be
subject to any civil or criminal penalty on account of doing or performing
any
act or thing that by the terms of the Deposit Agreement or Deposited Securities
it is provided shall be done or performed; nor shall the Depositary or the
Company or any of their respective directors, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of a Receipt by reason
of
any non-performance or delay, caused as aforesaid, in the performance of any
act
or thing that by the terms of the 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 the Deposit Agreement. Where, by the terms
of a distribution pursuant to Section 4.1, 4.2 or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the
Deposit Agreement, such distribution or offering may not be made available
to
Owners of Receipts, and the Depositary may not dispose of such distribution
or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Depositary shall not make such distribution or offering, and
shall allow any rights, if applicable, to lapse.
41
Neither
the Company nor the Depositary assumes any obligation or shall be subject to
any
liability under the Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that they agree to perform their obligations specifically
set
forth in the Deposit Agreement without gross negligence or bad faith. The
Depositary shall not be subject to any liability with respect to the validity
or
worth of the Deposited Securities. 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 shall
be
furnished as often as may be required, and the Custodian shall not 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 nonaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner 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 (provided that any such action
or
nonaction is in good faith) or for the effect of any such vote. The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with a matter arising wholly after the removal
or
resignation of the Depositary, provided that in connection with the issue out
of
which such potential liability arises, the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any Receipt,
the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Owner(s) or Beneficial
Owner(s), any Receipt or Receipts or otherwise related hereto to the extent
such
information is requested or required by
or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or other
regulators.
42
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Owners or Beneficial Owners for any indirect, special, punitive or
consequential damages.
The
Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company under
certain circumstances.
| 19. | RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN. |
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 provided in the Deposit Agreement. The Depositary may at
any time be removed by the Company by ninety (90) days prior written notice
of
such removal, to become effective upon the later of (i) the ninetieth
(90th)
day
after delivery of the notice to the Depositary and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement. Whenever the Depositary in its discretion determines
that it is in the best interest of the Owners of Receipts to do so, it may
appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any time
and
from time to time be amended by mutual agreement between the Company and the
Depositary without the consent of Owners or Beneficial Owners of Receipts in
any
respect that they may deem necessary or desirable. Any amendment that
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration
of
thirty (30) days after notice of such amendment shall have been given to the
Owners of outstanding Receipts. Every Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, 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 Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby except in order to comply with
mandatory provisions of applicable law.
43
21.
TERMINATION
OF DEPOSIT AGREEMENT.
The
Depositary at any time at the direction of the Company, shall terminate the
Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least thirty (30) days prior to the date fixed
in
such notice for such termination. The Depositary may likewise terminate
the Deposit Agreement by mailing notice of such termination to the Company
and
the Owners of all Receipts then outstanding if at any time ninety (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 the Deposit
Agreement. On and after the date of termination, the Owner of a Receipt
will, upon (a) surrender of such Receipt at the Depositary's Office, (b) payment
of the fee of the Depositary for the surrender of Receipts referred to in
Section 2.5 of the Deposit Agreement, and (c) payment of any applicable taxes
or
governmental charges, be entitled to delivery, to him or upon his order, of
the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. 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 Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights and other property as provided in the
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 (after deducting, in each case, the
fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of
the
Deposit Agreement, and any applicable taxes or governmental charges). 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 uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts that have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for
the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges) and except as provided in
Section 5.8 of the Deposit Agreement. Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary with respect
to
indemnification, charges, and expenses.
44
22.
SUBMISSION
TO JURISDICTION; WAIVER OF IMMUNITIES.
In
the
Deposit Agreement, the Company has (i) appointed Sanofi-Aventis,
Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State of New York, as
the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities,
the
American Depositary Shares, the Receipts or this Agreement, (ii) consented
and
submitted to the jurisdiction of any state or federal court in the State of
New
York in which any such suit or proceeding may be instituted, and (iii) agreed
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding.
23. APPOINTMENT.
Each
Owner and Beneficial Owner of Receipts shall be parties to the Deposit Agreement
and shall be bound by all of the terms and conditions thereof and of the
Receipts by acceptance thereof. Each Owner and Beneficial Owner, upon acceptance
of any American Depositary Share (or any interest therein) issued in accordance
with the terms and conditions of the Deposit Agreement shall be deemed for
all
purposes to appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated
in
the Deposit Agreement and the applicable Receipt(s), to adopt any and all
procedures necessary to comply with applicable law and to take such action
as
the Depositary in its sole discretion may deem necessary or appropriate to
carry
out the purposes of the Deposit Agreement and the applicable Receipt(s), the
taking of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
45