Common use of Amendments to the Form of Adr Clause in Contracts

Amendments to the Form of Adr. SECTION 3.01. Paragraph (12) of the form of ADR is amended by replacing the last sentence thereof with the following: To the extent such instructions are not so received by the Depositary from any Holder, the Depositary shall deem such Holder to have so instructed the Depositary to give a discretionary proxy to a person designated by the Company and the Depositary shall endeavor insofar as practicable and permitted under the provisions of or governing Deposited Securities to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs as to which such instructions are so given, provided that no such instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing) or the Depositary reasonably believes (in the case of (y) or (z) below) that (x) the Company does not wish such proxy given, (y) substantial opposition exists or (z) materially affects the rights of holders of Shares. Notwithstanding anything to the contrary contained herein, the Depositary shall not be obligated to give any such deemed instruction unless and until the Depositary has been provided with an opinion of counsel to the Company, which opinion shall initially be provided on the signing of the Deposit Agreement, in form and substance satisfactory to the Depositary, to the effect that (i) the granting of such discretionary proxy does not subject the Depositary to any reporting obligations in Japan,(ii) the granting of such proxy will not result in a violation of Japanese law, rule, regulation or permit, (iii) the voting arrangement and proxy as contemplated herein will be given effect under Japanese law, and (iv) the Depositary will not be deemed to be authorized to exercise any discretion when voting in accordance with the terms of this paragraph (12) under Japanese law and, the Depositary will not be subject to any liability under Japanese law for losses arising from the exercise of the voting arrangements set forth in this paragraph (12). The Company agrees to direct its counsel to inform it of any such changes in Japanese law and shall be responsible for its failure to so inform.

Amendments to the Form of Adr. SECTION 3.01. Paragraph (12) 8) of the form Form of ADR is amended to read as follows: Each Holder and each Beneficial Owner agrees to comply with all applicable provisions of German law and the Company's Articles of Association regarding the notification of such person's interest in Shares, which provisions at the date of the Agreement include Sections 21 and 22 of the Securities Trading Act (Wertpapierhandelsgesetz). At the date of the Agreement, (i) the statutory notification obligations of the Securities Trading Act apply to anyone whose holding, either directly or by replacing way of imputation pursuant to the last sentence thereof provisions of Section 22 of the Securities Trading Act, of voting rights in the Company reaches or exceeds 5%, 10%, 25%, 50% or 75% or, after having reached or exceeded any such threshold, falls below that threshold. Each Holder and each Beneficial Owner acknowledges that failure to provide on a timely basis any required notification of an interest in Shares may result in withholding of certain rights, including voting and dividend rights, in respect of the Shares in which such Holder or Beneficial Owner has an interest. In order to enforce such legal sanctions for failure to notify, the Company reserves the right to instruct Holders and Beneficial Owners, and Holders and Beneficial Owners hereby agree, to deliver their ADSs for cancellation and withdrawal of the Deposited Securities so as to permit the Company to deal directly with the following: To Holder or Beneficial Owner thereof as a holder of Shares. The Company and the extent Depositary may from time to time request Holders and Beneficial Owners to provide information as to the capacity in which they hold ADRs and regarding the identity of any other persons then or previously interested in such instructions are not so ADRs and various other related matters. Each Holder and each Beneficial Owner agrees to provide any such information reasonably requested by the Company or the Depositary pursuant to this paragraph and such agreement shall survive any disposition of such Holder's or Beneficial Owner's interest in Shares or ADRs. The Depositary agrees to use reasonable efforts to forward any such requests to the Holders and to forward to the Company any responses to such requests received by the Depositary from any Holderand to use its reasonable efforts, at the Depositary Company’s request, to assist the Company in obtaining such information with respect to the ADRs, provided that nothing herein shall deem such Holder to have so instructed be interpreted as obligating the Depositary to give a discretionary proxy provide or obtain any such information not provided to a person designated by the Company and the Depositary shall endeavor insofar as practicable and permitted under the provisions of or governing Deposited Securities to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs as to which such instructions are so given, provided that no such instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing) or the Depositary reasonably believes (in the case of (y) or (z) below) that (x) the Company does not wish such proxy given, (y) substantial opposition exists or (z) materially affects the rights of holders of Shares. Notwithstanding anything to the contrary contained herein, the Depositary shall not be obligated to give any such deemed instruction unless and until the Depositary has been provided with an opinion of counsel to the Company, which opinion shall initially be provided on the signing of the Deposit Agreement, in form and substance satisfactory to the Depositary, to the effect that (i) the granting of such discretionary proxy does not subject the Depositary to any reporting obligations in Japan,(ii) the granting of such proxy will not result in a violation of Japanese law, rule, regulation or permit, (iii) the voting arrangement and proxy as contemplated herein will be given effect under Japanese law, and (iv) the Depositary will not be deemed to be authorized to exercise any discretion when voting in accordance with the terms of this paragraph (12) under Japanese law and, the Depositary will not be subject to any liability under Japanese law for losses arising from the exercise of the voting arrangements set forth in this paragraph (12). The Company agrees to direct its counsel to inform it of any such changes in Japanese law and shall be responsible for its failure to so informHolders.

Amendments to the Form of Adr. SECTION 3.01. Paragraph (1213) of the form of ADR is amended by replacing to read as follows: As soon as practicable after receipt from the last sentence thereof with the following: To the extent such instructions are not so received by the Depositary from Company of notice of any Holdermeeting or solicitation of consents or proxies of holders of Shares or other Deposited Securities, the Depositary shall deem mail to Holders a notice stating (a) such information as is contained in such notice and any solicitation materials, (b) that each Holder to have so instructed on the record date set by the Depositary therefor will be entitled to give a discretionary proxy instruct the Depositary as to a person designated the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by the Company ADSs evidenced by such Holder's ADRs and (c) the manner in which such instructions may be given. Upon receipt of instructions of a Holder on such record date in the manner and on or before the date established by the Depositary for such purpose, the Depositary shall endeavor insofar as practicable and permitted under the provisions of or governing Deposited Securities to give a discretionary proxy vote or cause to a person designated by the Company to vote be voted the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs as in accordance with such instructions. The Depositary shall not vote or attempt to which such instructions are so given, provided exercise the right to vote that no such instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing) or the Depositary reasonably believes (in the case of (y) or (z) below) that (x) the Company does not wish such proxy given, (y) substantial opposition exists or (z) materially affects the rights of holders of Shares. Notwithstanding anything attaches to the contrary contained hereinShares or other Deposited Securities, other than in accordance with such instructions. At the request of the Company, the Depositary shall not be obligated deliver, at least two business days prior to give any the date of such deemed instruction unless and until meeting, a schedule of all instructions received from Holders in accordance with which the Depositary has been provided with an opinion will vote or cause to be voted, the Deposited Securities represented by the ADSs evidenced by such ADRs at such meeting and corresponding information indicating the number of counsel copies of instructions to be delivered and the Company, which opinion shall initially be provided on the signing period of the Deposit Agreement, in form and substance satisfactory to the Depositary, to the effect time that (i) the granting of such discretionary proxy does not subject is required by the Depositary to any reporting obligations in Japan,(ii) furnish copies of all such instructions and the granting of such proxy will not result in a violation of Japanese law, rule, regulation or permit, (iii) the voting arrangement Company and proxy as contemplated herein will be given effect under Japanese law, and (iv) the Depositary will not be deemed agree upon a schedule for such delivery and the costs to be authorized to exercise any discretion when voting in accordance with paid therefor by the terms of this paragraph (12) under Japanese law and, the Depositary will not be subject to any liability under Japanese law for losses arising from the exercise of the voting arrangements set forth in this paragraph (12)Company. The Company agrees to direct its counsel to inform it of make the notice and any solicitation material for any such changes meeting available to Beneficial Owners in Japanese law a timely manner, and in any event no less than 28 days prior to the date of the relevant meeting of holders of Shares, in order to allow such Beneficial Owners to provide voting instructions to the relevant Holder. For the avoidance of doubt, it is agreed that the Company shall bear the sole responsibility for distributing any notices and solicitation materials to Beneficial Owners pursuant to the foregoing procedures, and the Depositary shall assist the Company in conducting such distribution and shall not be responsible liable for its the failure of the Company to do so informor to do so in a timely manner. The Company and the Depositary agree to cooperate with each other in connection with the voting procedures described in this paragraph (13).

Amendments to the Form of Adr. SECTION 3.01. Paragraph Article (1221) of the form of ADR American Depositary Receipt is amended to read as follows: The Depositary shall, at any time at the written direction of the Company, terminate this Deposit Agreement by replacing mailing notice of such termination to the last sentence thereof with Holders of all Receipts then outstanding at least 30 days prior to the following: To the extent date fixed in such instructions are not so received by the Depositary from any Holdernotice for such termination, provided that, the Depositary shall deem such Holder be reimbursed for any amounts, fees, costs or expenses owed to have so instructed the Depositary to give a discretionary proxy to a person designated by the Company and the Depositary shall endeavor insofar as practicable and permitted under the provisions of or governing Deposited Securities to give a discretionary proxy to a person designated by the Company to vote the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs as to which such instructions are so given, provided that no such instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing) or the Depositary reasonably believes (in the case of (y) or (z) below) that (x) the Company does not wish such proxy given, (y) substantial opposition exists or (z) materially affects the rights of holders of Shares. Notwithstanding anything to the contrary contained herein, the Depositary shall not be obligated to give any such deemed instruction unless and until the Depositary has been provided with an opinion of counsel to the Company, which opinion shall initially be provided on the signing of the Deposit Agreement, in form and substance satisfactory to the Depositary, to the effect that (i) the granting of such discretionary proxy does not subject the Depositary to any reporting obligations in Japan,(ii) the granting of such proxy will not result in a violation of Japanese law, rule, regulation or permit, (iii) the voting arrangement and proxy as contemplated herein will be given effect under Japanese law, and (iv) the Depositary will not be deemed to be authorized to exercise any discretion when voting it in accordance with the terms of this paragraph Deposit Agreement and in accordance with any other agreements as otherwise agreed in writing between the Company and the Depositary from time to time, prior to such termination shall take effect. In the event a notice of termination of the Deposit Agreement is mailed by the Depositary to Holders of Receipts concurrently with the mailing by the Depositary to Holders of Receipts of the notice of this Amendment, the termination of the Deposit Agreement set forth in such notice shall be effective on the same date that this Amendment is effective (12unless such notice of termination provides for a later date). If 30 days shall have expired after (i) under Japanese law andthe Depositary shall have delivered to the Company a written notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a written notice of the removal of the Depositary, and in either case a successor depositary shall not have been appointed and accepted its appointment as provided herein and the Deposit Agreement, the Depositary will not be may terminate the Deposit Agreement by mailing notice of such termination to the Holders of all Receipts then outstanding at least 15 days prior to the date fixed for such termination. On and after the date of termination of the Deposit Agreement, the Holder will, upon surrender of Holder’s Receipt at the Principal Office of the Depositary, upon the payment of the charges of the Depositary for the surrender of Receipts referred to in Article (2) hereof and in the Deposit Agreement and subject to the conditions and restrictions therein set forth, and upon payment of any liability under Japanese law for losses arising from the exercise applicable taxes or governmental charges, be entitled to delivery, to him or upon his order, of the voting arrangements amount of Deposited Securities represented by such Receipt. If any Receipts shall remain outstanding after the date of termination of the Deposit Agreement, the Registrar thereafter shall discontinue the registration of transfers of Receipts, and the Depositary shall suspend the distribution of dividends to the Holders thereof, and shall not give any further notices or perform any further acts under the Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights or other property as provided in the Deposit Agreement, and shall continue to deliver Deposited Securities, subject to the conditions and restrictions set forth in this paragraph the Deposit Agreement, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts surrendered to the Depositary (12after deducting, or charging, as the case may be, in each case, the charges of the Depositary for the surrender of a Receipt, any expenses for the account of the Holder in accordance with the terms and conditions of the Deposit Agreement and any applicable taxes or governmental charges or assessments). The Company agrees to direct its counsel to inform it Promptly after the date of termination of the Deposit Agreement, the Depositary may, by private or public sale, sell the Deposited Securities then held hereunder and may thereafter hold uninvested the net proceeds of any such changes sale, together with any other cash then held by it hereunder, in Japanese law and an unsegregated account, without liability for interest for the pro rata benefit of the Holders of Receipts whose Receipts have not theretofore been surrendered. After making such sale, the Depositary shall be responsible discharged from all obligations under the Deposit Agreement with respect to the Receipts and the Shares, Deposited Securities and ADSs, except to account for such net proceeds and other cash (after deducting, or charging, as the case may be, in each case, the charges of the Depositary for the surrender of a Receipt, any expenses for the account of the Holder in accordance with the terms and conditions of the Deposit Agreement and any applicable taxes or governmental charges or assessments). To the extent permitted under U.S. and Philippine law, rule and regulation, the Company reserves the right to bid on the Deposited Securities. Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations under the Deposit Agreement except for its failure obligations to so informthe Depositary under the Deposit Agreement.