Exhibit 1
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SANOFI-SYNTHELABO
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of June 28, 2002
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.........................................................1
SECTION 1.01 American Depositary Shares....................................1
SECTION 1.02 Beneficial Owner..............................................2
SECTION 1.03 Commission....................................................2
SECTION 1.04 Company.......................................................2
SECTION 1.05 Custodian.....................................................2
SECTION 1.06 Deliver; Deposit; Surrender; Transfer; Withdraw; Entry........2
SECTION 1.07 Deposit Agreement.............................................2
SECTION 1.08 Depositary; Corporate Trust Office............................3
SECTION 1.09 Deposited Securities..........................................3
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........................................4
SECTION 1.16 Shares........................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS...................................4
SECTION 2.01 Form and Transferability of Receipts..........................4
SECTION 2.02 Deposit of Shares.............................................5
SECTION 2.03 Execution and Delivery of Receipts............................6
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts....6
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares................7
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.............................................8
SECTION 2.07 Lost Receipts, etc............................................9
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts..........9
SECTION 2.09 Pre-Release of Receipts.......................................9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS....10
SECTION 3.01 Filing Proofs, Certificates and Other Information............10
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes.............10
SECTION 3.03 Warranties on Deposit of Shares..............................11
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ARTICLE 4. THE DEPOSITED SECURITIES...........................................11
SECTION 4.01 Cash Distributions...........................................11
SECTION 4.02 Distributions Other Than Cash, Shares or Rights..............12
SECTION 4.03 Distributions in Shares......................................12
SECTION 4.04 Rights.......................................................13
SECTION 4.05 Conversion of Foreign Currency...............................15
SECTION 4.06 Fixing of Record Date........................................16
SECTION 4.07 Voting of Deposited Securities...............................16
SECTION 4.08 Changes Affecting Deposited Securities.......................17
SECTION 4.09 Reports......................................................18
SECTION 4.10 Lists of Owners..............................................18
SECTION 4.11 Withholding..................................................18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.....................18
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary...18
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company................................................19
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.20
SECTION 5.04 Resignation and Removal of the Depositary....................21
SECTION 5.05 The Custodians...............................................21
SECTION 5.06 Notices and Reports..........................................22
SECTION 5.07 Distribution of Additional Shares, Rights, etc...............22
SECTION 5.08 Indemnification..............................................23
SECTION 5.09 Charges of Depositary........................................24
SECTION 5.10 Retention of Depositary Documents............................25
SECTION 5.11 Exclusivity..................................................25
ARTICLE 6. AMENDMENT AND TERMINATION..........................................25
SECTION 6.01 Amendment....................................................25
SECTION 6.02 Termination..................................................25
ARTICLE 7. MISCELLANEOUS......................................................26
SECTION 7.01 Counterparts.................................................26
SECTION 7.02 No Third Party Beneficiaries.................................27
SECTION 7.03 Severability.................................................27
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect......27
SECTION 7.05 Notices......................................................27
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service
of Process.............................................28
SECTION 7.07 Governing Law................................................28
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June 28, 2002, among
Sanofi-Synthelabo, a societe anonyme, organized under the laws of the Republic
of France (herein called the Company), THE BANK OF NEW YORK, 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 1.01 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 4.03 or a
change in Deposited Securities covered by Section 4.08 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.
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SECTION 1.02 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 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.04 Company.
The term "Company" shall mean Sanofi-Synthelabo, a societe
anonyme organized under the laws of the Republic of France, and its successors.
SECTION 1.05 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 5.05, as substitute or
additional custodian or custodians hereunder, as the context shall require and
shall also mean all of them collectively.
SECTION 1.06 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, shall refer to appropriate
adjustments in the records maintained by (1) the Depositary, (2) the Depository
Trust Company ("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 1.07 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.
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SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New
York banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary, which at the date of this Agreement is 101 Barclay
Street, New York, New York 10286.
SECTION 1.09 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 4.05.
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.
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.
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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.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual signature of a duly authorized 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.
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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 2.02 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.
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.
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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 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to
Section 2.02 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 at its Corporate Trust Office, 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 5.09,
and of all taxes and governmental charges and fees payable in connection with
such deposit and the transfer of the Deposited Securities.
SECTION 2.04 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.
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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 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and
upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.09 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.
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 2.06, 3.01 and 3.02 and to the other terms
and conditions of this Deposit Agreement, to or upon the written order of the
person or persons designated in the order delivered to the Depositary as 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 Corporate Trust Office of the
Depositary 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
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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 Corporate Trust
Office of the Depositary. 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 4.08), or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the receipt and
cancellation of Receipts.
SECTION 2.06 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 2.06.
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
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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 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and 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 2.08 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.
SECTION 2.09 Pre-Release of Receipts.
Unless requested in writing by the Company to cease doing so,
the Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, 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. 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,
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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.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
RECEIPTS
SECTION 3.01 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 3.02 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
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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 3.03 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.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 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 4.05, 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
5.09) 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 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 to
enable eligible United States Owners and beneficial owners of Receipts to
qualify for a reduced withholding tax rate of 15%, if available at the time the
dividends are paid, to recover any excess French
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withholding taxes initially withheld or deducted with respect to dividends and
other distributions to such Owners and beneficial owners may be eligible from
the French Treasury or to receive a refund of any precompte paid to the French
Treasury by the Company.
Upon request of any United States Owner of Receipts the
Depositary will provide a copy of Form RF 1A EU no. 5052, or such other form as
may be promulgated from time to time by the French tax authorities for such
purpose, together with instructions to such Owner and beneficial owners. 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.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever
the Depositary shall receive any distribution other than a distribution
described in Section 4.01, 4.03 or 4.04, 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 5.09) shall be
distributed by the Depositary to the Owners entitled thereto, all in the manner
and subject to the conditions described in Section 4.01; provided, however, that
no distribution to Owners pursuant to this Section, shall be unreasonably
delayed by any action of the Depositary.
SECTION 4.03 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
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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 5.09. 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 4.01; 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.
SECTION 4.04 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.
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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 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 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.
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 5.09 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 4.01
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.
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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 4.05 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 5.09.
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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SECTION 4.06 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 4.01 through 4.05 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 4.07 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
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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 4.07 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.
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 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.
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SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners
at its Corporate Trust 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 5.06. 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.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust
Office, 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
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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 5.02 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 or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, 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 4.01, 4.02, or 4.03 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 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
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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.
SECTION 5.03 Obligations of the Depositary, the Custodian and the
Company.
The Company assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to Owners or Beneficial Owners,
except that it agrees to perform its obligations specifically set forth in this
Deposit Agreement without 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 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.
The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
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SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
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.
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 5.05 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
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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 5.06 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.
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 5.07 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
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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 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, and except to the extent that such liability or expense arises out of
information relating to the Depositary or the Custodian, as applicable,
furnished in writing to the Company by the Depositary expressly for use in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
Shares or if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading, or (ii) by the
Company or any of its directors, employees, agents and affiliates.
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 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
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
- 23 -
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 Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense that may arise out of acts performed or omitted by the Depositary or its
Custodian or their respective directors, employees, agents and affiliates due to
their negligence or bad faith.
SECTION 5.09 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 4.03), 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 4.05, (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 2.03, 4.03 or 4.04 and the
surrender of Receipts pursuant to Section 2.05 or 6.02, (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 4.01 through 4.04 hereof, (7) a fee for the distribution of
securities pursuant to Section 4.02, 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 4.06 and shall be payable at the sole
discretion of the Depositary by billing such Owners
- 24 -
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The Depositary, subject to Section 2.09 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
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 5.04, the Company agrees not to appoint any
other depositary for issuance of American Depositary Receipts so long as The
Bank of New York is acting as Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by 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 6.02 Termination.
The Depositary shall, at any time at the direction of the
Company, terminate this Deposit Agreement by mailing notice of such termination
to the Owners of all Receipts then outstanding at least thirty (30) days prior
to the date fixed in such notice
- 25 -
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 5.04. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.05, 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 one year
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
5.08. 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 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute
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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 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 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.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to Sanofi-Synthelabo,
174 avenue de France, 75013 Paris, France, 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
The Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust 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.
- 27 -
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.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for
Service of Process.
The Company hereby (i) irrevocably designates and appoints
Sanofi-Synthelabo, Inc., 90 Park Avenue, New York, New York 10016, 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 7.07 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.
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IN WITNESS WHEREOF, SANOFI-SYNTHELABO and THE BANK OF NEW YORK
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-SYNTHELABO
By:______________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:______________________
Name:
Title:
- 29 -
EXHIBIT A
___________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
one-half of one (1/2) deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES,
NOMINAL VALUE OF (EURO)2 EACH OF
SANOFI-SYNTHELABO
(ORGANIZED UNDER THE LAWS OF THE REPUBLIC OF FRANCE)
The Bank of New York, 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-Synthelabo, a societe 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 (1/2) 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 Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at 101 Barclay
Street, New York, N.Y. 10286, and its principal executive office is located at
One Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
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 deposit agreement, dated as of June 28, 2002 (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 Corporate Trust Office in New York City and at the
office of the Custodian.
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 Corporate Trust Office of the Depositary 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 Corporate Trust Office of the Depositary, provided that
the forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Corporate Trust Office of the Depositary 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 at its Corporate Trust Office 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
- 2 -
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.
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
- 3 -
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.
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,
- 4 -
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 4.03 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 4.05 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 2.03, 4.03 or 4.04 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.05 or 6.02 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 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 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 4.06 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).
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 2.03 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of shares pursuant to Section 2.02 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.05 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. 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")
- 5 -
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. 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
- 6 -
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 450 Fifth Street, N.W., Washington, D.C.
20549.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust 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.
The Depositary will keep books, at its Corporate Trust Office, 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 5.09 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
- 7 -
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 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 5.09 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 4.01 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 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 5.09 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 4.01 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
- 8 -
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.
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 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 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
- 9 -
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 5.09 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 4.01 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.
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
- 10 -
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 5.09 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.
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.
- 11 -
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.
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.
- 12 -
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 4.03 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 or regulation of the United States or any other country,
or of any other governmental or regulatory authority, 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 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 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
- 13 -
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.
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 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 or the effect of any such vote,
provided that any such action or nonaction is in good faith. 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.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted, in accordance with the provisions of the Deposit Agreement
and of the Receipts, as the same may be amended, modified, or supplemented from
time to time, (i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence or bad faith of either of them, and except to the
extent that such liability or expense arises out of information relating to the
Depositary or the Custodian, as applicable, furnished in writing to the Company
by the Depositary expressly for use in any registration statement, proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) relating to the Shares or if such information
is provided, the failure to state a material fact
- 14 -
necessary to make the information provided not misleading, or (ii) by the
Company or any of its directors, employees, agents and affiliates.
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 Article 8) of a Receipt or Receipts in accordance
with Article 8 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Article 8; 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. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
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
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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.
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 Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.05 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 one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the
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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 5.08
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.
22. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed
Sanofi-Synthelabo, Inc., 90 Park Avenue, New York, New York 10016, 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.
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