FRESENIUS MEDICAL CARE AG & CO KGaA AND JPMORGAN CHASE BANK, N.A. As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Representing Ordinary Bearer Shares Dated as of January , 2006
FRESENIUS
MEDICAL CARE AG & CO KGaA
AND
JPMORGAN
CHASE BANK, N.A.
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Deposit
Agreement Representing Ordinary Bearer Shares
Dated
as
of January , 2006
TABLE
OF CONTENTS
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Page
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| PARTIES | 1 | |||
| RECITALS | 1 | |||
| Section 1. | Certain Definitions | |||
|
(a)
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ADR
Register
|
1 | ||
|
(b)
|
ADRs;
Direct Registration ADRs
|
1 | ||
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(c)
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ADS | 1 | |
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(d)
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CSB
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1 | ||
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(e)
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Custodian
|
1 | ||
|
(f)
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Deliver,
execute, issue et al
|
1 | ||
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(g)
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Delivery
Order
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1 | ||
|
(h)
|
Deposited
Securities
|
1 | ||
|
(i)
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Direct
Registration System
|
1 | ||
|
(j)
|
Holder
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1 | ||
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(k)
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Securities
Act of 1933
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2 | |
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(l)
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Securities
Exchange Act of 1934
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2 | ||
|
(m)
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Shares
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2 | ||
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(n)
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Transfer
Office
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2 | ||
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(o)
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Withdrawal
Order
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2 | ||
| Section 2. | ADR | 2 | ||
| Section 3. | Deposit of Shares | 3 | ||
| Section 4. | Issue of ADRs | 3 | ||
| Section 5. | Distributions on Deposited Securities | 4 | ||
| Section 6. | Withdrawal of Deposited Securities | 3 | ||
| Section 7. | Substitution of ADRs | 4 | ||
| Section 8. | Cancellation and Destruction of ADRs | 4 | ||
| Section 9. | The Custodian | 4 | ||
| Section 10. | Co-Registrars and Co-Transfer Agents | 5 | ||
| Section 11. | Lists of Holders | 5 | ||
| Section 12. | Depositary's Agents | 5 | ||
| Section 13. | Successor Depositary | 5 | ||
| Section 14. | Reports | 5 | ||
| Section 15. | Additional Shares | 6 | ||
| Section 16. | Indemnification | 6 | ||
| Section 17. | Notices | 7 | ||
| Section 18. | Miscellaneous | 7 | ||
|
Section
19.
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Consent
to Jurisdiction
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7 | ||
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Section
20.
|
Notification
of Interests
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8 | ||
| TESTIMONIUM | 10 | |||
| SIGNATURES | 10 | |||
-i-
| Page | ||||
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EXHIBIT
A
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| FORM OF FACE OF ADR | A-1 | |||
| Introductory Paragraph | A-1 | |||
| (1) | Issuance of ADRs | A-2 | ||
| (2) | Withdrawal of Deposited Securities | A-2 | ||
| (3) | Transfers of ADRs | A-3 | ||
| (4) | Certain Limitations | A-3 | ||
| (5) | Taxes | A-4 | ||
| (6) | Disclosure of Interests | A-4 | ||
| (7) | Charges of Depositary | A-5 | ||
| (8) | Available Information | A-5 | ||
| (9) | Execution | A-6 | ||
| Signature of Depositary | A-6 | |||
| Address of Depositary's Office | A-6 | |||
| FORM OF REVERSE OF ADR | A-7 | |||
| (10) | Distributions on Deposited Securities | A-7 | ||
| (11) | Record Dates | A-7 | ||
| (12) | Voting of Deposited Securities | A-8 | ||
| (13) | Changes Affecting Deposited Securities | A-8 | ||
| (14) | Exoneration | A-9 | ||
| (15) | Resignation and Removal of Depositary; the Custodian | A-9 | ||
| (16) | Amendment | A-10 | ||
| (17) | Termination | A-10 | ||
|
(18)
|
Appointment
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A-11
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-ii-
DEPOSIT
AGREEMENT dated as of January __, 2006 (the "Deposit Agreement") among
FRESENIUS
MEDICAL CARE AG & CO KGaA and its successors (the "Company"), JPMORGAN CHASE
BANK, N.A., as depositary hereunder (the "Depositary"), and all holders
from
time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited
Shares
(defined below). The Company hereby appoints the Depositary as depositary
for
the Deposited Securities and hereby authorizes and directs the Depositary
to act
in accordance with the terms set forth in this Deposit Agreement. The
parties
hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder. ADRs may
be
either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the
form
of Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of
ADR
shall be binding upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each ADS evidenced by an ADR represents
the right to receive one-third of one Share and a pro rata share in any other
Deposited Securities.
(d)
"CSB"
means
Clearstream Banking AG, the German central securities depositary,
and any successor entity.
(e) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the context
requires) and any additional or substitute Custodian appointed pursuant to
Section 9.
(f)
The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an electronic transfer or transfers in the Direct Registration
System, and, when used with respect to ADRs in physical certificated form,
shall
refer to the physical delivery, execution, issuance, registration, surrender,
transfer or cancellation of certificates representing the ADRs.
(g) "Delivery
Order"
is
defined in Section 3.
(h) "Deposited
Securities"
as of
any time means all Shares at such time deposited under this Deposit Agreement
and any and all other Shares, securities, property and cash at such time
held by
the Depositary or the Custodian in respect or in lieu of such deposited Shares
and other Shares, securities, property and cash.
(i)
"Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company
("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance of a certificate, which ownership
shall
be evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto. For purposes hereof, the Direct Registration System shall
include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary.
(j) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(k) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time to time
amended.
(l) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act of 1934, as from time to time
amended.
(m) "Shares"
mean
the ordinary bearer shares, as amended or redenominated from time to time,
of
the Company and shall include the rights to receive Shares specified in
Paragraph (1) of the form of ADR.
(n) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(o) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at
the discretion of the Depositary in accordance with its customary practices
in
its American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder,
any
applicable law, regulation or usage or to indicate any special limitations
or
restrictions to which any particular ADRs are subject. ADRs may be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the form of ADR to
the
contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
2
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the form of ADR, regardless of whether their ADRs are Direct Registration
ADRs or certificated ADRs.
3.
Deposit
of Shares.
Shares
may be deposited under this Deposit Agreement by delivery thereof to the
Custodian, at the account maintained by the Custodian for such purpose at the
CSB. Shares or evidence of rights to receive Shares may be deposited through
(x)
the electronic transfer of such Shares to the account maintained by the
Custodian for such purpose at the CSB, (y) evidence satisfactory to the
Custodian of irrevocable instructions to cause such Shares to be transferred
to
such account or (z) delivery of certificates representing such Shares. If use
of
the CSB book-entry system in connection with the ADSs is discontinued at any
time for any reason, the Company shall make such other book-entry arrangements
(if any) that it determines, after consultation with the Depositary, are
reasonable. In connection with the deposit of Shares hereunder, the Depositary
or the Custodian may require the following in form satisfactory to it: (a)
a
written order directing the Depositary to issue to, or upon the written order
of, the person or persons designated in such order a Direct Registration ADR
or
ADRs evidencing the number of ADSs representing such deposited Shares (a
"Delivery Order"); (b) proper endorsements or duly executed instruments of
transfer in respect of such deposited Shares; (c) instruments assigning to
the
Custodian or its nominee any distribution on or in respect of such deposited
Shares or indemnity therefor; and (d) proxies entitling the Custodian to vote
such deposited Shares. As soon as practicable after the Custodian receives
Deposited Securities pursuant to any such deposit or pursuant to paragraph
(10)
or (13) of the form of ADR, the Custodian shall present such Deposited
Securities for registration of transfer into the name of the Custodian or its
nominee, to the extent such registration is practicable, at the cost and expense
of the person making such deposit (or for whose benefit such deposit is made)
and shall obtain evidence satisfactory to it of such registration. Shares
deposited hereunder and other Deposited Securities eligible for deposit with
CSB
shall be held by the Custodian at its account at CSB or in such other place
or
places and in such manner as the Depositary shall determine. Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances expressly contemplated in this Deposit Agreement. To the extent
that the provisions of or governing the Shares make delivery of certificates
therefor impracticable, Shares may be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained
by
the Custodian for such purpose with the Company or an accredited intermediary,
such as a bank, acting as a registrar for the Shares, together with delivery
of
the documents, payments and Delivery Order referred to herein to the Custodian
or the Depositary.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary of such
deposit and of the information contained in any related Delivery Order by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall promptly issue at the Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested and evidencing the aggregate ADSs to which such person
is entitled.
3
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its discretion that any distribution
pursuant to paragraph (10) of the form of ADR is not practicable with respect
to
any Holder, the Depositary may make such distribution as it so deems
practicable, including the distribution of foreign currency, securities or
property (or appropriate documents evidencing the right to receive foreign
currency, securities or property) or the retention thereof as Deposited
Securities with respect to such Holder's ADRs (without liability for interest
thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the Depositary may require
proper endorsement in blank of such ADR (or duly executed instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited Securities represented by the ADSs evidenced
by such ADR to be withdrawn and delivered to, or upon the written order of,
any
person designated in such order (a "Withdrawal Order"). Directions from the
Depositary to the Custodian to deliver Deposited Securities shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder, by cable, telex or facsimile transmission. Delivery
of
Deposited Securities may be made by the delivery of certificates (which, if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal Order)
or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account
designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration ADR in exchange
and substitution for any mutilated certificated ADR upon cancellation thereof
or
in lieu of and in substitution for such destroyed, lost or stolen certificated
ADR, unless the Depositary has notice that such ADR has been acquired by a
bona
fide purchaser, upon the Holder thereof filing with the Depositary a request
for
such execution and delivery and a sufficient indemnity bond and satisfying
any
other reasonable requirements imposed by the Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy ADRs in certificated form so cancelled
in
accordance with its customary practices. The Depositary is authorized to destroy
ADRs in certificated form so cancelled in accordance with its customary
practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time appoint one or more agents to act for it as Custodian hereunder. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound by the applicable terms hereof. Any Custodian may resign from its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon the instruction of the Depositary, all Deposited Securities held
by it to a Custodian continuing to act.
4
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars to register ADRs and
transfers, combinations and split-ups of ADRs and to countersign ADRs in
accordance with the terms of any such appointment and (ii) co-transfer agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer offices in addition to the Transfer Office on behalf of
the
Depositary. Each co-registrar or co-transfer agent (other than JPMorgan Chase
Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
of
this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and
its agents and the ADR Register, take copies thereof and require the Depositary
and its agents to supply copies of such portions of such records as the Company
may request. The Depositary or its agent shall furnish to the Company promptly
upon the written request of the Company, a list of the names, addresses and
holdings of ADSs by all Holders as of a date within seven days of the
Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement through
any
agent appointed by it, provided that the Depositary shall notify the Company
of
such appointment and shall remain responsible for the performance of such
obligations as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by 45 days prior
written notice of its election so to do delivered to the Company. The Depositary
may at any time be removed by the Company by 45 days prior written notice of
such removal. Notwithstanding anything to the contrary contained herein, in
case
at any time the Depositary acting hereunder shall resign or be removed, it
shall
continue to act as Depositary for the purpose of terminating this Deposit
Agreement pursuant to paragraph (17) of the form of ADR. Any bank or trust
company into or with which the Depositary may be merged or consolidated, or
to
which the Depositary shall transfer substantially all its American depositary
receipt business, shall be the successor of the Depositary without the execution
or filing of any document or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or, on a non-confidential basis to any
securities regulatory authority or stock exchange, by publication or otherwise,
including, without limitation, any annual reports, notice of shareholder
meetings, shareholder circulars or other materials made available to
shareholders of the Company, the Company shall transmit to the Depositary a
copy
thereof in English or with an English translation or summary. The Company has
delivered to the Depositary, the Custodian and any Transfer Office, a copy
of
all provisions of or governing the Shares and any other Deposited Securities
issued by the Company or any affiliate of the Company and, promptly upon any
change thereto, the Company shall deliver to the Depositary, the Custodian
and
any Transfer Office, a copy (in English or with an English translation) of
such
provisions as so changed. The Depositary and its agents may rely upon the
Company's delivery thereof for all purposes of this Deposit
Agreement.
5
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with written instructions of the Company not to accept for deposit hereunder
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 securities laws in the United
States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary and
its
agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs, as
the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary, or (ii) by the Company or
any
of its directors, employees, agents or affiliates.
The
indemnities set forth in the preceding paragraph shall apply to any liability
or
expense which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of ADSs, except to the
extent any such liability or expense arises out of (i) information relating
to
the Depositary or its agents (other than the Company), as applicable, furnished
in writing by the Depositary and not changed or altered by the Company expressly
for use in any of the foregoing documents or (ii) if such information is
provided, the failure to state a material fact necessary to make the information
provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the other for any indirect, special, punitive or consequential
damages (collectively "Special Damages") except (i) to the extent such Special
Damages arise from the gross negligence or willful misconduct of the party
from
whom indemnification is sought or (ii) to the extent Special Damages arise
from
or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such Special
Damages arise out of the gross negligence or willful misconduct of the party
seeking indemnification hereunder
6
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement and the succession or substitution of any indemnified
person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice to the Depositary or the Company shall be deemed given when
first
received by it at the address or facsimile transmission number set forth in
(a)
or (b), respectively, or at such other address or facsimile transmission number
as either may specify to the other by written notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
Four
Xxx Xxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
|
|
(b)
|
Fresenius
Medical Care AG & Co. KGaA
Xxxx-Xxxxxx-Xxxxxxx
0
00000
Xxx Xxxxxxx v.D.H
Germany
Attention:
Fax:
.
|
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall not give
any
legal or equitable right, remedy or claim whatsoever to any other person.
The
Holders and owners of ADRs from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the provisions hereof and the ADRs.
If
any such provision is invalid, illegal or unenforceable in any respect, the
remaining provisions shall in no way be affected thereby. This Deposit Agreement
may be executed in any number of counterparts, each of which shall be deemed
an
original and all of which shall constitute one instrument.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding against
the
Company brought by the Depositary or any Holder, arising out of or based upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in Manhattan, New York, and irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
has appointed ______________________ New York, New York ______, as its
authorized agent (the "Authorized Agent") upon which process may be served
in
any such action arising out of or based on this Deposit Agreement or the
transactions contemplated hereby which may be instituted in any state or federal
court in Manhattan, New York by the Depositary or any Holder, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. The Company represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and the Company agrees
to
take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company. If, for any reason, the
Authorized Agent named above or its successor shall no longer serve as agent
of
the Company to receive service of process in New York, the Company shall
promptly appoint a successor acceptable to the Depositary, so as to serve and
will promptly advise the Depositary thereof. 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. Notwithstanding the foregoing, any action based
on this Agreement may be instituted by the Depositary or any Holder in any
competent court in the Federal Republic of Germany.
7
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect
to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
20.
Notification
of Interests.
In
order to enable the Depositary to comply with any reporting obligations it
might
have pursuant to applicable provisions of German law and the Company's Articles
of Association regarding the notification of such person's interest in Shares,
whichprovisions at the date of the Deposit Agreement include Sections 21 and
22
of the Securities Trading Act (Wertpapierhandelsgesetz), the Company agrees
to
provide the Depositary with a written notice promptly at each such time the
total number of the outstanding Shares or voting rights change. Promptly after
receipt thereof, the Depositary agrees to notify the Company of the number
of
Shares held by it hereunder. To the extent that the number of Shares notified
to
the Company by the Depositary in accordance with (ii) would require the
Depositary to file or submit a report and/or notice, or to the extent a report
and/or notice has been previously filed or submitted, a further report and/or
notice, in each case under German law and/or the Company's Articles of
Association, the Company shall promptly provide the Depositary with the form
of
report and/or notice required to be submitted and/or filed, along with
instructions as to how, when and where to submit each such report and/or
notice.
8
IN
WITNESS WHEREOF, FRESENIUS
MEDICAL CARE AG & CO KGaA and
JPMORGAN CHASE BANK, N.A. have duly executed this Deposit Agreement as of the
day and year first above set forth and all holders of ADRs shall become parties
hereto upon acceptance by them of ADRs issued in accordance with the terms
hereof.
|
FRESENIUS
MEDICAL CARE AG & CO. KgaA,
a partnership limited by shares to be created
upon the transformation of legal form of
Fresenius Medical Care AG
|
||
|
|
||
| |
By: |
FRESENIUS
MEDICAL CARE MANAGEMENT
AG, general partner |
| By: | ||
|
Name:
Title:
|
Xxxxxxxx
Xxxxx
Member of the Management
Board
|
|
|
|
||
| |
JPMORGAN
CHASE BANK, N.A. |
|
| By: | ||
|
Name:
Title:
|
|
|
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (6) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
| ______ |
No.
of ADSs:
|
||
| Number | _________________ | ||
|
Each
ADS represents
One-Third
of One Share
CUSIP:
|
|||
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
BEARER SHARES
of
FRESENIUS
MEDICAL CARE AG & CO KGaA
(Formed
under the laws of the Federal Republic of Germany)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America, as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing
one-third of one ordinary bearer share (including the rights to receive Shares
described in paragraph (1), "Shares" and, together with any other securities,
cash or property from time to time held by the Depositary in respect or in
lieu
of deposited Shares, the "Deposited Securities"), of FRESENIUS
MEDICAL CARE AG & CO KGaA,
a
partnership limited by shares formed under the laws of the Federal Republic
of
Germany (the "Company") upon the transformation of the legal form of Fresenius
Medical Care AG, deposited under the Deposit Agreement dated as of January
__,
2006 (as amended from time to time, the "Deposit Agreement") among the Company,
the Depositary and all Holders from time to time of American Depositary Receipts
issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the provisions
set
forth on the reverse hereof) shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements entered into
and
to be performed solely within New York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) other rights to receive
Shares (until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or such other collateral as the Depositary
deems appropriate held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient
of
Pre-released ADRs agrees in writing with the Depositary that such recipient
(a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary
and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not
more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs),
provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. Shares or evidence of rights to receive Shares may be deposited through
(x) the electronic transfer of such Shares to the account maintained by the
Custodian for such purpose at the CSB, (y) evidence satisfactory to the
Custodian of irrevocable instructions to cause such Shares to be transferred
to
such account or (z) delivery of certificates representing such Shares. At the
request, risk and expense of the person depositing Shares, the Depositary may
accept deposits for forwarding to the Custodian and may deliver ADRs at a place
other than its office. Every person and/or entity depositing Shares under the
Deposit Agreement represents and warrants that such Shares are validly issued
and outstanding, fully paid, nonassessable and free of pre-emptive rights,
that
the person and/or entity making such deposit is duly authorized so to do and
that such Shares (A) are not "restricted securities" as such term is defined
in
Rule 144 under the Securities Act of 1933 unless at the time of deposit they
may
be freely transferred in accordance with Rule 144(k) and may otherwise be
offered and sold freely in the United States or (B) have been registered under
the Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of ADRs. The Depositary will not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such
Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5)
and to
the provisions of or governing Deposited Securities (including the
Company=s
Articles of Association (Satzung)
as
amended from time to time, or applicable law),
upon
surrender of (i) a certificated ADR in form satisfactory to the Depositary
at
the Transfer Office or (ii) proper instructions and documentation in the case
of
a Direct Registration ADR, in either case accompanied by such instruments of
transfer as the Depositary may reasonably require, the Holder hereof is entitled
to delivery, as promptly as practicable, (i) to an account designated by such
Holder with the CSB or an institution that maintains accounts with the CSB,
of
the Shares and the other Deposited Securities that are eligible for deposit
with
CSB and (ii) at the office of the Custodian, of any Deposited Securities that
are not eligible for deposit with CSB, in each case at the time underlying
this
ADR. At the request, risk and expense of the Holder hereof, the Depositary
may
deliver Deposited Securities (other than Shares) at the Depositary's Office
referred to below or at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the beneficial ownership of the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, is transferable by delivery with the same effect as
in
the case of negotiable instruments under the laws of the State of New York;
provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may
be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be required
by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company so the Company may close
its
books or pay dividends in an orderly fashion or facilitate orderly voting of
the
Deposited Securities. At the request of a Holder, the Depositary shall, for
the
purpose of substituting a certificated ADR with a Direct Registration ADR,
or
vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR,
as the case may be, for any authorized number of ADSs requested, evidencing
the
same aggregate number of ADSs as those evidenced by the certificated ADR or
Direct Registration ADR, as the case may be, substituted.
A-3
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity of any signatory
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations, provisions of or governing Deposited Securities and terms
of
the Deposit Agreement and this ADR, as it may deem necessary or proper; and
(c)
compliance with such regulations as the Depositary may establish consistent
with
the Deposit Agreement. The Depositary shall forward to the Company or its agent
copies of such information from its records as the Company shall reasonably
request to enable the Company or its agents to file necessary reports with
governmental authorities and agencies. The issuance of ADRs, the acceptance
of
deposits of Shares, the registration, registration of transfer, split-up or
combination of ADRs or, subject to the last sentence of paragraph (2), the
withdrawal of Deposited Securities may be suspended, generally or in particular
instances, when the ADR Register, the CSB or any register for Deposited
Securities is closed or when any such action is deemed advisable by the
Depositary.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. The
Depositary shall forward to the Company or its agent copies of such information
from the ADR Register as the Company shall reasonably request to enable the
Company or its agents to file necessary reports with governmental authorities
and agencies. If
the
Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax
that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto. Each Holder of an ADR or an interest therein
agrees to indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and affiliates against, and hold each
of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit
obtained.
A-4
(6)
Disclosure
of Interests.
Each
Holder of an ADR and all persons holding ADRs or beneficial interests in ADRs
agree 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 Deposit Agreement include Sections
21 and 22 of the Securities Trading Act (Wertpapierhandelsgesetz).
At the
date of the Deposit Agreement, (i) the statutory notification obligations of
the
Securities Trading Act apply to anyone whose holding, either directly or by
way
of imputation pursuant to the 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 beneficial owner of ADSs 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 beneficial owner of ADSs has an interest. In
connection therewith, the Company reserves the right to instruct Holders to
deliver their ADSs for cancellation and withdrawal of the Deposited Securities
so as to permit the Company to deal directly with the Holder thereof as a holder
of Shares. The Depositary agrees to cooperate with the Company in its efforts
to
inform Holders of the Company_s
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk, liability or expense on the part
of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell
(by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred
by the Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs 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 ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable (i)
to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed,
a fee
of $.02 or less per ADS (or portion thereof) for any Cash distribution made
pursuant to the Deposit Agreement, (ii) to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed,
a fee
of $1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution
and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (7) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iv)
to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed, a fee of US$0.02 per ADS (or portion thereof) per year for
the
services performed by the Depositary in administering the ADRs (which
fee shall be assessed against Holders as of the record date or dates set by
the
Depositary not
more
than once each calendar year and
shall
be payable at the sole discretion of the Depositary by billing such Holders
or
by deducting such charge from one or more cash dividends or other cash
distributions),
and (v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary=s
agents,
including, without limitation, the custodian, or the agents of the
Depositary=s
agents
in connection with the servicing of the Shares or other Deposited Securities
(which charge shall be assessed against Holders as of the record date or dates
set by the depositary and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one or
more
cash dividends or other cash distributions). These charges may be changed in
the
manner indicated in paragraph (16).
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and accordingly files certain reports with
the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at 000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
A-6
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| |
|
|
| Date: | By: | |
|
Authorized Officer |
||
| Title | ||
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute to each Holder entitled thereto on the record date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). The
Company shall have no obligation to register any Rights or any such securities
under the Securities Act of 1933. (d)
Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional cents will be withheld without liability and dealt with by
the
Depositary in accordance with its then current practices.
A-8
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as for the determination of the Holders who shall be entitled
to receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so entitled
or
obligated.
(12)
Voting
of Deposited Securities.
As
promptly as practicable after receipt from the Company of notice of any meeting
or solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall, if requested in writing by the Company and
subject to applicable law and the Company's Articles of Association, deliver
to
Holders a notice (a) containing such information as is contained in such notice
and any solicitation materials, (b) stating that each Holder on the record
date
set by the Depositary therefor will be entitled to instruct the Depositary
as to
the exercise of the voting rights, if any, pertaining to the whole number of
Deposited Securities underlying such Holder's ADRs, (c) specifying how and
when
such instructions may be given, including an express indication that, if no
specific voting instruction is received prior to the record date set by the
Depositary therefor, then the Holders shall in each case be deemed to have
instructed the Depositary to give a proxy to _________, which will act as a
proxy bank in accordance with Sections 128 and 135 of the German Stock
Corporation Act (Aktiengesetz) (the "Proxy Bank"), to vote in accordance with
its recommendation with regard to voting of the Shares pursuant to Section
128
(2) of the German Stock Corporation Act (the "Recommendation") as to any matter
concerning which the notice from the Company indicates that a vote is to be
taken by holders of Shares and (d) containing any Recommendation. Each Holder
who desires to exercise or to give instructions for the exercise of voting
rights shall execute and return to the Depositary on or before the date
established by the Depositary for such purpose, a document provided by the
Depositary that instructs the Depositary as to how the number of Shares or
other
Deposited Securities represented by such Holder's ADRs are to be voted. 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 applicable law,
the
Company's Articles of Association and the provisions of or governing Deposited
Securities, to vote or cause to be voted the Deposited Securities underlying
such Holder's ADRs in accordance with such instructions. The Depositary shall
not vote or attempt to exercise the right to vote that attaches to the Deposited
Securities, other than in accordance with instructions received from the Holders
(or deemed to have been so received as set forth in the next paragraph), as
of
such record date.
Subject
to the following paragraphs of this Section 12, if no specific voting
instructions are received by the Depositary from any Holder (to whom a notice
was sent by the Depositary) with respect to the Deposited Securities, such
Holder shall be deemed, and the Depositary shall deem such Holder, to have
instructed the Depositary to give a proxy to the Proxy Bank to vote such
Deposited Securities in accordance with Section 135 of the German Stock
Corporation Act
provided
that no
such deemed 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.
A-9
Notwithstanding
anything to the contrary contained herein, in the event that the Proxy Bank
shall fail or decline to supply the Recommendation to the Depositary at least
thirty (30) calendar days prior to any meeting of holders of Shares or other
Deposited Securities with respect to which the Depositary has received notice
from the Company, the Depositary shall deliver the above-referenced notice
(which shall not contain the Recommendation or the indication concerning the
proxy to be given to the Proxy Bank) to the Holders as hereinabove provided,
and, thereafter, in any case in which no specific voting instructions are
received by the Depositary from a Holder on or before the record date with
respect to the Deposited Securities, no votes shall be cast at such meeting
with
respect to such Deposited Securities.
Notwithstanding
anything to the contrary contained herein, the Depositary shall not be obligated
to give any such deemed instruction with respect to any vote unless and until
the Depositary has been provided with an opinion of counsel to the Company,
in
form and substance satisfactory to the Depositary, to the effect that (i)
neither the granting of such deemed instruction nor the discretionary proxy
itself shall subject the Depositary to any reporting obligations in the Federal
Republic of Germany, (ii) the granting of such proxy will not result in a
violation of German law, rule, regulation or permit, (iii) the voting
arrangement and proxy as contemplated herein will be given effect under German
law, rule and regulation (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 German law, rule or regulation and, (v) the Depositary
will
not be subject to any liability under German law, rule or regulation for losses
arising from the exercise of the voting arrangements set forth in this paragraph
(12).
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable such Holder to return
any
voting instructions to the Depositary in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, to sell by public or private sale any property received
in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the Company, and to the extent the Depositary does not so amend this
ADR or make a distribution to Holders to reflect any of the foregoing, or the
net proceeds thereof, whatever cash, securities or property results from any
of
the foregoing shall constitute Deposited Securities and each ADS evidenced
by
this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
A-10
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule or regulation of the United
States, Federal Republic of Germany or any other country, or of any governmental
or regulatory authority or any securities exchange or market or automated
quotation system, the provisions of or governing any Deposited Securities,
any
present or future provision of the Company's charter, any act of God, war,
terrorism or other circumstance beyond its control shall prevent, delay or
subject to any civil or criminal penalty any act which the Deposit Agreement
or
this ADR provides shall be done or performed by it or them (including, without
limitation, voting pursuant to paragraph (12) hereof), or (ii) by reason of
any
exercise or failure to exercise any discretion given it in the Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to the
extent they are specifically set forth in this ADR and the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary and
its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR;
(d)
in the case of the Company and its agents hereunder be under no obligation
to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or this ADR, which in its opinion may involve it
in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required; or (e) not be liable for any action or inaction by
it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
believed by it to be competent to give such advice or information. The
Depositary, the Company and their respective agents may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented
by
the proper party or parties. The Depositary and its agents will not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the Depositary and its agents may fully respond to any and all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise
related hereto to the extent such information is requested or required by or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or other
regulators. The Company has agreed to indemnify the Depositary and its agents
under certain circumstances and the Depositary has agreed to indemnify the
Company under certain circumstances. Neither the Company nor the Depositary
nor
any of their respective agents shall be liable to Holders or beneficial owners
of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by 45 days prior written notice of its
election to do so delivered to the Company, or be removed as Depositary by
the
Company by 45 days prior written notice of such removal delivered to the
Depositary. The Depositary may appoint substitute or additional Custodians
and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
A-11
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body or regulatory
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the ADR at any time in accordance with such changed laws, rules
or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any
ADSs
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to
and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to
act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement and the applicable ADR(s), the taking of such actions
to
be the conclusive determinant of the necessity and appropriateness
thereof.
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