Exhibit 1
[Execution Copy]
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MORPHOSYS AG
and
THE BANK OF NEW YORK
As Depositary
and
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of ______________, 2006
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS...................................................... -1-
SECTION 1.01. AMERICAN DEPOSITARY SHARES................................. -1-
SECTION 1.02. BENEFICIAL OWNER........................................... -2-
SECTION 1.03. COMMISSION................................................. -2-
SECTION 1.04. COMPANY.................................................... -2-
SECTION 1.05. CUSTODIAN.................................................. -2-
SECTION 1.06. DELIVER; SURRENDER......................................... -2-
SECTION 1.07. DEPOSIT AGREEMENT.......................................... -3-
SECTION 1.08. DEPOSITARY; CORPORATE TRUST OFFICE......................... -3-
SECTION 1.09. DEPOSITED SECURITIES....................................... -3-
SECTION 1.10. DOLLARS; EURO.............................................. -3-
SECTION 1.11. GERMAN STOCK CORPORATION ACT............................... -3-
SECTION 1.12. OWNER...................................................... -3-
SECTION 1.13. RECEIPTS................................................... -3-
SECTION 1.14. REGISTRAR.................................................. -4-
SECTION 1.15. RESTRICTED SECURITIES...................................... -4-
SECTION 1.16. SATZUNG.................................................... -4-
SECTION 1.17. SECURITIES ACT OF 1933..................................... -4-
SECTION 1.18. SHARES..................................................... -4-
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS -5-
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS....................... -5-
SECTION 2.02. DEPOSIT OF SHARES.......................................... -5-
SECTION 2.03. EXECUTION AND DELIVERY OF RECEIPTS......................... -6-
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS..................................... -7-
SECTION 2.05. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES............. -7-
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.................................... -8-
SECTION 2.07. LOST RECEIPTS, ETC......................................... -9-
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS...... -10-
SECTION 2.09. PRE-RELEASE OF RECEIPTS................................... -10-
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS
OF RECEIPTS................................................... -10-
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION......... -10-
SECTION 3.02. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.......... -11-
SECTION 3.03. WARRANTIES ON DEPOSIT OF SHARES........................... -11-
SECTION 3.04. DISCLOSURE OF INTEREST.................................... -11-
ARTICLE 4. THE DEPOSITED SECURITIES........................................ -12-
SECTION 4.01. CASH DISTRIBUTIONS........................................ -12-
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS........... -12-
SECTION 4.03. DISTRIBUTIONS IN SHARES................................... -13-
SECTION 4.04. RIGHTS.................................................... -14-
SECTION 4.05. CONVERSION OF FOREIGN CURRENCY............................ -15-
SECTION 4.06. FIXING OF RECORD DATE..................................... -16-
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SECTION 4.07. VOTING OF DEPOSITED SECURITIES............................ -17-
SECTION 4.08. CHANGES AFFECTING DEPOSITED SECURITIES.................... -19-
SECTION 4.09. REPORTS................................................... -19-
SECTION 4.10. LISTS OF OWNERS........................................... -20-
SECTION 4.11. WITHHOLDING............................................... -20-
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.................. -20-
SECTION 5.01. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY
THE DEPOSITARY.......................................... -20-
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY
OR THE COMPANY.......................................... -21-
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND
THE COMPANY............................................. -22-
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY................. -22-
SECTION 5.05. THE CUSTODIANS............................................ -23-
SECTION 5.06. NOTICES AND REPORTS....................................... -24-
SECTION 5.07. DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC............ -24-
SECTION 5.08. INDEMNIFICATION........................................... -25-
SECTION 5.09. CHARGES OF DEPOSITARY..................................... -26-
SECTION 5.10. RETENTION OF DEPOSITARY DOCUMENTS......................... -27-
SECTION 5.11. EXCLUSIVITY............................................... -27-
SECTION 5.12. LIST OF RESTRICTED SECURITIES OWNERS...................... -27-
ARTICLE 6. AMENDMENT AND TERMINATION....................................... -28-
SECTION 6.01. AMENDMENT................................................. -28-
SECTION 6.02. TERMINATION............................................... -28-
ARTICLE 7. MISCELLANEOUS................................................... -29-
SECTION 7.01. COUNTERPARTS.............................................. -29-
SECTION 7.02. NO THIRD PARTY BENEFICIARIES.............................. -29-
SECTION 7.03. SEVERABILITY.............................................. -29-
SECTION 7.04. OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT... -30-
SECTION 7.05. NOTICES................................................... -30-
SECTION 7.06. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS...................................... -30-
SECTION 7.07. GOVERNING LAW............................................. -31-
SECTION 7.08. COMPLIANCE WITH U.S. SECURITIES LAWS...................... -31-
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______________, 2006, among MORPHOSYS AG,
incorporated under the laws of Germany (herein called the Company), THE BANK OF
NEW YORK, a New York banking corporation (herein called the Depositary), and all
Owners and Beneficial Owners from time to time of American Depositary Receipts
issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A to this Deposit Agreement, until there
shall occur a distribution upon Deposited Securities covered by Section 4.03 or
a change in Deposited Securities covered by Section 4.08 with respect to which
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall represent the amount of Shares or Deposited Securities
specified in such Sections.
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SECTION 1.02. Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03. Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.04. Company.
The term "Company" shall mean MorphoSys AG, incorporated under the laws of
Germany, and its successors.
SECTION 1.05. Custodian.
The term "Custodian" shall mean the principal Frankfurt office of BHF-Bank
AG, as agent of the Depositary for the purposes of this Deposit Agreement, and
any other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05, as substitute or additional custodian or
custodians hereunder, as the context shall require and shall also mean all of
them collectively.
SECTION 1.06. Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with respect to Shares
shall mean (i) one or more book-entry transfers to an account or accounts
maintained with a depository institution authorized under applicable law to
effect book-entry transfers of such securities or (ii) the physical transfer of
certificates representing Shares.
(b) The term "deliver", or its noun form, when used with respect to
Receipts, shall mean (i) one or more book-entry transfers of American Depositary
Shares to an account or accounts at The Depository Trust Company ("DTC")
designated by the person entitled to such delivery or (ii) if requested by the
person entitled to such delivery, to delivery at the Corporate Trust Office of
the Depositary of one or more Receipts.
(c) The term "surrender", when used with respect to Receipts, shall mean
(i) one or more book-entry transfers of American Depositary Shares to the DTC
account of the Depositary or (ii) surrender to the Depositary at its Corporate
Trust Office of one or more Receipts.
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SECTION 1.07. Deposit Agreement.
The term "Deposit Agreement" shall mean this Deposit Agreement, as the
same may be amended from time to time in accordance with the provisions of this
Deposit Agreement.
SECTION 1.08. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term "Corporate
Trust Office", when used with respect to the Depositary, shall mean the office
of the Depositary which at the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
SECTION 1.09. Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.05.
SECTION 1.10. Dollars; Euro.
The term "Dollars" shall mean United States dollars. The term "Euro" shall
mean the lawful currency of the Federal Republic of Germany.
SECTION 1.11. German Stock Corporation Act.
The "German Stock Corporation Act" shall mean the German Aktiengesetz, as
from time to time amended.
SECTION 1.12. Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13. Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
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SECTION 1.14. Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.15. Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company, or any affiliate (as defined in Rule 144 to the Securities Act of 1933)
of the Company, in a transaction or chain of transactions not involving any
public offering, or which are held by an affiliate (as defined in Rule 405 under
the Securities Act of 1933) of the Company, or which would require registration
under the Securities Act of 1933 in connection with the public offer and sale
thereof in the United States, or which are subject to other restrictions on sale
or deposit under the laws of the United States or Germany, or under a
shareholder agreement or the Satzung or similar document of the Company.
SECTION 1.16. Satzung.
The term "Satzung" shall means the articles of association of the Company,
as in effect at the relevant time.
SECTION 1.17. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.18. Shares.
The term "Shares" shall mean ordinary shares in bearer form of the
Company, heretofore validly issued and outstanding and fully paid, nonassessable
and that were not issued in violation of any pre-emptive, subscription
(Bezugsrechte) or similar rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid, nonassessable and that
are not issued in violation of any pre-emptive or similar rights of the holders
of outstanding Shares or interim certificates representing such Shares;
provided, however, that, if there shall occur any change in nominal value, a
split-up or consolidation or any other reclassification or, upon the occurrence
of an event described in Section 4.08, an exchange or conversion in respect of
the Shares of the Company, the term "Shares" shall thereafter also mean the
successor securities resulting from such change in nominal value, split-up or
consolidation or such other reclassification or such exchange or conversion.
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ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual signature of a duly authorized officer of the
Registrar. The Depositary shall maintain books on which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Receipts bearing the manual or facsimile signature of a
duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary upon consultation
with the Company or required to comply with any applicable law or regulations
thereunder or with the rules and regulations of any securities exchange upon
which American Depositary Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Depositary nor the Company shall have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt unless such
holder is the Owner thereof.
SECTION 2.02. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
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transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in Germany that is then
performing the function of the regulation of currency exchange. If required by
the Depositary, Shares presented for deposit at any time shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as practicable transfer and record the
Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder together with the other documents required as above specified, such
Custodian shall notify the Depositary of such deposit and the person or persons
to whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification shall be made by letter or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. Upon receiving such notice from such Custodian, or upon the
receipt of Shares by the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver at its Corporate
Trust Office, to or upon the order of the person or persons entitled thereto, a
Receipt or Receipts, registered in the name or names and evidencing any
authorized number of American Depositary Shares requested by such person or
persons, but only upon payment
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to the Depositary of the fees and expenses of the Depositary for the execution
and delivery of such Receipt or Receipts as provided in Section 5.09, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
SECTION 2.04. Registration of Transfer of Receipts; Combination and
Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto. The Depositary shall have available at all times a
sufficient supply of Receipts to meet demand for transfer.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, with written notice to the Company, may appoint one or
more co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. Such co-transfer agents may be removed by the Depositary with
written notice to the Company and substitutes appointed by the Depositary with
written notice to the Company. Each co-transfer agent appointed under this
Section 2.04 shall give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Owners or persons entitled to Receipts and will be entitled to protection and
indemnity to the same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or
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upon his order, of the amount of Deposited Securities at the time represented by
the American Depositary Shares evidenced by such Receipt, except that the
Depositary shall not accept surrender of Receipts for the purpose of withdrawal
to the extent that withdrawal would require the Depositary to deliver any
fraction of a Deposited Security. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of such Owner or as ordered
by him or certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with
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respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
this Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time (x) because of any requirement of law or of any government or
governmental body or commission, (y) under any provision of this Deposit
Agreement or (z) for any other reason, subject to the provisions of the
following sentence. Notwithstanding anything to the contrary in this Deposit
Agreement, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares which would be required to be registered under the
provisions of the Securities Act of 1933 for the public offer and sale thereof
in the United States unless a registration statement is in effect as to such
Shares for such offer and sale.
The Depositary will comply with written instructions of the Company not to
accept for deposit under this Deposit Agreement any Shares identified in such
instructions and under such circumstances as may reasonably specified in such
instruction in order to facilitate the Company's compliance with U.S. securities
laws.
SECTION 2.07. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be canceled by the
Depositary. The Depositary is authorized to destroy Receipts so canceled.
SECTION 2.09. Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, (i) owns the Shares or Receipts to be remitted, as the case may
be, (ii) assigns all benefit right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be, other than
in satisfaction of such Pre-Release), (b) at all times fully collateralized with
cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of Shares not deposited but represented by
American Depositary Shares which are outstanding at any time as a result of
Pre-Release will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; 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 received by
it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval
to execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of
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transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. Upon
written request of the Company, the Depositary shall provide copies of such
proofs, certificates or other information to the Company to the extent permitted
under applicable law.
SECTION 3.02. Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner or
Beneficial Owner thereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and were not issued in
violation of any preemptive, subscription (Bezugsrechte) or similar rights of
the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that such Shares are not, and American Depositary Shares representing such
Shares would not be, Restricted Securities. Such representations and warranties
shall survive the deposit of Shares and delivery of Receipts.
SECTION 3.04. Disclosure of Interest.
Notwithstanding any other provision of this Deposit Agreement, each Owner
and Beneficial Owner agrees to be bound by and subject to the German Stock
Corporation Act and the Satzung of the Company to the same extent as if the
American Depositary Shares evidenced by a Receipt were the Shares represented by
such American Depositary Shares evidenced by such Receipt) and to provide such
information to the Company relating to ownership of the Shares as may be
required thereunder. Under German law, as in effect on the date hereof, a person
who acquires shares in a company resulting in the total interest in the voting
shares capital held by such person exceeding or falling below certain
thresholds, must notify such company within seven days from the
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time when it has or should have knowledge of the completion of the acquisition;
these thresholds are 5%, 10%, 25%, 50% and 75% of the total voting share capital
of such company. This provision has to be observed not only with regard to
Shares directly held but to the same extent for American Depositary Shares
representing such Shares. Each Owner or Beneficial Owner agrees regarding Shares
or American Depositary Shares acquired by it to provide the required information
within the prescribed time period and in the prescribed manner to the Company in
writing, to the extent that such information is available to it and is permitted
to be disclosed under applicable law. If the Company requests information from
the Depositary pursuant to German law or the Satzung of the Company, the
obligations of the Depositary shall be limited to disclosing to the Company such
information relating to the Shares in question as has been recorded by it or its
agent pursuant to the terms of this Deposit Agreement and which is permitted to
be disclosed under applicable law.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.05, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.09) to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes, the amount distributed to the Owner of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Owner a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Owners entitled thereto. The Company or its agent will remit to
the appropriate governmental agency in Germany all amounts withheld and owing to
such agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received
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by it to be distributed to the Owners entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary deems such distribution not to be feasible, the
Depositary may, after consultation with the Company to the extent practical,
adopt such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees and expenses of the
Depositary as provided in Section 5.09) shall be distributed by the Depositary
to the Owners entitled thereto, all in the manner and subject to the conditions
described in Section 4.01; provided, further, that no such distribution to
Owners pursuant to this Section 4.02 shall be unreasonably delayed by any action
of the Depositary or any of its agents. To the extent that such securities or
property or the net proceeds thereof are not effectively distributed to Owners
as provided in this Section 4.02, the same shall represent Deposited Securities
and each American Depositary Share shall therefore also represent its
proportionate interest in such securities, property or net proceeds. The
Depositary may withhold any distribution of securities under this Section 4.02
if it has not received satisfactory assurances from the Company that the
distribution does not require registration under the Securities Act of 1933.
SECTION 4.03. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may distribute, as promptly
as practicable, to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
and the payment of the fees and expenses of the Depositary as provided in
Section 5.09; provided, however, that no such distribution to Owners pursuant to
this Section 4.03 shall be unreasonably delayed by any action of the Depositary
or any of its agents. The Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Company that
such distribution does not require registration under the Securities Act of
1933. In lieu of delivering Receipts for fractional
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American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.01. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary and the Company shall
consult and, after that consultation, the Depositary shall have discretion as to
the procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited
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pursuant to Section 2.02 of this Deposit Agreement, and shall, pursuant to
Section 2.03 of this Deposit Agreement, execute and deliver Receipts to such
Owner; provided, however, that in the case of a distribution pursuant to the
second paragraph of this Section, such deposit shall be made, and depositary
shares shall be delivered, under depositary arrangements which provide for
issuance of depositary receipts subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any Receipt or otherwise. Such proceeds shall be distributed in
accordance with Section 4.01.
Except as otherwise provided in the second paragraph of this Section 4.04,
the Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act of 1933 with respect to a distribution to all Owners or are
registered under the provisions of such Act. Nothing in this Deposit Agreement
shall create any obligation on the part of the Company to file a registration
statement with respect to such rights or underlying securities or to endeavor to
have such a registration statement declared effective. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration under such Act, the Depositary shall not
effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular, provided that the Depositary has not acted in bad
faith.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall
-15-
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof that is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.06. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which shall be the same as, or as near as practical to,
any corresponding record date set by the Company, (a) for the determination of
the Owners who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
-16-
instructions for the exercise of voting rights at any such meeting or (iii)
responsible for any fee or charges assessed by the Depositary pursuant to this
Deposit Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Owners on such record date shall be entitled, as the case may be,
to receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively, to give voting instructions or to act in respect of any other such
matter.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice from the Company of any meeting of, or solicitation
of proxies or consents from, holders of Shares or other Deposited Securities,
the Depositary shall, if requested in writing by the Company, as soon as
practicable thereafter, mail to the Owners a notice (the "Notice"), the form of
which shall be in the sole discretion of the Depositary but which shall contain:
(a) such information as is contained in the notice of meeting or
solicitation sent by the Company to the Depositary;
(b) a statement that each Owner as of the record date fixed pursuant to
Section 4.06 of this Deposit Agreement will be entitled, subject to applicable
provisions of law, including any laws of the Federal Republic of Germany and the
Satzung (of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares;
(c) a statement as to the manner in which instructions with respect to
voting may be given;
(d) a statement that, if no voting instructions are received on or before
the date established by the Depositary for such purpose (the "Instruction
Date"), that an Owner shall be deemed to have instructed the Depositary to give
a proxy to the Custodian to vote such Shares or other Deposited Securities in
accordance with the Recommendation (as defined below) as provided under Section
135 of the Stock Corporation Act of Germany (as discussed below); and
(e) a copy of the Recommendation (as defined below) prepared by such
Custodian in accordance with Section 128(2) of the Stock Corporation Act,
together with an English translation thereof.
The Company has advised that at the date of this Deposit Agreement,
Section 128(2) of the Stock Corporation Act of Germany requires a Vorschlag (a
"Recommendation") be issued in respect of meeting agenda items under certain
-17-
circumstances by certain German banks that may exercise voting rights on behalf
of shareholders. The Company has further advised that Section 135 of the Stock
Corporation Act provides that if voting instructions are not received by such
German banks as to such shares, such shares shall, except under certain limited
circumstances, be voted in accordance with the Recommendation issued under
Section 128(2) of the Stock Corporation Act. The Depositary shall not itself
exercise any voting discretion over any Shares or other Deposited Securities.
Upon the written request of an Owner on such record date, received on or
before the Instruction Date, the Depositary shall endeavor, insofar as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by the American Depositary Shares in accordance with the
instructions received from Owners of such American Depositary Shares.
The Depositary shall not, and shall ensure that its Custodian does not,
vote or attempt to exercise the right to vote or exercise any voting discretion
over the Shares or other Deposited Securities, other than in accordance with
such instructions received from Owners (or deemed to have been received as set
forth in (d) above and in the next paragraph).
Subject to the following paragraph, if no specific voting instructions are
received by the Depositary from any Owner (to whom Notice was sent at the
Company's request) with respect to the Shares or Deposited Securities
represented by such Owner's American Depositary Shares on or before the
Instruction Date, such Owner shall be deemed, and the Depositary shall deem such
Owner, to have instructed the Depositary to give a proxy to the Custodian with
respect to such Shares or other Deposited Securities to vote such Shares or
other Deposited Securities in accordance with the Recommendation.
The Depositary shall request that the Custodian deliver its Recommendation
to the Depositary no later than twenty-one (21) calendar days after the Company
has published proposed resolutions with respect to the relevant meeting in the
Federal Gazette. However, anything in this Deposit Agreement to the contrary
notwithstanding, in the event that the Depositary shall not receive the
Recommendation at least twenty-one (21) calendar days prior to any meeting of
holders of Shares or other Deposited Securities, the Depositary shall mail the
Notice, if requested in writing by the Company, without such Recommendation (and
without reference to any deemed proxy to be given to the Custodian), and
thereafter, in any case in which no specific voting instructions are received by
the Depositary from an Owner on or before the Instruction Date, no votes shall
be cast at such meeting with respect to such Shares or Deposited Securities.
Subject to Section 5.03 of this Deposit Agreement, the Depositary shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, for any failure to timely receive a Recommendation,
for the manner in which any such vote is cast, or for the effect of any such
vote, including, without
-18-
limitation, any deemed proxy or proxy in connection with a Recommendation or any
failure to vote in accordance with a Recommendation.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraphs sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraphs.
In the event that, on any meeting date, the number of Deposited Securities
on deposit under this Deposit Agreement is less than the number of Deposited
Securities with respect to which the Depositary has received voting
instructions, the Depositary shall vote or caused to be voted such Deposited
Securities in accordance with such instructions, adjusting the number of
Deposited Securities voted on a pro-rated basis.
SECTION 4.08. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply, upon
any change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may and, if the Company shall reasonably request, shall execute and
deliver additional Receipts as in the case of a dividend in Shares, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company that are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners copies of such
reports when furnished by the Company pursuant to Section 5.06. Any such reports
and communications, including any such proxy soliciting material, furnished to
the Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
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SECTION 4.10. Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary. The Company shall
have the right to inspect the transfer and registration records of the
Depositary relating to the Receipts, take copies of them and require the
Depositary and its agents to supply copies of such portions of those records as
the Company reasonably requests.
SECTION 4.11. Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively. The Depositary may, to the extent reasonable and practicable in
its discretion, make and maintain arrangements enabling Owners who are citizens
or residents of the United States to receive any tax credits or other benefits
(pursuant to treaty or otherwise) relating to dividend payments on the American
Depositary Shares.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall maintain records of all Receipts surrendered and
Deposited Securities withdrawn under Section 2.05, substitute Receipts delivered
under Section 2.07 and Receipts cancelled or destroyed under Section 2.08 in
accordance with procedures ordinarily followed by stock transfer agents located
in The City of New York or as required by the laws and regulations governing the
Depositary.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than
-20-
the business of the Company or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, supervisory or management board members, employees, agents or
affiliates shall incur any liability to any Owner or Beneficial Owner if, by
reason of any provision of any present or future law or regulation of the United
States or any other country, or of any governmental or regulatory authority or
stock exchange, or by reason of any provision, present or future, of the Satzung
of the Company, or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the Depositary or the Company shall be prevented, delayed or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of this Deposit Agreement or
Deposited Securities it is provided shall be done or performed; nor shall the
Depositary or the Company or any of their respective directors, supervisory or
management board members, employees, agents or affiliates incur any liability to
any Owner or Beneficial Owner of any Receipt by reason of (i) any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of this Deposit Agreement it is provided shall or may be done or
performed, (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iii) for the inability of
any Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Owners or holders,
or (iv) for any special, consequential or punitive damages for any breach of the
terms of this Deposit Agreement. Where, by the terms of a distribution pursuant
to Section 4.01, 4.02, or 4.03, or an offering or distribution pursuant to
Section 4.04, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
-21-
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company.
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in or prosecute any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts on behalf of any Owner,
Beneficial Owner or other person, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary by written notice of
its election so to do delivered to the Company, such resignation to take effect
upon the
-22-
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by 90 days' prior
written notice of such removal, to become effective upon the later of (i) the
90th day after delivery of the notice to the Depositary or (ii) the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon the effectiveness of
such resignation there would be no Custodian acting hereunder, the Depositary
shall, as promptly as practicable after receiving such notice, notify the
Company and appoint a substitute custodian or custodians, each of which shall
thereafter be a Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may, after
consultation with the Company, appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
-23-
` Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in English but otherwise in the form given or to be
given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
The Company has delivered to the Depositary and the Custodian a copy (in
English or with an English translation) of its Satzung. Promptly upon any change
in its Satzung, the Company shall deliver promptly to the Depositary and the
Custodian a copy (in English or with an English translation) of such document as
so changed. The Depositary and its agents may rely on the copy of such document
as so delivered for all purposes of this Deposit Agreement.
SECTION 5.07. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares or exchangeable for Shares, or (4) rights to subscribe
for such securities, in each case in which Owners in the United States are
entitled to participate, (each a "Distribution"), the Company will promptly
notify the Depositary, and upon the Depositary's reasonable request, furnish to
the Depositary a written opinion from U.S.
-24-
counsel for the Company, which counsel shall be reasonably satisfactory to the
Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making such
Distribution available to Owners entitled thereto. If in the opinion of such
counsel a Registration Statement is required, such counsel or the Company shall
furnish to the Depositary satisfactory assurances as to whether or not there is
a Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Shares, either
originally issued or previously issued and reacquired by the Company or any such
affiliate, unless a Registration Statement is in effect as to such Shares under
the Securities Act of 1933.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates against, and hold each of them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
reasonable expenses of counsel) that may arise out of any claim, action,
investigation or proceeding arising out of or in connection with (a) any
registration with the Commission of American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or (b) acts
performed or omitted, pursuant to the provisions of this Deposit Agreement and
of the Receipts, as the same may be amended, modified or supplemented from time
to time, (i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence, bad faith or intentional misconduct of them or
(ii) by the Company or any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense to the extent that such liability
or expense would have arisen had a Receipt or Receipts not been the subject of a
Pre-Release. In addition, for the avoidance of doubt, it is understood that the
first sentence of this paragraph shall not 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) of the Company relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (i)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not
-25-
materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its supervisory and
management board members, employees, agents and affiliates against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the reasonable fees and reasonable expenses of counsel) which may arise out
of acts performed or omitted by the Depositary or its directors, employees,
agents and affiliates due to their negligence, bad faith or intentional
misconduct.
No Owner or Beneficial Owner shall have any rights under this Section
5.08.
SECTION 5.09. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months or at such other interval as the
Company and the Depositary may agree in writing. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03) or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such fees as may from time to time be applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in this
Deposit Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 and the
surrender of Receipts pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to this Deposit Agreement, including, but not limited
to Sections 4.01 through 4.04, (7) a fee for the distribution of securities
pursuant to Section 4.02, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares)
but which securities are instead distributed by
-26-
the Depositary to Owners, (8) a fee of $.02 or less per American Depositary
Share (or portion thereof) for depositary services, which will accrue on the
last day of each calendar year and will be payable as provided in clause 9
below; provided, however, that no fee will be assessed under this clause 8 to
the extent that a fee of $.02 was charged pursuant to clause 6 above during that
calendar year and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 and shall be collected at the
sole discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
(i) reasonably requests that such papers be retained for a longer period or (ii)
requests that such papers be turned over to the Company or to a successor
depositary.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
American depositary receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities as of the date hereof and the Company
shall update that list on a regular basis. The Company agrees to advise in
writing each of the persons or entities so listed that such Restricted
Securities, so long as they remain such, are ineligible for deposit hereunder.
The Depositary may rely on the list provided under this Section 5.12, as most
recently updated, but shall not be liable for any action or omission made in
reliance thereon.
-27-
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of 30 days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner and Beneficial Owner, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold such Receipt or any interest therein, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of termination to the Owners
of all Receipts then outstanding at least 30 days prior to the date fixed in
such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of termination to the Company and the Owners
of all Receipts then outstanding if at least 90 days have passed since the
Depositary delivered to the Company a written notice of its election to resign
and a successor depositary has not been appointed and accepted its appointment
as provided in Section 5.04. On and after the date of termination, the Owner of
a Receipt will, upon (a) surrender of such Receipt at the Corporate Trust Office
of the Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 5.09, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the
-28-
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of six months from the date of termination, the Depositary may sell
the Deposited Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts that have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations to the Company under Section 5.08 hereof. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner during business hours.
SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
-29-
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof or any interest
therein.
SECTION 7.05. Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to MorphoSys XX,
Xxxx-Xxxxxx-Xxx. 00, 00000 Xxxxxxxxxxx/Xxxxxxx, Xxxxxxx, Attention: Head of
Investor Relations, or any other place to which the Company may have transferred
its principal office with notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office with notice to the Company.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06. Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Company hereby (i) irrevocably designates and appoints Xxxxxxx &
Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, as the Company's
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Shares or Deposited Securities, the American
Depositary Shares, the
-30-
Receipts or this Deposit Agreement, (ii) consents and submits to the
jurisdiction of any state court located in the Borough of Manhattan, The City of
New York or federal court sitting in the Borough of Manhattan, The City of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Without prejudice to the foregoing, the Depositary shall send a copy
of any service of process that it has instituted by first class airmail or
courier mail to the Company at its address last specified for notices under this
Deposit Agreement. In the event the Company fails to continue such designation
and appointment in full force and effect, the Company hereby waives personal
service of process upon it and consents that any such service of process may be
made by certified or registered mail, return receipt requested, directed to the
Company at its address last specified for notices hereunder, and service so made
shall be deemed completed five (5) days after the same shall have been so
mailed.
SECTION 7.07. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of Germany. The parties hereto acknowledge that rights relating to the Shares
are governed by German law and that Owners and Beneficial Owners may not be
considered shareholders of the Company.
SECTION 7.08. Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it shall not exercise any rights it
has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A. (1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
-31-
IN WITNESS WHEREOF, MORPHOSYS AG and THE BANK OF NEW YORK have duly
executed this Deposit Agreement as of the day and year first set forth above and
all Owners and Beneficial Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof or any interest
therein.
MORPHOSYS AG
By:
-------------------------------------
Name: Xx. Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
By:
-------------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK,
as Depositary
By:
-------------------------------------
Name: U. Xxxxxxxx Xxxxxxxxx
Title: Vice President
-32-
EXHIBIT A
No.
-------------------------------
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents 1/2 of one deposited
Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES IN BEARER FORM,
NO PAR VALUE, OF
MORPHOSYS AG
(INCORPORATED UNDER THE LAWS OF GERMANY)
The Bank of New York, as depositary (herein called the Depositary), hereby
certifies that___________ ____________________________________________, or
registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares in bearer form (herein called Shares) of
MorphoSys AG, incorporated under the laws of Germany (herein called the
Company). At the date hereof, each American Depositary Share represents 1/2 of
one Share deposited or subject to deposit under the Deposit Agreement (as such
term is hereinafter defined) at the principal Frankfurt office of BHF-Bank AG
(herein called the Custodian). The Depositary's Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
A-1
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
Receipts), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of _______________, 2006, as the same may be
amended from time to time in accordance with its terms (the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt or any interest therein agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and Beneficial Owners of the Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called Deposited Securities). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued, except that the Depositary shall not accept surrender of
Receipts for the purpose of withdrawal to the extent that withdrawal would
require the Depositary to deliver any fraction of a Deposited Security. Delivery
of such Deposited Securities may be made by the delivery of (a) certificates in
the name of the Owner hereof or as ordered by him or certificates properly
endorsed or accompanied by proper instruments of transfer and (b) any other
securities, property and cash to which such Owner is then entitled in respect of
this Receipt. Such delivery will be made at the option of the Owner hereof,
either at the office of the Custodian or at the Corporate Trust Office of the
Depositary, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the
Depositary shall be at the risk and expense of the Owner hereof.
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3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt, including, without limitation, this
Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time (x) because of any requirement of law or of any government or
governmental body or commission, (y) under any provision of the Deposit
Agreement or this Receipt or (z) for any other reason, subject to the provisions
of the following sentence. Notwithstanding anything to the contrary in the
Deposit Agreement or this Receipt, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares which would be required to be
registered under the provisions of the Securities Act of 1933 for the public
offer and sale thereof in the United States unless a registration statement is
in effect as to such Shares for such offer and sale.
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4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof to
the Depositary. The Depositary may refuse to effect any transfer of this Receipt
or any withdrawal of Deposited Securities represented by American Depositary
Shares evidenced by such Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Owner
or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non-assessable, and were not issued in violation
of any preemptive, subscription (Bezugsrechte) or similar rights of the holders
of outstanding Shares and that the person making such deposit is duly authorized
so to do. Every such person shall also be deemed to represent that such Shares
are not, and American Depositary Shares representing such Shares would not be,
Restricted Securities. Such representations and warranties shall survive the
deposit of Shares and delivery of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
to execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in Germany that is then performing the function of the
regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
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issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such fees as may from time to time be
applicable to transfers of Shares to the name of the Depositary or its nominee
or the Custodian or its nominee on the making of deposits or withdrawals under
the terms of the Deposit Agreement, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the
Deposit Agreement and the surrender of Receipts pursuant to Section 2.05 or 6.02
of the Deposit Agreement, (6) a fee of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to Sections
4.01 through 4.04 of the Deposit Agreement, (7) a fee for the distribution of
securities pursuant to Section 4.02 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares), but which securities are instead distributed
by the Depositary to Owners, (8) ) a fee of $.02 or less per American Depositary
Share (or portion thereof) for depositary services, which will accrue on the
last day of each calendar year and will be payable as provided in clause 9
below; provided, however, that no fee will be assessed under this clause 8 to
the extent that a fee of $.02 was charged pursuant to clause 6 above during that
calendar year and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 of the Deposit Agreement and
shall be collected at the sole discretion of the Depositary by billing such
Owners for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may, pursuant to
Section 2.05 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-
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Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation from the person to whom Receipts or Shares are to be delivered,
that such person, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all benefit right, title and interest
in such Shares or Receipts, as the case may be, to the Depositary in its
capacity as such and for the benefit of the Owners, and (iii) will not take any
action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be, other than in satisfaction of such Pre-Release), (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares which are outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; 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 received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual signature of a duly
authorized officer of the Registrar.
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11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Commission with certain public reports
and other documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Securities Exchange Act of 1934, as amended. Such documents will be
available for inspection and copying by Owners and Beneficial Owners at the
public reference facilities maintained by the Commission located at 000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company that are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request, send to Owners of Receipts copies of
such reports when furnished by the Company pursuant to the Deposit Agreement.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Section
5.09 of the Deposit Agreement) to the Owners of Receipts entitled thereto;
provided, however, that in the event that the Company or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will, as
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promptly as practicable, cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto, or
if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may, after consultation with the Company the extent
practical, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement) will be distributed by the Depositary to the Owners of Receipts
entitled thereto all in the manner and subject to the conditions described in
Section 4.01 of the Deposit Agreement; provided, further, that no such
distribution to Owners pursuant to Section 4.02 of the Deposit Agreement shall
be unreasonably delayed by any action of the Depositary or any of its agents. To
the extent that such securities or property or the net proceeds thereof are not
effectively distributed to Owners as provided in Section 4.02, the same shall
represent Deposited Securities and each American Depositary Share shall
therefore also represent its proportionate interest in such securities, property
or net proceeds. The Depositary may withhold any distribution of securities
under Section 4.02 of the Deposit Agreement if it has not received satisfactory
assurances from the Company that the distribution does not require registration
under the Securities Act of 1933.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may distribute, as promptly as practicable, to the Owners
of outstanding Receipts entitled thereto, additional Receipts evidencing an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
of the Deposit Agreement and the payment of the fees and expenses of the
Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement; provided, however, that no such distribution to Owners pursuant to
Section 4.03 of the Deposit Agreement shall be unreasonably delayed by any
action of the Depositary or any of its agents. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary will
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.01 of the Deposit Agreement. If additional Receipts are
not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other
A-8
governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto in proportion to the number of American Depositary Shares held
by them respectively. The Depositary may, to the extent reasonable and
practicable in its discretion, make and maintain arrangements enabling Owners
who are citizens or residents of the United States to receive any tax credits or
other benefits (pursuant to treaty or otherwise) relating to dividend payments
on the American Depositary Shares.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary and the Company shall
consult and, after that consultation, the Depositary shall have discretion as to
the procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the
A-9
rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and
the Company shall cause the Shares so purchased to be delivered to the
Depositary on behalf of such Owner. As agent for such Owner, the Depositary will
cause the Shares so purchased to be deposited pursuant to Section 2.02 of the
Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement,
execute and deliver Receipts to such Owner; provided, however, that in the case
of a distribution pursuant to the preceding paragraph, such deposit shall be
made, and depositary shares shall be delivered, under depositary arrangements
which provide for issuance of depositary receipts subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under applicable
United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Such proceeds
shall be distributed in accordance with Section 4.01 of the Deposit Agreement.
Except as otherwise provided in the second paragraph of Section 4.04 of
the Deposit Agreement, the Depositary will not offer rights to Owners unless
both the rights and the securities to which such rights relate are either exempt
from registration under the Securities Act of 1933 with respect to a
distribution to all Owners or are registered under the provisions of such Act.
Nothing in the Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular, provided that the Depositary has not acted in bad
faith.
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14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09
of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof that is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive
A-11
notice of any meeting of holders of Shares or other Deposited Securities, or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall find it necessary or convenient, the Depositary shall fix a
record date, which shall be the same as, or as near as practical to, any
corresponding record date set by the Company, (a) for the determination of the
Owners of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at any such meeting or (iii)
responsible for any fees or charges assessed by the Depositary pursuant to the
Deposit Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice from the Company of any meeting of, or solicitation
of proxies or consents from, holders of Shares or other Deposited Securities,
the Depositary shall, if requested in writing by the Company, as soon as
practicable thereafter, mail to the Owners a notice (the "Notice"), the form of
which shall be in the sole discretion of the Depositary but which shall contain:
(a) such information as is contained in the notice of meeting or
solicitation sent by the Company to the Depositary;
(b) a statement that each Owner as of the record date fixed pursuant to
Section 4.06 of the Deposit Agreement will be entitled, subject to applicable
provisions of law, including any laws of the Federal Republic of Germany and the
Satzung of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares;
(c) a statement as to the manner in which instructions with respect to
voting may be given;
(d) a statement that, if no voting instructions are received on or before
the date established by the Depositary for such purpose (the "Instruction
Date"), that an Owner shall be deemed to have instructed the Depositary to give
a proxy to the Custodian to vote such Shares or other Deposited Securities in
accordance with the Recommendation (as defined below) as provided under Section
135 of the Stock Corporation Act of Germany (as discussed below); and
(e) a copy of the Recommendation (as defined below) prepared by such
Custodian in accordance with Section 128(2) of the Stock Corporation Act,
together with an English translation thereof.
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The Company has advised that at the date of the Deposit Agreement, Section
128(2) of the Stock Corporation Act of Germany requires a Vorschlag (a
"Recommendation") be issued in respect of meeting agenda items under certain
circumstances by certain German banks that may exercise voting rights on behalf
of shareholders. The Company has further advised that Section 135 of the Stock
Corporation Act provides that if voting instructions are not received by such
German banks as to such shares, such shares shall, except under certain limited
circumstances, be voted in accordance with the Recommendation issued under
Section 128(2) of the Stock Corporation Act. The Depositary shall not itself
exercise any voting discretion over any Shares or other Deposited Securities.
Upon the written request of an Owner on such record date, received on or
before the Instruction Date, the Depositary shall endeavor, insofar as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by the American Depositary Shares in accordance with the
instructions received from Owners of such American Depositary Shares.
The Depositary shall not, and shall ensure that its Custodian does not,
vote or attempt to exercise the right to vote or exercise any voting discretion
over the Shares or other Deposited Securities, other than in accordance with
such instructions received from Owners (or deemed to have been received as set
forth in (d) above and in the next paragraph).
Subject to the following paragraph, if no specific voting instructions are
received by the Depositary from any Owner (to whom Notice was sent at the
Company's request) with respect to the Shares or Deposited Securities
represented by such Owner's American Depositary Shares on or before the
Instruction Date, such Owner shall be deemed, and the Depositary shall deem such
Owner, to have instructed the Depositary to give a proxy to the Custodian with
respect to such Shares or other Deposited Securities to vote such Shares or
other Deposited Securities in accordance with the Recommendation.
The Depositary shall request that the Custodian deliver its Recommendation
to the Depositary no later than twenty-one (21) calendar days after the Company
has published proposed resolutions with respect to the relevant meeting in the
Federal Gazette. However, anything in the Deposit Agreement to the contrary
notwithstanding, in the event that the Depositary shall not receive the
Recommendation at least twenty-one (21) calendar days prior to any meeting of
holders of Shares or other Deposited Securities, the Depositary shall mail the
Notice, if requested in writing by the Company, without such Recommendation (and
without reference to any deemed proxy to be given to the Custodian), and
thereafter, in any case in which no specific voting instructions are received by
the Depositary from an Owner on or before the Instruction Date, no votes shall
be cast at such meeting with respect to such Shares or Deposited Securities.
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Subject to Section 5.03 of the Deposit Agreement, the Depositary shall not
be responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for any failure to timely receive a Recommendation, for
the manner in which any such vote is cast, or for the effect of any such vote,
including, without limitation, any deemed proxy or proxy in connection with a
Recommendation or any failure to vote in accordance with a Recommendation.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraphs sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraphs.
In the event that, on any meeting date, the number of Deposited Securities
on deposit under this Deposit Agreement is less than the number of Deposited
Securities with respect to which the Depositary has received voting
instructions, the Depositary shall vote or caused to be voted such Deposited
Securities in accordance with such instructions, adjusting the number of
Deposited Securities voted on a pro-rated basis.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may and, if the Company shall
reasonably request, shall execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, supervisory or management board members, employees, agents or
affiliates shall incur any liability to any Owner or Beneficial Owner if, by
reason of any provision of any present or future law or regulation of the United
States or any other country, or of any other governmental or regulatory
authority, or by reason of any provision, present or future, of the Satzung of
the Company, or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the
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Depositary or the Company shall be prevented, delayed or forbidden from or be
subject to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement or Deposited Securities
it is provided shall be done or performed; nor shall the Depositary or the
Company or any of their respective directors, supervisory or management board
members, employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of a Receipt by reason of (i) any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of the Deposit Agreement it is provided shall or may be done or performed, (ii)
by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement, (iii) for the inability of any Owner or holder to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Owners or holders, or (iv) for any special,
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02
or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 of the Deposit Agreement, such distribution or offering may not be
made available to Owners of Receipts, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse. Neither the
Company nor the Depositary assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Company shall be under
any obligation to appear in or prosecute any action, suit, or other proceeding
in respect of any Deposited Securities or in respect of the Receipts on behalf
of any Owner, Beneficial Owner or other person, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
for any failure to timely receive a Recommendation, for the manner in which any
such vote is cast or the effect of any such vote, including, without limitation,
any deemed proxy or proxy in connection with a Recommendation or any failure to
vote in accordance with a Recommendation, provided that any such action or
nonaction is in good faith. The Depositary shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with a matter arising wholly
after the removal or resignation of the Depositary, provided that in connection
with the issue out of which such potential liability arises, the Depositary
performed its obligations without negligence or bad faith
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while it acted as Depositary. No disclaimer of liability under the Securities
Act of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary by written notice of
its election so to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by 90 days' prior written notice of such removal, to
become effective upon the later of (i) the 90th day after delivery of the notice
to the Depositary or (ii) the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts to do so, it may, after consultation with the Company,
appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees and cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner and Beneficial Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt or any interest therein, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby except in
order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of termination to the Owners
of all Receipts then outstanding at least 30 days prior to the date fixed in
such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of termination to the Company and the Owners
of all Receipts then outstanding if at least 90 days have passed since the
Depositary delivered to the Company a written
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notice of its election to resign and a successor depositary has not been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 5.09 of the Deposit Agreement, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges). At any time after the expiration of six months from
the date of termination, the Depositary may sell the Deposited Securities then
held under the Deposit Agreement and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts that have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges) and except for its
obligations to the Company under Section 5.08 of the Deposit Agreement. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
22. SUBMISSION TO JURISDICTION.
In the Deposit Agreement, the Company has (i) appointed Xxxxxxx &
Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, as the Company's
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Deposit Agreement, (ii) consented and
submitted to the jurisdiction of any state court located in the Borough of
Manhattan, The City of New York or federal
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court sitting in the Borough of Manhattan, The City of New York in which any
such suit or proceeding may be instituted, and (iii) agreed that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
23. DISCLOSURE OF INTEREST.
Notwithstanding any other provision of this Receipt or the Deposit
Agreement, each Owner and Beneficial Owner agrees to be bound by and subject to
the German Stock Corporation Act and the Satzung of the Company (to the same
extent as if the American Depositary Shares evidenced by a Receipt were the
Shares represented by such American Depositary Shares evidenced by such Receipt)
and to provide such information to the Company relating to ownership of the
Shares as may be required thereunder. Under German law, as in effect on the date
hereof, a person who acquires shares in a company resulting in the total
interest in the voting shares capital held by such person exceeding or falling
below certain thresholds, must notify such company within seven days from the
time when it has or should have knowledge of the completion of the acquisition;
these thresholds are 5%, 10%, 25%, 50% and 75% of the total voting share capital
of such company. This provision has to be observed not only with regard to
Shares directly held but to the same extent for American Depositary Shares
representing such Shares. Each Owner or Beneficial Owner agrees regarding Shares
or American Depositary Shares acquired by it to provide the required information
within the prescribed time period and in the prescribed manner to the Company in
writing, to the extent that such information is available to it and is permitted
to be disclosed under applicable law. If the Company requests information from
the Depositary pursuant to German law or the Satzung of the Company, the
obligations of the Depositary shall be limited to disclosing to the Company such
information relating to the Shares in question as has been recorded by it or its
agent pursuant to the terms of the Deposit Agreement and which is permitted to
be disclosed under applicable law.
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