AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of May [●], 2007 (the "Amendment") to the Deposit Agreement dated as of March 1,
2001 (the "Deposit Agreement"), among Siemens Aktiengesellschaft (the
"Company"), incorporated under the laws of The Federal Republic of Germany,
JPMorgan Chase Bank, N.A., as depositary (the "Depositary"), and all Holders
and
Beneficial Owners from time to time of American Depositary Receipts ("ADRs")
issued thereunder.
W I T N E
;S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the Form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms
of
the Deposit Agreement and Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
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ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. The
address of the Depositary set forth in Section 13 of the
Deposit
Agreement is amended to read as follows:
JPMorgan
Chase Bank, N.A.
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
SECTION
2.04. References
in the form of ADR to "Xxxxxx Guaranty Trust Company of New York, a New York
Corporation" are replaced with "JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States of
America".
SECTION
2.05. Paragraph
(5)(iii) of the Form of ADR is amended by replacing 20%" with "30%" and any
and
all other agreements and/or arrangements which may have been entered into
between the Company and the Depositary specifically relating to limiting the
percentage of outstanding Pre-release outstanding is hereby revoked and deemed
null and void.
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SECTION
2.06. Paragraph
(9) of the Form of ADR is amended as follows:
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (11)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (11)), whichever is applicable,
in
each case to the extent charged by the Depositary: (i) to the extent not
prohibited by the rules of the primary stock exchange upon which the ADSs are
listed, a fee of U.S.$1.50 per ADR or ADRs for transfers on the Register, (ii)
a
fee for the distribution or sale of securities pursuant to paragraph (11)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (9) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iii)
an
aggregate fee of U.S.$0.02 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year ((with the aggregate
of
such fees not to exceed the amount set forth above)) and shall be assessed
against holders of ADRs as of the record date or record dates set by the
depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Holders or by deducting such charge from
one
or more cash distributions), and (iv) such fees and expenses as are incurred
by
the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control regulations
or any law or regulation relating to foreign investment) in delivery of
Deposited Securities or otherwise in connection with the Depositary's or its
Custodian's compliance with applicable law, rule or regulation. The Company
will
pay all other charges and expenses of the Depositary and any agent of the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company and the Depositary, except (a) stock transfer or other
taxes
and other governmental charges (which are payable by Holders or persons
depositing Shares), (b) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (c) transfer or registration fees for the registration or transfer
of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities;), (d) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), and (e) any other charge
payable by any of the Depositary, any of the Depositary’s agents, including,
without limitation, the Custodian, or the agents of the Depositary’s agents in
connection with the servicing of the Shares or other Deposited Securities (which
charge shall be assessed against Holders as of the record date or dates set
by
the Depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions). Such charges may at any time and from time to
time
be changed by agreement between the Company and the Depositary with notice
thereof provided to Holders in the manner required by paragraph (16) of the
Form
of ADR.
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SECTION
2.07. The
last
sentence of paragraph (10) of the Form of ADR is amended to read as
follows:
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at 000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.08. The
Form
of ADR, as amended hereby and with other clarifyingchanges, shall be in the
form
set forth as Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
(a) The
Company represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(i)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
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(ii)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in the Federal Republic of
Germany, neither of such agreements need to be filed or recorded with any court
or other authority in the Federal Republic of Germany, nor does any stamp or
similar tax need to be paid in the Federal Republic of Germany on or in respect
of such agreements; and
(iii) All
of
the information provided to the Depositary by the Company in connection with
this Amendment is true, accurate and correct.
(b)
The
Depositary represents and warrants to, and agrees with, the Company, that This
Amendment, when executed and delivered by the Depositary, and the Deposit
Agreement and all other documentation executed and delivered by the Depositary
in connection therewith, will be and have been, respectively, duly and validly
authorized, executed and delivered by the Depositary, and constitute the legal,
valid and binding obligations of the Depositary, enforceable against the
Depositary in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
thirty days from the date notice hereof is first provided to Holders (the
"Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
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IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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By:____________________________
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Name:
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Title:
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By:____________________________
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Name:
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Title:
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JPMorgan
Chase Bank, N.A.
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By:____________________________
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Name:
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Title:
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
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____________
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No.
of ADSs:
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Number
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___________________
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Each
ADS represents One Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the
laws
of
the Federal Republic of Germany)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"),
hereby certifies that ____________ is the registered owner (a "Holder")
of
_____ American Depositary Shares ("ADSs"),
each
(subject to Paragraphs (11) and (14)) representing one ordinary share including,
subject to Paragraph (5) below, rights to receive Shares (together "Shares"
and,
together with any additional securities or cash from time to time held by the
Depositary or the Custodian referred to below in respect or in lieu thereof,
the
"Deposited
Securities"),
of
SIEMENS AKTIENGESELLSCHAFT, a corporation incorporated under the laws of the
Federal Republic of Germany (the "Company"),
deposited with a custodian appointed in accordance with the Deposit Agreement
(hereinafter defined) (subject to Section 7 of the Agreement referred to
below, the "Custodian").
This
ADR is issued pursuant to the Deposit Agreement dated as of March 1, 2001 (as
amended from time to time, the "Deposit
Agreement")
among
the Company, the Depositary and all Holders and Beneficial Owners from time
to
time of American Depositary Receipts issued thereunder ("ADRs"),
each
of whom by accepting an ADR agrees to become a party thereto and to be bound
by
all of the terms and conditions thereof and hereof. Copies of the Deposit
Agreement are on file at the Depositary's Office referred to below and at the
office of the Custodian. This ADR (which includes the provisions set forth
on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York. The terms and conditions of the Deposit Agreement
are hereby incorporated by reference.
(1) Withdrawal
of Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), upon surrender at the Depositary’s Office
referred to below of (i) a certificated ADR in form satisfactory to the
Depositary or (ii) proper instructions and documentation in the case of a Direct
Registration , in either case accompanied by such instruments of transfer as
the
Depositary may require, the Holder hereof is entitled to delivery, as promptly
as practicable, (i) to an account designated by such Holder with Clearstream
Banking AG ("CSB")
or an
institution that maintains accounts with the CSB, of the Shares and the other
Deposited Securities that are eligible for deposit with CSB and (ii) at the
office of the Custodian, of any Deposited Securities that are not eligible
for
deposit with CSB, in each case at the time underlying this ADR. At the request,
risk and expense of the Holder hereof, the Depositary may deliver Deposited
Securities (other than Shares) at the Depositary's Office referred to
below.
(2) Register.
The
Depositary shall keep, at the office of the Depositary at which at any
particular time its depositary receipt business is administered (the
"Depositary's
Office"),
(a) a
register (the "Register") for the registration, registration of transfer,
combination and split-up of ADRs and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term Register includes the Direct Registration System.
The
Depositary may close the Register at any time or from time to time when
reasonably deemed expedient by it after consultation with the Company if
practicable in the case of a closure outside of the ordinary course of business,
or when reasonably requested by the Company.
(3) Title
to ADRs; Validity.
Title
to this ADR, when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of
a
negotiable instrument under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless executed
by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary; provided, however, that, if a co-registrar for
ADRs
has been appointed, such signature may be facsimile if such ADR is countersigned
by the manual or facsimile signature of a duly authorized signatory of such
co-registrar and dated by such signatory.
(4) Certain
Limitations.
As a
condition precedent to the issue or registration of any ADR (including upon
a
transfer, split-up or combination), any distribution in respect thereof or
the
withdrawal of any Deposited Securities, the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge and (ii) any transfer or
registration fees charged by third parties for the transfer of any Deposited
Securities, (b) the production of (i) proof satisfactory to it of the identity
and genuineness of any signature and (ii) such other information as it may
deem
necessary or proper consistent with the Deposit Agreement; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. From time to time, the Company, the Depositary or the
Custodian may also require such information as it may deem necessary or proper
consistent with the Deposit Agreement. The Depositary shall notify the Company
of any procedures established pursuant to clauses (b) or (c) above. The issuance
of ADRs, the acceptance of deposits of Shares, the registration of transfers
of
ADRs or the withdrawal of Deposited Securities may be suspended, generally
or in
particular instances, when the Register or CSB is closed or when any such action
is reasonably deemed expedient by the Depositary or the Company. Registrations
of transfers of ADRs and withdrawals of Deposited Securities shall also be
suspended when requested by the Company, including for the purpose of
facilitating orderly voting of the Deposited Securities. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the U.S. Securities Act of 1933, as amended (the "Securities
Act")
and no
amendment shall impair such requirements.
(5) Pre-release.
Unless
requested in writing by the Company to cease doing so at least two business
days
in advance of the proposed deposit, the Depositary may issue ADRs pursuant
to
Pre-release transactions only if (i) such Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of the Holders (not including any
earnings thereon) until such Shares are deposited (but such collateral shall
not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or
its
customer (a) beneficially owns such Shares, (b) transfers all beneficial right,
title and interest therein to the Depositary for the benefit of the Holders,
(c)
will hold such Shares in trust for the account of the Depositary, (d) will
deliver such Shares to the Custodian as soon as practicable and promptly but
in
no event more than five business days after demand therefor, and (e) will not
take any action with respect to such Shares that is inconsistent with the
Depositary’s transfer of the beneficial ownership thereof and (iii) all
Pre-released ADRs evidence not more than 30% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
compensation for the issuance of ADRs in Pre-release transactions, including,
without limitation earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. The Depositary may also set dollar limits with respect
to
Pre-releases to be entered into with any particular person to whom a Pre-release
was made on a case by case basis as it deems appropriate.
(6) Representations
and Warranties.
Every
person depositing Shares under the Deposit Agreement is deemed to represent
and
warrant that such Shares are validly issued and outstanding, fully paid,
nonassessable and were not acquired in violation of any pre-emptive rights,
that
the person making such deposit is duly authorized to do so and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act and may be offered or sold in the United States in
transactions that are exempt from registration under the Securities Act or
(B)
have been registered under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and the issuance and cancellation
of this ADR.
(7) Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any ADSs evidenced by
this
ADR, any Deposited Securities underlying this ADR or any distribution on any
of
the foregoing, such tax or other governmental charge shall be paid by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of this ADR or any withdrawal of the underlying Deposited Securities until
such
payment is made. The Depositary may also deduct from any distributions on or
in
respect of Deposited Securities, or may sell by public or private sale for
the
account of the Holder hereof all or any part of such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply such deduction or the proceeds of any such sale in payment of
such
tax or other governmental charge. The Holder hereof shall remain liable for
any
deficiency. Upon any such sale, the Depositary shall, if appropriate, reduce
the
number of ADSs evidenced hereby to reflect any such sale and shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such tax or other governmental charge to the Holder
hereof.
(8) Disclosure
of Interests.
Each
Beneficial Owner agrees to comply with all applicable provisions of German
law
and the Company's Articles of Association regarding the notification of such
person's interest in Shares, which provisions at the date of Amendment No.
1 to
the Deposit Agreement include Sections 21, 22 and 25 of the Securities Trading
Act (Wertpapierhandelsgesetz).
At the
date of Amendment No. 1 to the Deposit Agreement, the statutory notification
obligations of the Securities Trading Act apply to anyone whose holding, either
directly or by way of imputation pursuant to the provisions of Section 22 of
the
Securities Trading Act, of voting rights in the Company reaches or exceeds
3%,
5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% or, after having reached or exceeded
any
such threshold, falls below that threshold. In addition, the statutory
notification obligations of the Securities Trading Act apply to anyone who
directly or indirectly holds financial instruments which confer the right to
acquire voting shares in the Company, if the right to acquire shares is
determined by a legally binding agreement and the holder of the financial
instruments may demand transfer of shares upon its own initiative by exercising
the right. This notification obligation arises if the holder reaches, exceeds
or
falls below any of the thresholds mentioned above apart from the 3% threshold.
Each Beneficial Owner acknowledges that failure to provide on a timely basis
any
required notification of an interest in Shares may result in withholding of
certain rights, including voting and dividend rights, in respect of the Shares
in which such Beneficial Owner has an interest. All Holders and Beneficial
Owners agree to comply with all such disclosure requirements and ownership
limitations and to cooperate with the Depositary in the Depositary's compliance
with any Company instructions in respect thereof, and the Depositary shall
use
its best efforts to comply, to the extent practicable, with such Company
instructions.
(9) Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (11)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (11)), whichever is applicable,
in
each case to the extent charged by the Depositary: (i) to the extent not
prohibited by the rules of the primary stock exchange upon which the ADSs are
listed, a fee of U.S.$1.50 per ADR or ADRs for transfers on the Register, (ii)
a
fee for the distribution or sale of securities pursuant to paragraph (11)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (9) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iii)
an
aggregate fee of U.S.$0.02 per ADS (or portion thereof) per calendar year for
services performed by the depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year ((with the aggregate
of
such fees not to exceed the amount set forth above)) and shall be assessed
against holders of ADRs as of the record date or record dates set by the
depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Holders or by deducting such charge from
one
or more cash distributions), and (iv) such fees and expenses as are incurred
by
the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control regulations
or any law or regulation relating to foreign investment) in delivery of
Deposited Securities or otherwise in connection with the Depositary's or its
Custodian's compliance with applicable law, rule or regulation. The Company
will
pay all other charges and expenses of the Depositary and any agent of the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company and the Depositary, except (a) stock transfer or other
taxes
and other governmental charges (which are payable by Holders or persons
depositing Shares), (b) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (c) transfer or registration fees for the registration or transfer
of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities;), (d) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), and (e) any other charge
payable by any of the Depositary, any of the Depositary’s agents, including,
without limitation, the Custodian, or the agents of the Depositary’s agents in
connection with the servicing of the Shares or other Deposited Securities (which
charge shall be assessed against Holders as of the record date or dates set
by
the Depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions). Such charges may at any time and from time to
time
be changed by agreement between the Company and the Depositary with notice
thereof provided to Holders in the manner required by paragraph (16) of the
Form
of ADR.
(10) Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities, delivered to
the
Depositary, and made generally available to the holders of Shares, are available
for inspection by Holders at the Depositary’s Office and the office of the
Custodian. The Depositary will mail copies of such communications (or English
translations or summaries thereof) to Holders when furnished by the Company.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the United
States Securities and Exchange Commission (the "Commission"). Such reports
and
other information may be inspected and copied at public reference facilities
maintained by the Commission located as of the date of the Deposit Agreement
at
000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Dated:
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JPMORGAN
CHASE BANK, N.A.
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By
_________________________________
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Authorized Signatory
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The
Depositary's Office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
[FORM
OF
REVERSE OF RECEIPT]
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Deposit Agreement and to the
Paragraphs (4), (7) and (9) hereof, the Depositary shall as promptly as
practicable distribute by mail to each Holder entitled thereto on the record
date set by the Depositary therefor, in proportion to the number of Deposited
Securities (on which the following distributions are received by the Custodian)
underlying such Holder's ADRs:
(a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this Paragraph (11) ("Cash"),
on an
averaged or other practicable basis, subject to appropriate adjustments for
(i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's expenses in (1) converting any foreign currency into U.S.
dollars, (2) making any sale by public or private means in any commercially
reasonable manner, (3) transferring foreign currency or U.S. dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that such transfer may be made on a reasonable basis, and (4)
obtaining any approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a reasonable cost and within
a reasonable time. Only whole U.S. dollars and cents will be distributed (any
fractional cents being withheld without liability for interest and dealt with
in
accordance with the Depositary's then current procedures).
(b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share
Distribution")
and
(ii) U.S. dollars available to it resulting from the net proceeds of sales
of
Shares received in a Share Distribution, which Shares would give rise to
fractional ADSs if additional ADRs were issued therefor, as in the case of
Cash.
(c) Rights.
(i) To
the extent the Company so instructs and timely furnishes to the Depositary
evidence (the Company having no obligation to so furnish such evidence)
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same, warrants or other instruments representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
or
(ii) to the extent the Company does not furnish such evidence and/or so
instructs the Depositary and sales of Rights are practicable as determined
by
the Depositary after consultation with the Company (which sales shall be
effected as promptly as practicable and, to the extent practicable, on the
principal German stock exchange on which the Rights are traded), any U.S.
dollars available to the Depositary constituting the net proceeds of sales
of
Rights, as in the case of Cash, or (iii) failing either (i) or (ii), nothing
(and any Rights may lapse).
(d) Other
Distributions.
(i)
Securities available to the Depositary resulting from any distribution on
Deposited Securities other than Cash, Share Distributions and Rights
("Other
Distributions"),
by
any means that the Depositary may deem, after consultation with the Company,
lawful, equitable and practicable, or (ii) to the extent the Depositary deems,
after consultation with the Company, a distribution of such securities not
to be
lawful, equitable or practicable, any U.S. dollars available to the Depositary
constituting the net proceeds of the sale of Other Distributions, as in the
case
of Cash.
To
the
extent that the Depositary determines, after consultation with the Company,
that
any distribution is not lawful or practicable with respect to any Holder, the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities),
or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment thereof).
Notwithstanding
anything herein to the contrary, the Company shall have no obligation to either
(i) register any ADSs, Shares, Rights or other securities described in this
Paragraph (11) under the Securities Act or (ii) take other actions to permit
the
distribution of such ADSs, Shares, Rights or other securities in accordance
with
applicable U.S. securities laws.
(12) Record
Dates.
The
Depositary shall, after consultation with the Company to the extent practicable,
fix a record date (which shall be as near as practicable to any corresponding
record date set by the Company with respect to the Shares) for the determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited Securities, to give instructions for the exercise of any
voting rights, to receive any notice or to act in respect of other matters,
and
only Holders of record on the close of business on such date shall be so
entitled.
(13) Voting
of Deposited Securities.
As
promptly as practicable after receipt from the Company of (i) notice of any
meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities
and (ii)
the statement of the Custodian which will act as a proxy bank in accordance
with
Sections 128 and 135 of the German Stock Corporation Act (Aktiengesetz) (the
"Proxy
Bank"),
setting forth its recommendations with regard to voting of the Shares pursuant
to Section 128 (2) of the German Stock Corporation Act as to any matter
concerning which the notice from the Company indicates that a vote is to be
taken by holders of Shares, together with an English translation thereof (the
"Recommendation"),
the
Depositary shall, subject to applicable law and the Company's Articles of
Association, mail to Holders a notice (a) containing such information as is
contained in such notice and any solicitation materials, (b) stating that each
Holder on the record date set by the Depositary therefor will be entitled to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the whole number of Deposited Securities underlying such Holder's
ADRs, (c) containing the Recommendation, and (d) specifying how and when such
instructions may be given,
including an express indication that, if no specific voting instruction is
received prior to the record date set by the Depositary therefor, then the
Holders shall in each
case
be deemed to have instructed the Depositary to give a proxy to the Proxy Bank
to
vote the Shares in accordance with the Recommendation pursuant to Section 128
(2) of the German Stock Corporation Act ; provided that, to the extent that,
pursuant to applicable German and U.S. law and/or stock
exchange regulations as in effect from time to time, the Company is permitted
to
satisfy its obligation to provide any such notice to holders of its Shares
either by electronic delivery or by posting such notice on one or more Internet
websites, the Depositary’s obligation to mail such notice to Holders may be
satisfied either by
the
electronic delivery of such notice by the Depositary, or by the Company’s
posting of such notice on one or more Internet websites accompanied by the
Depositary's delivery of a notice of availability relating to such posting,
provided that in each case such delivery or posting is conducted in the
manner permitted under applicable German and U.S. law and stock exchange
regulations.. Each Holder
who
desires to exercise or to give instructions for the exercise of voting rights
shall execute and return to the Depositary on or before the date established
by
the Depositary for such purpose, a document provided by the Depositary that
instructs the Depositary as to how the number of Shares or other Deposited
Securities represented by such Holder's ADRs are to be voted.
Upon
receipt of instructions of a Holder on such record date in the manner and on
or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law,
the
Company's Articles of Association and the provisions of or governing Deposited
Securities, to vote or cause to be voted the Deposited Securities underlying
such Holder's ADRs in accordance with such instructions. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Deposited Securities, other than in accordance with instructions received
from the Holders (or deemed to have been so received as set forth in the next
paragraph), as of such record date. Insofar as the Custodian elects to act
as
Proxy Bank it shall not be acting as an agent, or otherwise on behalf of, the
Depositary.
Subject
to the following paragraphs of this Section 13, if no specific voting
instructions are received by the Depositary from any Holder (to whom a notice
was sent by the Depositary) with respect to the Deposited Securities, such
Holder shall be deemed, and the Depositary shall deem such Holder, to have
instructed the Depositary to give a proxy to the Proxy Bank to vote such
Deposited Securities in accordance with Section 135 of the German Stock
Corporation Act.
Notwithstanding
anything to the contrary contained herein, in the event that the Proxy Bank
shall fail or decline to supply the Recommendation to the Depositary at least
twenty-one (21) calendar days prior to any meeting of holders of Shares or
other
Deposited Securities with respect to which the Depositary has received notice
from the Company, the Depositary shall mail the above-referenced notice (which
shall not contain the Recommendation or the indication concerning the proxy
to
be given to the Proxy Bank) to the Holders as hereinabove provided, and,
thereafter, in any case in which no specific voting instructions are received
by
the Depositary from a Holder on or before the record date with respect to the
Deposited Securities, no votes shall be cast at such meeting with respect to
such Deposited Securities.
Notwithstanding
anything to the contrary contained herein, the Depositary shall not be obligated
to give any such deemed instruction unless and until the Depositary has been
provided with an opinion of counsel to the Company, which opinion shall
initially be provided on the signing of the Deposit Agreement, in form and
substance satisfactory to the Depositary, to the effect that (i) such deemed
instruction does not subject the Depositary to any reporting obligations in
the
Federal Republic of Germany, (ii) such deemed instruction will not result in
a
violation of German law, rule, regulation or permit, (iii) the voting
arrangement and proxy as contemplated herein will be given effect under German
law, (iv) the Depositary will not be deemed to be authorized to exercise, or
in
fact exercising, any discretion when voting in accordance with the terms of
this
paragraph (13) under German law and (v) the Depositary will not be subject
to
any liability under German law for losses arising from the exercise of the
voting arrangements set forth in this paragraph (13). If after the date such
opinion is delivered to the Depositary the Company is advised by counsel that
there has occurred a change in German law such that the foregoing opinion could
no longer be rendered favorably in whole or in part, the Company shall promptly
notify the Depositary of such change and the Holders shall thereafter not be
deemed to have given any such instruction.
Upon
the
request of a Holder who has not previously given instructions as to the exercise
of voting rights pertaining to the Deposited Securities underlying such Holder’s
ADRs, and subject to compliance with any reasonable regulations and procedures
which the Depositary may establish (which may include the deposit or blocking
of
transfers of such Holder’s ADRs), the Depositary will endeavor to provide such
Holder (or a person designated by such Holder) with the documentation necessary
to enable such Holder to attend a shareholders’ meeting and the Company agrees
to permit such attendance. The Depositary will endeavor to ensure that on any
date on which it votes or causes to be voted Shares or other Deposited
Securities pursuant to this Paragraph (13), it will have on deposit under the
Deposit Agreement the number of Shares or other Deposited Securities with
respect to which it has received voting instructions from Holders. In the event
that, on any such date, the number of Shares or other Deposited Securities,
as
the case may be, on deposit under the Deposit Agreement is lower than the number
of Shares or other Deposited Securities with respect to which the Depositary
has
received voting instructions, the Depositary shall vote such Shares or other
Deposited Securities in accordance with such instructions adjusting the number
of securities voted on a pro-rated
basis.
(14) Changes
Affecting Deposited Securities.
Subject
to Paragraphs (4), (7) and (9) hereof, upon any change in nominal or par value,
split-up or consolidation or other reclassification of Deposited Securities,
any
Share Distribution or Other Distribution not distributed to Holders in
accordance with Paragraph (11), or any recapitalization, reorganization, merger,
liquidation or similar corporate event or sale of all or substantially all
the
assets of the Company, any cash or securities received by the Depositary in
respect of any Deposited Securities shall constitute Deposited Securities
hereunder, and each ADS evidenced by this ADR shall automatically represent
its
pro rata
interest
in the Deposited Securities as then constituted. In any such case, the
Depositary may, and shall if the Company so requests, distribute any part of
the
cash or securities so received or execute and deliver additional ADRs or call
for the surrender of outstanding ADRs to be exchanged for new ADRs describing
the new Deposited Securities.
(15) Exoneration.
The
Depositary, the Company, their respective officers, directors, affiliates and
agents and each of them shall: (a) incur no liability to any Holder or
Beneficial Owner (i) if law, regulation, the provisions of or governing any
Deposited Security, act of God, war or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act that
the Deposit Agreement or this ADR provides shall be done or performed by it,
or
(ii) by reason of any exercise or failure to exercise any discretion given
it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform
its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) be under no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this ADR; or (d) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person in each case believed by it in good
faith to be competent to give such advice or information. The Depositary, the
Company and their respective agents may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
in good faith to be genuine and to have been signed or presented by the proper
party or parties. The Depositary and its agents shall not be responsible for
any
failure to carry out any instructions to vote any of the Deposited Securities,
for the manner in which any such vote is cast or for the effect of any such
vote. The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in ADRs. In the Deposit Agreement, the
Company has agreed to indemnify the Depositary under certain circumstances
and
the Depositary has agreed to indemnify the Company under certain circumstances.
No disclaimer of liability under the Securities Act is intended by any provision
hereof or of the Deposit Agreement.
(16) Amendment.
Subject
to the last sentence of Paragraph (4), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary without consent of the Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than those listed
in clauses (i) through (iv) of Paragraph (9)), or that shall otherwise prejudice
any substantial existing right of Holders, shall become effective 30 days after
notice of such amendment shall have been given to the Holders. Every Holder,
at
the time any amendment so becomes effective, shall be deemed, by continuing
to
hold an ADR, to consent and agree to such amendment and to be bound by the
ADRs
and the Deposit Agreement as amended thereby. By holding an ADR, ADS or an
interest therein, each Holder and Beneficial Owner hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act of 1933 or (b) the ADSs or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not
to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR
to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination.
The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Deposit Agreement, after giving notice to the
Holders as set forth in the preceding sentence of this Paragraph (17) at any
time 45 days or more after the Depositary shall have delivered to the Company
its written resignation, provided that no successor depositary shall have been
appointed and accepted its appointment as provided in Section 10 of the Deposit
Agreement before the end of such 45 days. After the date so fixed for
termination, the Depositary and its agents shall perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn together with any such distributions on Deposited Securities. As
soon
as practicable after the expiration of one year from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold the
net
proceeds of such sales, together with any other cash then held by it under
the
Deposit Agreement, without liability for interest, for the pro
rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and its indemnification obligations to the Company. After the date so fixed
for
termination, the Company shall be discharged from all obligations under the
Deposit Agreement except for its indemnification and payment obligations to
the
Depositary.
