Exhibit 1
EXECUTION COPY
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ADIDAS-SALOMON AG
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of ______________, 2004
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ............................................... 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES ................................ 1
SECTION 1.02 BENEFICIAL OWNER .......................................... 1
SECTION 1.03 COMMISSION ................................................ 1
SECTION 1.04 COMPANY ................................................... 2
SECTION 1.05 CUSTODIAN ................................................. 2
SECTION 1.06 DEPOSIT AGREEMENT ......................................... 2
SECTION 1.07 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER,
SURRENDER, TRANSFER, WITHDRAW OR CANCEL ................... 2
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE ........................ 2
SECTION 1.09 DEPOSITED SECURITIES ...................................... 2
SECTION 1.10 DOLLARS; EURO ............................................. 2
SECTION 1.11 FOREIGN REGISTRAR ......................................... 2
SECTION 1.12 OWNER ..................................................... 3
SECTION 1.13 RECEIPTS .................................................. 3
SECTION 1.14 REGISTRAR ................................................. 3
SECTION 1.15 RESTRICTED SECURITIES ..................................... 3
SECTION 1.16 SATZUNG ................................................... 3
SECTION 1.17 SECURITIES ACT OF 1933 .................................... 3
SECTION 1.18 SHARES .................................................... 3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS .......... 4
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS ...................... 4
SECTION 2.02 DEPOSIT OF SHARES ......................................... 4
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS ........................ 5
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS ...................................... 6
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES ............ 6
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS ........................ 7
SECTION 2.07 LOST RECEIPTS, ETC. ....................................... 8
SECTION 2.08 CANCELLATION AND DESTRUCTION OF
SURRENDERED RECEIPTS ...................................... 8
SECTION 2.09 PRE-RELEASE OF RECEIPTS ................................... 8
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND
BENEFICIAL OWNERS OF RECEIPTS ............................. 9
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION ......... 9
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES .......... 9
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES ........................... 9
SECTION 3.04 DISCLOSURE OF INTEREST .................................... 10
ARTICLE 4. THE DEPOSITED SECURITIES .................................. 10
SECTION 4.01 CASH DISTRIBUTIONS ........................................ 10
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS ........... 11
SECTION 4.03 DISTRIBUTIONS IN SHARES ................................... 11
SECTION 4.04 RIGHTS .................................................... 12
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY ............................ 13
SECTION 4.06 FIXING OF RECORD DATE ..................................... 14
SECTION 4.07 VOTING OF DEPOSITED SECURITIES ............................ 14
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES .................... 16
SECTION 4.09 REPORTS ................................................... 17
SECTION 4.10 LISTS OF OWNERS ........................................... 17
SECTION 4.11 WITHHOLDING ............................................... 17
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY ............ 17
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SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY ......................................... 17
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY ................................. 18
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY AND THE COMPANY ............. 18
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY ................. 19
SECTION 5.05 THE CUSTODIANS ............................................ 20
SECTION 5.06 NOTICES AND REPORTS ....................................... 20
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC. ........... 21
SECTION 5.08 INDEMNIFICATION ........................................... 21
SECTION 5.09 CHARGES OF DEPOSITARY ..................................... 22
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS ......................... 23
SECTION 5.11 EXCLUSIVITY ............................................... 23
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS ...................... 23
ARTICLE 6. AMENDMENT AND TERMINATION ................................. 24
SECTION 6.01 AMENDMENT ................................................. 24
SECTION 6.02 TERMINATION ............................................... 24
ARTICLE 7. MISCELLANEOUS ............................................. 25
SECTION 7.01 COUNTERPARTS .............................................. 25
SECTION 7.02 NO THIRD PARTY BENEFICIARIES .............................. 25
SECTION 7.03 SEVERABILITY .............................................. 25
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES;
BINDING EFFECT ............................................ 25
SECTION 7.05 NOTICES ................................................... 25
SECTION 7.06 SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS .............................. 26
SECTION 7.07 GOVERNING LAW ............................................. 26
SECTION 7.08 COMPLIANCE WITH U.S. SECURITIES LAWS ...................... 27
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _________________, 2004, among
ADIDAS-SALOMON AG, incorporated under the laws of the Federal Republic 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 hereto 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 annexed hereto, 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 evidence the amount of Shares or Deposited Securities specified in
such Sections.
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.
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SECTION 1.04 Company.
The term "Company" shall mean adidas-Salomon AG, incorporated under the
laws of the Federal Republic of Germany, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the Frankfurt am Main, Germany office of
ING 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 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.07 deposit, deliver, execute, issue, register, surrender, transfer,
withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under German law (or the law of another country or of
the EU acceptable to the Company) to effect transfers of securities and not to
the physical transfer of certificates representing the Shares.
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 Deposit 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 lawful currency of the member states of the European Union.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean, if applicable, the entity that
presently carries out the duties of registrar for the Shares or any successor as
registrar for the Shares and any other appointed agent of the Company for the
transfer and registration of Shares.
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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.
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, that 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 in either case are acquired directly or
indirectly from the Company or its affiliates (as defined in Rule 144 to the
Securities Act of 1933) in a transaction or chain of transactions not involving
any public offering in the United States, 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 the
Federal Republic of Germany, or under a shareholder agreement or the Satzung
(Articles of Association) of the Company.
SECTION 1.16 Satzung.
The term "Satzung" shall mean 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 bearer shares of the Company, heretofore
validly issued and outstanding and fully paid, nonassessable and free of any
pre-emptive rights (or similar rights, including subscription rights
(Bezugsrechte)) of the holders of outstanding Shares or hereafter validly issued
and outstanding and fully paid, nonassessable and free of any pre-emptive rights
(or similar rights, including subscription rights (Bezugsrechte)) 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.
ARTICLE 2.
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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 signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are 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
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.
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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 the Federal Republic of Germany which is then
performing the function of the regulation of currency exchange. If required by
the Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable, are
closed, 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 specified
above, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of 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 (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
specified above, 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 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.
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SECTION 2.04 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 transfers.
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 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 such 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
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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 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 because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or 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 Company 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
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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 that 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 Shares identified in such
instructions and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with United States
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.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, unless requested in writing by the
Company to cease doing so, 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 beneficial 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 outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the
8
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company, change such
limit for purposes of general application. The Depositary will also set dollar
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
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 or 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. 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 free of any
pre-emptive rights (or similar rights, including
9
subscription rights (Bezugsrechte)) 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 the deposit of such Shares are
not, and the sale of Receipts evidencing American Depositary Shares representing
such Shares by that person are not restricted under the Securities Act of 1933.
Such representations and warranties shall survive the deposit of Shares and
issuance 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 Satzung (Articles
of Association) 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 share 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 or the Custodian, as the
registered owners of Shares, pursuant to German law or the Satzung (Articles of
Association) of the Company, the obligations of the Depositary or the Custodian
as the case may be, shall be limited to disclosing to the Company such
information relating to the Shares in question as has in each case been recorded
by it 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, as promptly as practicable, 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
10
whole cent and so distributed to Owners entitled thereto. The Company or its
agent will remit to the appropriate governmental agency in the Federal Republic
of 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, as promptly as practicable,
cause the securities or property received 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, after consultation with the Company, may 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.
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
11
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 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, after consultation
with the Company, 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 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. In the case
of a distribution pursuant to the second paragraph of this section, depositary
arrangements shall be made providing for the issuance of Receipts legended in
accordance with
12
applicable U.S. laws and subject to the appropriate restrictions on sale,
deposit, cancellation and transfer under applicable U.S. 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 provide 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; provided, that 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 the Securities
Act of 1933, 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.
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 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 and/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
13
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, if practicable, shall be the record date, if any,
established by the Company for such purposes or, if different, as close thereto
as practicable (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, (ii) entitled to give 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 and to give voting instructions and
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:
14
(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 (Articles of Association) 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
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 may, in certain circumstances, be
voted in accordance with the Recommendation issued under Section 128(2) of the
Stock Corporation Act.
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
15
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 fourteen (14) 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 fourteen (14) 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 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 shall if the Company shall reasonably request, 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.
16
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 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.
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.
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 shall use reasonable efforts to 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 hereof, substitute Receipts
delivered under Section 2.07 hereof and Receipts cancelled or destroyed under
Section 2.08 hereof in accordance with procedures ordinarily followed by stock
transfer agents located in The City of New York.
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
17
by the Owners and the Company, provided that such inspection shall not be for
the purpose of communicating with Owners in the interest of a business or object
other than 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 of any
Receipt, (i) 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 (Articles of Association) 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, (ii) by reason of 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, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) 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 (v) 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 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, 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.
SECTION 5.03 Obligations of the Depositary 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
18
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts on behalf of any Owner
or Beneficial Owner.
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,
Beneficial 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, 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, 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 hereunder 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 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 after delivery of the notice to the Depositary and (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
19
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, upon
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.
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,
20
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.
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 (each a "Distribution"), the Company will, as promptly
practicable, notify the Depositary, and upon the Depositary's reasonable
request, furnish to the Depositary a written opinion from U.S. counsel for the
Company that is 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 that 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 and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, in accordance with 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 or bad faith of either 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 may arise out of any "Pre-Release Transaction".
For purposes of this provision, the term "Pre-Release Transaction" means any
transaction entered into by the Depositary (other than any such transaction to
which the Company is a party) to implement or carry out any one or more
Pre-Releases (including without limitation any transaction pursuant to Section
2.09), but does not include the execution and delivery, transfer, exchange, or
surrender and cancellation of any Pre-Released Receipts or any other act
performed or omitted in accordance with the provisions of this Deposit Agreement
or the Receipts. 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
21
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 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 directors, supervisory
or management board members, employees, agents and affiliates against, and hold
each of them harmless from any liability or expense which may arise out of acts
performed or omitted by the Depositary or its Custodian or their respective
directors, employees, agents and affiliates due to their negligence or bad
faith.
If an action or proceeding (including, but not limited to, any
governmental investigation, claim or dispute) in respect of which indemnity may
be sought by either party is brought or asserted against the other party, the
party seeking indemnification (the "Indemnitee") shall promptly notify the other
party (the "Indemnitor") in writing of such proceeding giving reasonable details
thereof. The Indemnitor shall be entitled to participate in such proceeding and,
to the extent no conflict of interest exists in the conduct of the defense, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnitee. After notice from the Indemnitor to the Indemnitee of its election
to assume the defense, and provided no conflict of interest exists, the
Indemnitor shall not be liable to the Indemnitee for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the
Indemnitee, in connection with the defense other than reasonable costs of
investigation. No compromise or settlement of such action or proceeding may be
effected by either party without the other party's consent (which shall not be
unreasonably withheld) unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may be made against such
other party and (ii) the sole relief provided is monetary damages that are paid
in full by the party seeking such compromise or settlement and (iii) such
compromise or settlement includes an unconditional release of the Company and
any other Indemnitee from all liability on any claims that are or could arise
from the subject matter of such action or proceeding.
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
22
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar, if applicable, and applicable to transfers of
Shares to or from 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 hereof, (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 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 which will be payable as provided in clause (9) below;
provided, however, that no fee will be assessed under this clause (8) to the
extent a fee of $.02 was charged pursuant to clause (6) above during that
calendar year and (9) any other charge 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 hereof, 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
requests that such papers be retained for a longer period or 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.
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 dated hereof and the Company shall update that
list as changes occur. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities,
23
so long as they remain as 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.
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 of
Receipts 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 thirty
(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 such termination to the
Owners of all Receipts then outstanding at least ninety (90) days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to the
Company and the Owners of all Receipts then outstanding, if at any time ninety
(90) days have passed since the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have 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 Sections 2.05 or 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 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
24
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
hereof.
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 of a Receipt 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.
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 adidas-Salomon AG,
World of Sports, Xxx-Xxxxxxx-Xxxxxxx 0,
00
Xxxxxxxxxxxxxx, X-00000, Xxxxxxx, Attention: Investor Relations, and
adidas-Salomon, 0000 X. Xxxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxx 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 or
confirmation as aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints Xxxx Xxxxxxx,
adidas-Salomon, 0000 X. Xxxxxxx, Xxxxxxxx, 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) consents and submits to the
jurisdiction of any state or federal court in the State 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. The Company
agrees to deliver, upon the execution and delivery of this Deposit Agreement, a
written acceptance by such agent of its appointment as such agent. The Company
further agrees to take any and all action, including the filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment in full force and effect for so long as any American Depositary
Shares or Receipts remain outstanding or this Deposit Agreement remains in
force. 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
26
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 the Federal
Republic 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.
27
IN WITNESS WHEREOF, ADIDAS-SALOMON 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.
ADIDAS-SALOMON AG
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:______________________________
Name:
Title:
28
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one-half of one (1/2)
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR BEARER SHARES OF
WITHOUT PAR VALUE OF
ADIDAS-SALOMON AG
(INCORPORATED UNDER THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited bearer shares (herein called "Shares") of adidas-Salomon
AG, incorporated under the laws of the Federal Republic of Germany (herein
called the "Company"). At the date hereof, each American Depositary Share
represents one-half of one (1/2) Share deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the Frankfurt am
Main, Germany office of ING 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
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 _________________, 2004, as the same may
be amended from time to time in accordance with its terms (herein called 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 the
City of New York 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 such 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.
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
2
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 because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or 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 Company 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 that 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 the Deposit Agreement Shares identified in such
instructions and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with United States
securities laws.
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
3
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 free of any pre-emptive
rights of the holders (or similar rights, including subscription rights
(Bezugsrechte)) 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 the deposit of such Shares are not, and the sale of Receipts evidencing
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance 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 or 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 the Federal Republic of
Germany that is then performing the function of the regulation of currency
exchange.
7. 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 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration
4
fees as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Company or Foreign Registrar, if
applicable, and applicable to transfers of Shares to or from 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
which will be payable as provided in clause (9) below; provided, however, that
no fee will be assessed under this clause (8) to the extent a fee of $.02 was
charged pursuant to clause (6) above during that calendar year and (9) any other
charge 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, unless requested in
writing by the Company to cease doing so, 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-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
beneficial 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
5
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 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
disregard such limit from time to time as it deems reasonably appropriate, and
may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities under the Deposit
Agreement).
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 signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual of a duly authorized officer of
the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
6
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx 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 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 and the Company, 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, as promptly as
practicable, the amount thus received (net of the fees and expenses of the
Depositary as provided in Article 7 hereof and 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 shall, as 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
7
Receipts entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary, after consultation with the
Company, may 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 of the Deposit
Agreement, 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.
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 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 shall use reasonable efforts to 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.
8
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, after consultation
with the Company, 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 under the Deposit Agreement, 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 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. In the case
of a distribution pursuant to the second paragraph of this Article 13,
depositary arrangements shall be made providing for the issuance of Receipts
legended in accordance with applicable U.S. laws and subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under applicable U.S.
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
9
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 provide in the second paragraph of this Article 13,
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; provided, that 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.
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 and/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
10
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 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, if practicable, shall be the record date, if
any, established by the Company for such purposes or, if different, as close
thereto as practicable (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 fee
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 (Articles of Association) of the Company, to instruct the Depositary as
to the exercise of the voting
11
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 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 may, in certain circumstances, be
voted in accordance with the Recommendation issued under Section 128(2) of the
Stock Corporation Act.
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
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Recommendation to the Depositary no later than fourteen (14) 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 fourteen (14) 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 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 the 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 shall if the Company shall
reasonably request, 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.
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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 of any
Receipt, (i) 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 (Articles of Association) 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 the Deposit Agreement or Deposited Securities it is provided shall
be done or performed, (ii) by reason of 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, (iii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement, (iv) 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 (v) 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, 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. 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, prosecute or defend any action, suit, or other
proceeding in respect of any Deposited Securities or in respect of the Receipts
on behalf of any Owner or holder. 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
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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, 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 while it
acted as Depositary.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder 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 and (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, upon 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 of
Receipts 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 (30) days after notice of such amendment shall have been given to the
Owners of outstanding Receipts. Every Owner or 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 such termination to the
Owners of all Receipts then outstanding at least ninety (90) days prior to the
date fixed in such notice for such
15
termination. The Depositary may likewise terminate the Deposit Agreement by
mailing notice of such termination to the Company and the Owners of all Receipts
then outstanding if at any time ninety (90) days have passed since the
Depositary shall have delivered to the Company a written notice of its election
to resign and a successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.04 of 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 Sections
2.05 or 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). 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, Xxxx Xxxxxxx,
adidas-Salomon, 0000 X. Xxxxxxx, Xxxxxxxx, 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 the Deposit Agreement, (ii) consented and submitted to
the jurisdiction of any state or federal court in the State of New York in which
any such suit or proceeding may be instituted,
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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 the Deposit Agreement, each Owner
and Beneficial Owner agrees to be bound by and subject to the Satzung (Articles
of Association) 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 share 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 or the Custodian, as the
registered owners of Shares, pursuant to German law or the Satzung (Articles of
Association) of the Company, the obligations of the Depositary or the Custodian
as the case may be, shall be limited to disclosing to the Company such
information relating to the Shares in question as has in each case been recorded
by it pursuant to the terms of the Deposit Agreement and which is permitted to
be disclosed under applicable law.
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