AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 dated as of
October 26, 2009 (the "Amendment") to the Deposit Agreement dated as of November
3, 2000 (as amended from time to time, the "Deposit Agreement")
among Allianz SE, a European Company (or Societas Europaea) incorporated in the
Federal Republic of Germany and organized under the laws of the Federal Republic
of Germany and the European Union, and its successors (the "Company"), JPMorgan
Chase Bank, N.A., as depositary (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Receipts ("ADRs")
issued thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has filed a Form 25 with the U.S. Securities and Exchange Commission
(the "Commission") in order to seek to terminate the listing of its ADRs on the
New York Stock Exchange and intends to file a Form 15F with the Commission in
order to terminate the registration of its securities under the United States
Securities and Exchange Act of 1934, as amended (“Securities Exchange Act”), and
its obligation to file with or submit to the Commission reports under Sections
13(a) and 15(d) of the Securities Exchange Act.
WHEREAS,
pursuant to paragraph (16) of the Form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend certain terms
of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
1
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT AND FORM OF ADR
SECTION 2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION 2.02. All
references in the Deposit Agreement and Form of ADR to the Company shall be
references to Allianz SE, a European Company (or Societas Europaea) incorporated
in the Federal Republic of Germany and organized under the laws of Germany and
the European Union.
SECTION 2.03. All references in the
Deposit Agreement and Form of ADR to the Depositary shall be references to
JPMorgan Chase Bank, N.A.
SECTION 2.04. All
references in the Deposit Agreement and Form of ADR to the Custodian shall be
references to BNP Paribas and any successors thereto appointed under the Deposit
Agreement.
SECTION 2.05. All
references in the Deposit Agreement and Form of ADR to the New York Stock
Exchange are deleted and shall be of no further effect.
SECTION 2.06. The
penultimate and ultimate sentences of paragraph (10) of the Form of
ADR are amended to read as follows:
2
Upon
effectiveness of the termination of the Company’s reporting requirements under
the Securities Exchange Act, the Company shall publish information in English
required to maintain the exemption from registration under Rule 12g3-2(b) under
the Securities Exchange Act (the “Rule 12g3-2(b) exemption”) on its Internet Web
site (xxx.xxxxxxx.xxx.) or through an electronic information delivery system
generally available to the public in its primary trading market and shall comply
with the other requirements of the Rule 12g3-2(b) exemption. The Company
represents that, as of the effectiveness of the termination of the Company's
reporting requirements under the Securities Exchange Act, it shall be exempt
from the requirement to register a class of equity securities under Section
12(g) of the Securities Exchange Act pursuant to the Rule 12g3-2(b) exemption.
The Company agrees to promptly notify the Depositary and all Holders in the
event that the Company ceases to qualify for the Rule 12g3-2(b) exemption. The
Depositary does not assume any duty to determine if the Company is complying
with the current requirements of the Rule 12g3-2(b) exemption or to take any
action if the Company is not complying with those requirements.
SECTION 2.07. The
Form of ADR, reflecting the amendments set forth herein, is amended and restated
to read as set forth as Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
SECTION 3.01. Representations
and Warranties of the Company. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 as executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and any
other document furnished hereunder or thereunder in The Republic of Germany,
neither of such agreements need to be filed or recorded with any court or other
authority in The Republic of Germany, nor does any stamp or similar tax need to
be paid in The Republic of Germany on or in respect of such agreements;
and
(c) All
of the information provided to the Depositary by the Company in connection with
this Amendment is true, accurate and correct.
3
SECTION 3.02. Representations
and Warranties of the Depositary. The Depositary represents
and warrants to, and agrees with, the Company that this Amendment, when executed
and delivered by the Depositary, and the Deposit Agreement and the Form F-6 as
executed and delivered by the Depositary in connection herewith, will be and
have been, respectively, duly and validly authorized, executed and delivered by
the Depositary, and constitute the legal, valid and binding obligations of the
Depositary, enforceable against the Depositary in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.
ARTICLE
IV
MISCELLANEOUS
SECTION 4.01. Effective
Date. This Amendment is dated as of the date set forth above
and shall be effective as of the date hereof.
SECTION 4.02. Indemnification. The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 12 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 4.03. Governing
Law; Jurisdiction. The Deposit
Agreement, the Amendment and the ADRs as amended hereby shall be governed by and
construed in accordance with the laws of the State of New York. Any
dispute, legal suit, action or proceeding arising out of or based upon the
Deposit Agreement (as amended by the Amendment) or the transactions contemplated
thereby shall be submitted to the exclusive jurisdiction of the Courts of New
York, New York.
4
SECTION 4.04. Outstanding
ADRs. ADRs issued prior or subsequent to the date hereof,
which do not reflect the changes to the form of ADR effected hereby, do not need
to be called in for exchange and may remain outstanding until such time as the
Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and
all actions deemed necessary to effect the foregoing.
5
IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and all
Holders shall become parties hereto by holding ADSs as of the Effective
Date.
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ALLIANZ
SE
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| By: | |||
| Name: |
Xx. Xxxx Xxxxxxxxxx
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| Title: |
Member of the Management Board
|
||
| By: | |||
| Name: |
Xxxxxxx Xxxxxxxxx
|
||
| Title: |
Head of Group Treasury & Corporate
|
| JPMORGAN CHASE BANK, N.A. | |||
| By: | |||
| Name: |
|
||
| Title: |
|
||
6
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT TO 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 (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
|
____________
Number
|
No.
of ADSs:
___________________
Each
ADS represents
One-Tenth
of One Share
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
ALLIANZ
SE
(Incorporated
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, as depositary hereunder (the "Depositary"), hereby
certifies that ____________ is the registered owner (a "Holder") of _____
American Depositary Shares ("ADSs"), each (subject
to Paragraphs (11) and (14)) representing one-tenth of one ordinary share
including, subject to Paragraph (5) below, rights to receive Shares (together
"Shares" and,
together with any additional securities or cash from time to time held by the
Depositary or the Custodian referred to below in respect or in lieu thereof, the
"Deposited
Securities"), of ALLIANZ SE, a corporation incorporated under the laws of
the Federal Republic of Germany (the "Company"), deposited
with a custodian appointed in accordance with the Deposit
Agreement (hereinafter defined) (subject to Section 7 of the
Deposit Agreement , the "Custodian"). This ADR
is issued pursuant to the Deposit Agreement dated as of November 3, 2000 (as
amended from time to time, the "Deposit Agreement")
among the Company, the Depositary and all Holders and Beneficial Owners from
time to time of American Depositary Receipts issued thereunder ("ADRs"), each of whom
by accepting an ADR agrees to become a party thereto and to be bound by all of
the terms and conditions thereof and hereof. Copies of the Deposit
Agreement are on file at the Depositary's Office referred to below and at the
office of the Custodian. 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. The terms and conditions of the
Deposit Agreement are hereby incorporated by reference.
A-1
(1) Withdrawal of Deposited
Securities. Subject to Paragraphs (4), (7) and (9), upon
surrender at the Depositary’s Office referred to below of (i) a certificated ADR
in form satisfactory to the Depositary 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 require, the
Holder hereof is entitled to delivery, as promptly as practicable, (i) to an
account designated by such Holder with Clearstream Banking AG ("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.
(2) Register. The
Depositary shall keep, at the office of the Depositary in The City of New York
at which at any particular time its depositary receipt business is administered,
which at the date of the Deposit Agreement is 4 Xxx Xxxx Xxxxx, , Xxx Xxxx, Xxx
Xxxx 00000 (the "Depositary's
Office"), (a) a register (the "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 Register
includes the Direct Registration System. The Register shall be established and
maintained by the Depositary for registration of such ADRs in accordance with
any applicable law, regulation or, to the extent applicable, any applicable rule
or regulation of any other securities exchange in the United States or market
therein upon which the ADSs may be listed or traded The Depositary
may close the Register at any time or from time to time when reasonably deemed
expedient by it after consultation with the Company if practicable in the case
of a closure outside of the ordinary course of business, or when reasonably
requested by the Company.
(3) Title to ADRs;
Validity. Title to this ADR, when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument under the laws of 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 Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized signatory of the Depositary; provided, however, that, if a
co-registrar for ADRs has been appointed, such signature may be facsimile if
such ADR is countersigned by the manual or facsimile signature of a duly
authorized signatory of such co-registrar and dated by such signatory.
Notwithstanding anything herein to the contrary, insofar as Holders are
concerned, the Company will, for all purposes, treat the Depositary, in its
capacity as such, as the legal owner of all Deposited Securities, except as
required by applicable law. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement 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 this Deposit Agreement,
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 this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
A-2
(4) Certain
Limitations. As a condition precedent to the issue or
registration of any ADR (including upon a transfer, split-up or combination),
any distribution in respect thereof or the withdrawal of any Deposited
Securities, 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 and (ii) any transfer or registration
fees charged by third parties for the transfer of any Deposited Securities, (b)
the production of (i) proof satisfactory to it of the identity and genuineness
of any signature and (ii) such other information as it may deem necessary or
proper consistent with the Deposit Agreement; and (c) compliance with such
regulations as the Depositary may establish consistent with the Deposit
Agreement. From time to time, the Company, the Depositary or the
Custodian may also require such information as it may deem necessary or proper
consistent with the Deposit Agreement. The Depositary shall notify
the Company of any procedures established pursuant to clauses (b) or (c)
above. The issuance of ADRs, the acceptance of deposits of Shares,
the registration of transfers of ADRs or the withdrawal of Deposited Securities
may be suspended, generally or in particular instances, when the Register or CSB
is closed or when any such action is reasonably deemed expedient by the
Depositary or the Company. Registrations of transfers of ADRs and
withdrawals of Deposited Securities shall also be suspended when requested by
the Company, including for the purpose of facilitating orderly voting of the
Deposited Securities. 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 U.S.
Securities Act of 1933, as amended (the "Securities Act") and
no amendment shall impair such requirements.
(5) Pre-release. Unless
requested in writing by the Company to cease doing so at least two business days
in advance of the proposed deposit, the Depositary may issue ADRs pursuant to
Pre-release transactions only if (i) such Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of the Holders (not including any
earnings thereon) until such Shares are deposited (but such collateral shall not
constitute "Deposited
Securities"), (ii) each recipient of Pre-released ADRs represents and
agrees in writing with the Depositary that such recipient or its customer (a)
beneficially owns such Shares, (b) transfers all beneficial right, title and
interest therein to the Depositary for the benefit of the Holders, (c) will hold
such Shares in trust for the account of the Depositary, (d) will deliver such
Shares to the Custodian as soon as practicable and promptly but in no event more
than five business days after demand therefor, and (e) will not take any action
with respect to such Shares that is inconsistent with the Depositary’s transfer
of the beneficial ownership thereof and (iii) all Pre-released ADRs evidence not
more than 20% 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 compensation for the issuance of ADRs in Pre-release transactions,
including, without limitation earnings on collateral for Pre-released ADRs and
its charges for issuance thereof. The Depositary may also set dollar limits with
respect to Pre-releases to be entered into with any particular person to whom a
Pre-release was made on a case by case basis as it deems
appropriate.
(6) Representations and
Warranties. Every person depositing Shares under the Deposit
Agreement is deemed to represent and warrant that such Shares are validly issued
and outstanding, fully paid, nonassessable and were not acquired in violation of
any pre-emptive rights, that the person making such deposit is duly authorized
to do so and that such Shares (A) are not "restricted securities" as such term
is defined in Rule 144 under the Securities Act and may be offered or sold in
the United States in transactions that are exempt from registration under the
Securities Act or (B) have been registered under the Securities
Act. Such representations and warranties shall survive the deposit of
Shares and the issuance and cancellation of this ADR. . If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares and in their sole and absolute discretion, to take any and all actions
necessary to correct the consequences thereof, whether or not the person who
deposited the Shares is at the time of such action the Holder or a Beneficial
Owner of the ADSs represented by such Shares. Neither the Depositary
nor the Company shall have any obligation to perform any due diligence with
respect of the veracity of any representation or deemed representation made
hereunder.
A-3
(7) 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 ADSs evidenced by this
ADR, any Deposited Securities underlying this ADR or any distribution on any of
the foregoing, such tax or other governmental charge shall be paid by
the Holder hereof to the Depositary. The Depositary may refuse to
effect any registration of this ADR or any withdrawal of the underlying
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 all or any part 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 shall remain liable for any
deficiency. Upon any such sale, the Depositary shall, if appropriate,
reduce the number of ADSs evidenced hereby to reflect any such sale and shall
distribute the net proceeds of any such sale or the balance of any such property
after deduction of such tax or other governmental charge to the Holder
hereof. Holders and Beneficial Owners may be required to show proof
of taxpayer status or residence, or provide other information upon request by
the Company, the Depositary or the Custodian in order to determine any
applicable tax or other governmental charge payable hereunder or in connection
herewith.
(8) Disclosure of
Interests. Each Beneficial Owner agrees to comply with all
applicable provisions of German and other applicable laws and the Company's
Articles of Association and the rules and requirements of any securities
exchange on which the Deposited Securities or the ADSs are traded, to the extent
applicable to such Beneficial Owner, 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, 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 3%,
5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% or, after having reached or exceeded any
such threshold, falls below that threshold. 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 Beneficial Owner has
an interest. All Holders and Beneficial Owners agree to comply with all such
disclosure requirements and ownership limitations and to cooperate with the
Depositary in the Depositary's compliance with any Company instructions in
respect thereof, and the Depositary shall use its best efforts to comply, to the
extent practicable, with such Company instructions.
(9) Charges of
Depositary. The Depositary may charge each person to whom ADRs
are issued against deposits of Shares, including deposits in respect of Share
Distributions, Rights and other Distributions (as such terms are defined in
Paragraph (11)), and each person surrendering ADRs for withdrawal of
Deposited Securities, up to U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Company will pay
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) any transfer or registration fees charged by third parties for transfer of
any Deposited Securities in connection with the deposit or withdrawal of
Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities) and (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). These charges may be changed in the manner
indicated in Paragraph (16).
A-4
(10) 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 Depositary’s Office and the
office of the Custodian. The Depositary will mail copies of such communications
(or English translations or summaries thereof) to Holders when furnished by the
Company. Upon effectiveness of the termination of the Company’s reporting
requirements under the Securities Exchange Act, the Company shall publish
information in English required to maintain the exemption from registration
under Rule 12g3-2(b) under the Securities Exchange Act (the “Rule 12g3-2(b)
exemption”) on its Internet Web site (xxx.xxxxxxx.xxx.) or through an electronic
information delivery system generally available to the public in its primary
trading market and shall comply with the other requirements of the Rule
12g3-2(b) exemption. The Company represents that, as of the effectiveness of the
termination of the Company's reporting requirements under the Securities
Exchange Act, it shall be exempt from the requirement to register a class of
equity securities under Section 12(g) of the Securities Exchange Act pursuant to
the Rule 12g3-2(b) exemption. The Company agrees to promptly notify the
Depositary and all Holders in the event that the Company ceases to qualify for
the Rule 12g3-2(b) exemption. The Depositary does not assume any duty to
determine if the Company is complying with the current requirements of the Rule
12g3-2(b) exemption or to take any action if the Company is not complying with
those requirements.
| Dated: | JPMORGAN CHASE BANK, N.A., Depositary | ||
| By | |||
| Authorized Signatory | |||
The
Depositary's Office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-5
[FORM OF
REVERSE OF RECEIPT]
(11) Distributions on Deposited
Securities. Upon receipt by the Depositary or the Custodian of
any distribution on Deposited Securities, and subject to Section 6 of the
Deposit Agreement and to the Paragraphs (4), (7) and (9) hereof, the Depositary
shall as promptly as practicable distribute by mail to each Holder entitled
thereto on the record date set by the Depositary therefor, in proportion to the
number of Deposited Securities (on which the following distributions are
received by the Custodian) underlying 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 (11) ("Cash"), on an
averaged or other practicable basis, subject to appropriate adjustments for (i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's expenses in (1) converting any foreign currency into U.S.
dollars, (2) making any sale by public or private means in any commercially
reasonable manner, (3) 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, and (4)
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. Only whole U.S. dollars and cents will be
distributed (any fractional cents being withheld without liability for interest
and added to future Cash distributions).
(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) To the
extent the Company so instructs and timely furnishes to the Depositary evidence
(the Company having no obligation to so furnish such evidence) satisfactory to
the Depositary that the Depositary may lawfully distribute the same, warrants or
other instruments 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"), or (ii) to
the extent the Company does not furnish such evidence and/or so instructs the
Depositary and sales of Rights are practicable as determined by the Depositary
after consultation with the Company (which sales shall be effected as promptly
as practicable and, to the extent practicable, on the principal German stock
exchange on which the Rights are traded), any U.S. dollars available to the
Depositary constituting the net proceeds of sales of Rights, as in the case of
Cash, or (iii) failing either (i) or (ii), nothing (and any Rights may
lapse).
(d) Other
Distributions. (i) Securities 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, after
consultation with the Company, lawful, equitable and practicable, or (ii) to the
extent the Depositary deems, after consultation with the Company, a distribution
of such securities not to be lawful, equitable or practicable, any U.S. dollars
available to the Depositary constituting the net proceeds of the sale of Other
Distributions, as in the case of Cash.
To the
extent that the Depositary determines, after consultation with the Company, that
any distribution is not lawful or practicable with respect to any Holder, the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities), or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment thereof).
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Notwithstanding
anything herein to the contrary, the Company shall have no obligation to
either (i) register any ADSs, Shares, Rights or other securities described in
this Paragraph (11) under the Securities Act or (ii) take other actions to
permit the distribution of such ADSs, Shares, Rights or other securities in
accordance with applicable U.S. securities laws.
(12) Record
Dates. The Depositary shall, after consultation with the
Company to the extent practicable, fix a record date (which shall be
as near as practicable to any corresponding record date set by the Company with
respect to the Shares) 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 Holders of record on the
close of business on such date shall be so entitled.
(13) Voting of Deposited
Securities.
As
promptly as practicable after receipt from the Company of (i) notice of any
meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities and (ii) the statement of the Custodian which will act as a
proxy bank in accordance with Sections 128 and 135 of the German Stock
Corporation Act (Aktiengesetz) (the "Proxy Bank"), setting forth its
recommendations with regard to voting of the Shares pursuant to Section 128 (2)
of the German Stock Corporation Act as to any matter concerning which the notice
from the Company indicates that a vote is to be taken by holders of Shares,
together with an English translation thereof (the "Recommendation"), the
Depositary shall, subject to applicable law and the Company's Articles of
Association, mail 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) containing the Recommendation, and (d) 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 the Proxy Bank to vote the Shares
in accordance with the Recommendation pursuant to Section 128 (2) of the German
Stock Corporation Act. 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. Insofar as the Custodian elects to act as Proxy Bank it shall
not be acting as an agent, or otherwise on behalf of, the
Depositary.
Subject
to the following paragraphs of this Section 13, 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.
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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
twenty-one (21) 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 mail 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 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) such deemed
instruction does not subject the Depositary to any reporting obligations in the
Federal Republic of Germany, (ii) such deemed instruction 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, (iv) the Depositary will not be deemed to be authorized to exercise, or in
fact exercising, any discretion when voting in accordance with the terms of this
paragraph (13) under German law and (v) the Depositary will not be subject to
any liability under German law for losses arising from the exercise of the
voting arrangements set forth in this paragraph (13). If after the
date such opinion is delivered to the Depositary the Company is advised by
counsel that there has occurred a change in German law such that the foregoing
opinion could no longer be rendered favorably in whole or in part, the Company
shall promptly notify the Depositary of such change and the Holders shall
thereafter not be deemed to have given any such instruction. For
purposes of (v) above, counsel to the Company may assume in such opinion that
the Depositary has complied with the instructions received from Holders (or
deemed to have so received) as set forth in this paragraph (13) and that such
liability or losses did not arise due to the negligence or bad faith of the
Depositary or its agents hereunder.
The
Depositary will endeavor to ensure that on any date on which it votes or causes
to be voted Shares or other Deposited Securities pursuant to this Paragraph
(13), it will have on deposit under the Deposit Agreement the number of Shares
or other Deposited Securities with respect to which it has received voting
instructions from Holders. In the event that, on any such date,
the number of Shares or other Deposited Securities, as the case may be, on
deposit under the Deposit Agreement is lower than the number of Shares or other
Deposited Securities with respect to which the Depositary has received voting
instructions, the Depositary shall vote such Shares or other Deposited
Securities in accordance with such instructions adjusting the number of
securities voted on a pro-rated
basis.
(14) Changes Affecting Deposited
Securities. Subject to Paragraphs (4), (7) and (9) hereof,
upon any change in nominal or par value, split-up or consolidation or other
reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders in accordance with Paragraph (11), or
any recapitalization, reorganization, merger, liquidation or similar corporate
event or sale of all or substantially all the assets of the Company, any cash or
securities received by the Depositary in respect of any Deposited Securities
shall constitute Deposited Securities hereunder, and each ADS evidenced by this
ADR shall automatically represent its pro rata interest in the
Deposited Securities as then constituted. In any such case, the
Depositary may, and shall if the Company so requests, distribute any part of the
cash or securities so received or execute and deliver additional ADRs or call
for the surrender of outstanding ADRs to be exchanged for new ADRs describing
the new Deposited Securities.
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(15) Exoneration. The
Depositary, the Company, their respective officers, directors, affiliates and
agents and each of them shall: (a) incur no liability to any Holder
or Beneficial Owner (i) if law, regulation, the provisions of or governing any
Deposited Security, act of God, war or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act that
the Deposit Agreement or this ADR provides shall be done or performed by it, 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) 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; or (d) 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 in each case believed by it in good
faith 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 in good faith to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its
agents shall 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. In the Deposit Agreement, the Company has
agreed to indemnify the Depositary under certain circumstances and the
Depositary has agreed to indemnify the Company under certain
circumstances. No disclaimer of liability under the Securities Act is
intended by any provision hereof or of the Deposit Agreement.
(16) Amendment. Subject
to the last sentence of Paragraph (4), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary without consent of the Holders, provided that any
amendment that imposes or increases any fees or charges (other than those listed
in clauses (i) through (iv) of Paragraph (9)), 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, at the time any amendment so becomes effective, shall be deemed, by
continuing to hold an ADR, to consent and agree to such amendment and to be
bound by the ADRs and the Deposit Agreement as amended thereby. By
holding an ADR, ADS or an interest therein, each Holder and Beneficial Owner
hereto agree that 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 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
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
rules. 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. The
Depositary 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. The Depositary may terminate the Deposit Agreement,
after giving notice to the Holders as set forth in the preceding sentence of
this Paragraph (17) at any time 45 days or more after the Depositary shall have
delivered to the Company its written resignation, provided that no successor
depositary shall have been appointed and accepted its appointment as
provided in Section 10 of the Deposit Agreement before the end of such 45
days. After the date so fixed for termination, the Depositary and its
agents shall 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 together with any such
distributions on Deposited Securities. As soon as practicable after
the expiration of one year from the date so fixed for termination, the
Depositary shall, to the extent practicable, sell the Deposited Securities and
shall thereafter (as long as it may lawfully do so) hold the net proceeds of
such sales, together with any other cash then held by it under the Deposit
Agreement, without liability for interest, for the pro rata benefit of
the Holders of 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 and its indemnification obligations to the Company. After
the date so fixed for termination, the Company shall be discharged from all
obligations under the Deposit Agreement except for its indemnification and
payment obligations to the Depositary.
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