DEUTSCHE TELEKOM AG
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS, As Depositary
AND
HOLDERS
AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
EVIDENCED
BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Amended
and Restated Deposit Agreement
Dated
as
of November __, 2005
Table
of Contents
|
Page
|
||
|
Section
1.
|
Definitions
|
1
|
|
Section
2.
|
Form
of ADR; Incorporation by Reference
|
2
|
|
Section
3.
|
Deposit
of Shares
|
2
|
|
Section
4.
|
Issue
of ADRs
|
3
|
|
Section
5.
|
Transfer,
Combination and Split-up of ADRs; Substitution of ADRs;
|
|
|
Cancellation
and Destruction of ADRs; Maintenance of Records; Reports
|
3
|
|
|
Section
6.
|
Distributions;
Conversion of Foreign Currency; Withholding
|
4
|
|
Section
7.
|
Custodian
|
5
|
|
Section
8.
|
Depositary's
Agents
|
5
|
|
Section
9.
|
Lists
of Holders and Other Information
|
6
|
|
Section
10.
|
Resignation
and Removal of the Depositary; Successor Depositary
|
6
|
|
Section
11.
|
Information;
Voting
|
6
|
|
Section
12.
|
Indemnification
|
7
|
|
Section
13.
|
Notices
|
7
|
|
Section
14.
|
Miscellaneous
|
8
|
|
Section
15.
|
Binding
Effect
|
8
|
|
Section
16.
|
No
Partnership or Joint Venture
|
|
|
Section
17.
|
Governing
Law
|
|
|
Section
18.
|
Compliance
With U.S. Securities Laws
|
|
|
Exhibit
A to
|
Deposit
Agreement: Form of ADR
|
A-1
|
|
Withdrawal
of Deposited Securities
|
A-2
|
|
|
Register
|
A-2
|
|
|
Title
to ADRs; Validity
|
A-2
|
|
|
Certain
Limitations
|
A-2
|
|
|
Pre-release
|
A-3
|
|
|
Representations
and Warranties
|
A-5
|
|
|
Information
and Taxes
|
A-5
|
|
|
Disclosure
of Interests
|
A-5
|
|
|
Charges
of Depositary
|
A-5
|
|
|
Available
Information
|
A-6
|
|
|
Distributions
on Deposited Securities
|
A-7
|
|
|
Record
Dates
|
A-8
|
|
|
Voting
of Deposited Securities
|
A-8
|
|
|
Changes
Affecting Deposited Securities
|
A-9
|
|
|
Exoneration
|
A-10
|
|
|
Amendment
|
X-00
|
|
|
Xxxxxxxxxxx
|
X-00
|
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of November __, 2005 (the "Agreement")
among
Deutsche Telekom AG (the "Company"),
Deutsche Bank Trust Company Americas, an
indirect wholly owned subsidiary of Deutsche Bank A.G., as
depositary hereunder (the "Depositary"), and all holders and beneficial owners
from time to time of American Depositary Receipts evidencing American Depositary
Shares issued hereunder.
WITNESSETH:
WHEREAS,
the
Company has established an ADR facility to provide for the deposit of the Shares
and the creation of ADSs representing the Shares so deposited pursuant to the
Deposit Agreement, dated as of
November
18, 1996 in relation to the ADR program (the "Old Deposit Agreement"), by and
among the Company, Citibank, N.A. and all holders and beneficial owners from
time to time of ADRs ("Old Receipts") issued thereunder;
WHEREAS,
pursuant to a letter dated November
15, 2005 (the "Notice Letter") the Company has provided written notice to
Citibank, N.A. that the Company desires to remove Citibank, N.A. as Depositary
under the Old Deposit Agreement and has appointed the Depositary as successor
depositary thereunder;
WHEREAS,
pursuant to the Notice Letter, the Depositary has accepted its appointment
as
successor depositary under the Old Deposit Agreement and agreed to be bound
by
all of the terms and provisions binding upon the depositary under the Old
Deposit Agreement;
WHEREAS,
the
Company and Deutsche Bank Trust Company Americas, in its capacity as successor
depositary under the Old Deposit Agreement, now wish to amend and restate the
Old Deposit Agreement and the Old Receipts;
WHEREAS,
the
Company desires to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of Shares of the Company from time to time with the Depositary
or with the Custodian as agent of the Depositary for the purposes set forth
in
this Deposit Agreement, for the creation of ADSs representing the Shares so
deposited and for the execution and delivery of ADRs evidencing the ADSs;
and
WHEREAS,
the
ADRs are to be substantially in the form of Exhibit A 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 among the
parties hereto as follows:
Section
1. Definitions.
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Agreement.
a) "ADRs"
means
American depositary receipts evidencing ADSs issued under the terms of this
Deposit Agreement. ADRs may
be
either in physical certificated form or maintained through book-entry notations
on the books and records of the Depositary ("Book-Entry ADRs"). ADRs in physical
certificated form, and the terms and conditions governing the Book-Entry ADRs,
shall be substantially in the form of Exhibit A annexed hereto. References
to
ADRs shall include certificated ADRs and Book-Entry ADRs, unless the context
otherwise requires.
b) "ADSs"
means
American depositary shares representing the interests in the Deposited
Securities described in the ADRs. Subject to Paragraphs (11) and (14) of the
Form of ADR, each ADS represents the right to receive one (1)
Share.
1
c) "Articles
of Association"
means
the Articles of Association (Satzung) of the Company.
d) "Beneficial
Owner"
means a
person with a beneficial interest in an ADS.
e) "CSB"
means
Clearstream Banking AG, the German central securities depositary,
and any successor entity.
f) "Custodian"
means
the custodial agent of the Depositary identified as Custodian in the Form of
ADR
and any additional or successor Custodian which may be appointed pursuant to
Section 7.
g) "Delivery
Order"
has the
meaning set forth in Section 3(a).
h) "Depositary's
Office"
means
at any particular time the office of the Depositary in The City of New York
at
which its depositary receipt business is then administered. At the date of
this
Agreement the Depositary's Office is 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
i) "Deposited
Securities"
at any
particular time means all Shares then deposited or deemed to be deposited under
this Agreement and any and all additional securities, property and cash received
by the Depositary or the Custodian in respect or in lieu thereof and at such
time held hereunder.
CSB
j) “Form
of ADR”
has the
meaning set forth in Section 2.
k) "Holder"
means
the person or persons in whose name an ADR is registered on the
Register.
l) "NYSE"
means
New York Stock Exchange.
m) "Pre-release"
has the
meaning set forth in Section 3(a).
n) "Pre-released
ADR"
has the
meaning set forth in Section 3(a).
o) "Register"
has the
meaning set forth in Paragraph (2) of the Form of ADR.
p) "Securities
Act"
means
the U.S. Securities Act of 1933, as amended.
q) "Securities
Exchange Act"
means
the U.S. Securities Exchange Act of 1934, as amended.
r) "Shares"
means
the ordinary shares, in registered form, no par value, of the Company, having
the same rights, including with respect to distributions, as all other
outstanding ordinary shares of the Company, and, subject to Paragraph (5) of
the
Form of ADR, shall include rights to receive Shares.
Section
2. Form
of ADR; Incorporation by Reference.
2
a) Form
of ADR.
ADRs
shall be substantially in the form of Exhibit A hereto (the "Form
of ADR"),
with
such changes or legends, as may be required by the Depositary or the Company
to
comply with their obligations hereunder, any applicable law, regulation or
requirements of the NYSE or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs shall be engraved
or
printed or otherwise reproduced in accordance with the Depositary's customary
practices or as may be required by the NYSE or any applicable rule or regulation
of any securities exchange on which the ADSs are listed or admitted for trading.
ADRs shall be executed by the manual signature of a duly authorized signatory
of
the Depositary, which signature shall bind the Depositary, notwithstanding
that
such signatory has ceased to hold such authority prior to the delivery of such
ADRs; provided,
however, that such signature may be a facsimile if such ADRs are countersigned
by the manual signature of a duly authorized signatory of the registrar
appointed for such purpose by the Depositary and dated by such
signatory.
b) Incorporation
by Reference.
The
terms and conditions set forth in the Form of ADR are hereby incorporated by
reference herein and made a part hereof as if set forth herein, and shall be
binding upon the parties hereto as if restated in their entirety
herein.
Section
3. Deposit
of Shares.
a) Deposit
with Custodian.
Subject
to the terms and conditions of this Agreement, the Depositary shall issue ADRs
for delivery at the Depositary's Office against delivery or transfer to the
Custodian of: (i) Shares by credit to the account of the Custodian with CSB;
or
(ii) subject to the provisions of Paragraph (5) of the Form of ADR, rights
to
receive Shares. ADRs issued upon the deposit of rights to receive Shares in
accordance with clause (ii) of this Section 3(a) are hereinafter referred to
as
"Pre-released
ADRs",
and
each such issuance as a "Pre-release",
until
such time as Shares are deposited with the Custodian in accordance with clause
(i) of this Section 3(a). In connection with any such deposit, the Depositary
or
the Custodian may require a written order from the person making such deposit
specifying the person or persons in whose name the ADRs are to be issued (a
"Delivery
Order").
b) Representations.
Every
person depositing Shares hereunder is deemed to represent and warrant that
such
Shares are validly issued and outstanding, fully paid, nonassessable, free
and
clear of any lien, encumbrance, security interest, charge, pledge or restriction
of transfer and were not acquired in violation of any pre-emptive rights, that
the person making such deposit is duly authorized to do so and that such Shares
are not subject to any other restriction on sale, transfer or deposit under
the
laws of the United States, the Federal Republic of Germany, or under a
shareholders' agreement, or the Articles of Association or any applicable
regulations of any securities exchange. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. If any such
representations or warranties are incorrect in any respect, the Company and
the
Depositary shall be authorized, at the cost and expense of the person depositing
such Shares, to take any and all actions necessary to correct the consequences
thereof, whether or not the person who deposited the Shares is at the time
of
such action the Holder or a Beneficial Owner of the ADSs representing such
shares.
c) Refusal
of Deposit.
The
Depositary shall not knowingly accept for deposit hereunder any Shares required
to be registered under the Securities Act and not so registered. The Depositary
will comply with written instructions of the Company not to accept for deposit
hereunder any Shares identified in such instructions at such times and under
such circumstances as may reasonably be speci-fied in such instructions in
order
to facilitate the Company's compliance with applicable U.S. securities
laws.
3
d) Holding
of Deposited Securities.
Deposited Securities shall be held by the Custodian for and to the order of
the
Depositary. Shares and other Deposited Securities eligible for deposit with
CSB
shall be held by the Custodian at its account at CSB. Deposited Securities
may
be delivered by the Depositary or the Custodian to any person only under the
circumstances expressly contemplated in this Agreement.
e) Treatment
as Legal Owner.
Notwithstanding anything herein to the contrary, the Company will, for German
law purposes, treat the Depositary, in its capacity as such, as the legal owner
of all Deposited Securities and when referring to the Depositary as a
shareholder of the Company, specify that such shareholding is the result of
Depositary's appointment hereunder. Each Holder and Beneficial Owner, upon
acceptance of ADSs represented by an ADR issued in accordance with the terms
hereof, hereby appoints the Depositary its attorney-in-fact, with full power
to
delegate, to act on its behalf and to take any and all steps or action provided
for or contemplated herein with respect to the Deposited Securities, to adopt
any and all procedures necessary to comply with applicable law, and to take
such
further steps or action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this Deposit
Agreement.
f) Issuance
of Additional Shares; Compliance with Law.
The
Company agrees with the Depositary that (a) neither the Company nor an affiliate
of the Company within the meaning of the Securities Act will at any time deposit
any Shares, either upon original issuance or upon a sale of Shares previously
issued and reacquired by the Company or by any company under its control, unless
a registration statement is in effect as to such Shares under the Securities
Act
or unless the offering and sale of such Shares or the transactions is exempt
from registration under the provisions of the Securities Act and (b) the Company
shall give timely notice to the Depositary of any issuance by it of (i)
additional Shares, (ii) rights to subscribe for Shares, (iii) securities
convertible into or exchangeable for Shares, or (iv) rights to subscribe for
any
such securities and that the Company will cooperate with the Depositary to
establish the requisite procedures to avoid the violation of the Securities
Act
in connection with such events. Notwithstanding the preceding sentence, the
Company shall not be obligated to file any registration statement in respect
of
any proposed transaction or to endeavor to have such a registration statement
declared effective.
Section
4. Issue
of ADRs.
The
Depositary shall instruct the Custodian to notify the Depositary as promptly
as
practicable after any deposit of Shares or rights to receive Shares in
accordance with Section 3, together with any other documents required by the
Depositary in accordance with this Agreement, of such deposit and of the
information contained in any Delivery Order. Such notice shall be given in
writing, either by letter, airmail postage prepaid, or, at the request, risk
and
expense of the person making the deposit, by telex, facsimile or other means
of
electronic transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Agreement, shall as promptly as practicable execute
and deliver at the Depositary's Office to or upon the order of the person named
in such notice, ADRs registered as requested and evidencing the aggregate number
of ADSs to which such person is entitled. ADRs shall be issued only in
denomina-tions of any whole numbers of ADSs. At the request, risk and expense
of
the person depositing Shares or rights to receive Shares, the Depositary may
deliver ADRs at a place other than the Depositary's Office. ADRs may be issued
by the Depositary only under the circumstances expressly contemplated in this
Agreement.
4
|
Section
5.
|
Transfer,
Combination and Split-up of ADRs; Substitution of ADRs;
|
| Cancellation and Destruction of ADRs; Maintenance of Records; |
| Reports |
a) Transfer,
Combination and Split-up of ADRs.
Subject
to the terms and conditions of this Agreement, the Depositary shall, upon
surrender of an ADR or ADRs in form satisfactory to the Depositary at the
Depositary's Office (i) for the purpose of transfer, if such ADRs are
accompanied by such instruments of transfer as the Depositary may require and
are stamped as may be required by law, register the transfer of such ADRs on
the
Register, cancel the ADR or ADRs so delivered and execute and deliver new ADRs
to or upon the order of the person entitled thereto; and (ii) for the purpose
of
effecting a split-up or combination, cancel the ADRs so delivered and execute
and deliver a new ADR or ADRs in such denominations as may be requested,
evidencing the same aggregate number of ADSs as the ADRs surrendered.
b) Substitution
of ADRs.
The
Depositary shall execute and deliver a new ADR of like tenor in exchange and
substitution for any mutilated ADR upon cancellation thereof or in substitution
for a destroyed, lost or stolen ADR, unless the Depositary has notice that
such
ADR has been acquired by a bona
fide
purchaser, upon the Holder thereof delivering to the Depositary a request for
such execution and delivery and a sufficient indemnity bond (for the benefit
of
the Depositary and the Company) and satisfying any other reasonable requirements
imposed by the Depositary.
c) Cancellation
and Destruction of ADRs.
The
Depositary shall cancel all ADRs surrendered to it. The Depositary is authorized
to destroy ADRs so cancelled in accordance with customary practices of stock
transfer agents in The City of New York.
d) Maintenance
of Records.
The
Depositary shall maintain records of all ADRs surrendered and Deposited
Securities withdrawn under Paragraph (1) of the Form of ADR, transfers of ADRs,
substitute ADRs delivered, and cancelled or destroyed ADRs under this Section
5,
in keeping with the procedures ordinarily followed by stock transfer agents
located in The City of New York or as required by applicable law or regulation
or requirements of the NYSE.
e) Reports.
The
Depositary shall make available for inspection by Holders and Beneficial Owners
at the Depositary's Office copies of this Agreement, the Company's Articles
of
Association and any notices, reports and communications, including any proxy
soliciting materials, received from the Company which are both (a) received
by
the Depositary or the Custodian or the nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. To the extent lawful and practicable,
the
Depositary shall also, if so requested by the Company, send to Holders copies
of
such notices, reports and communications when furnished by the Company to the
Depositary pursuant to Section 11(b).
Section
6. Distributions;
Conversion of Foreign Currency; Withholding.
a) Distributions.
Upon
the receipt of any distribution on Deposited Securities, to the extent permitted
by applicable law and subject to Paragraphs (4), (7) and (9) of the Form of
ADR,
the Depositary shall distribute such distribution to each Holder, in accordance
with Paragraph (11) of the Form of ADR; provided,
however,
that
upon reasonable notice to the Depositary given by the Company (at its election)
in advance of any distribution to be made in foreign currency (including Euro),
conversion shall be effected by the Company pursuant to Paragraph 11 of the
Form
of ADR, the Company shall be responsible for establishing the appropriate rate
of distribution and the timely delivery of funds. Upon the reasonable request
of
the Depositary, in the case of a distribution other than for cash, the Company
shall deliver to the Depositary an opinion of U.S. counsel stating whether
such
distribution requires a registration statement under the Securities Act to
be in
effect or is exempt from the registration requirements of the Securities Act.
If
the filing of a registration statement is required, the Depositary shall not
have any obligation to proceed with the distribution unless it shall have
received evidence reasonably satisfactory to it that a registration statement
is
in effect which will cover the Shares to be distributed. Notwithstanding
anything else contained in this Agreement, nothing in this Agreement shall
be
deemed to obligate the Company to file any registration statement in respect
of
any proposed transaction or to endeavor to have such a registration statement
declared effective.
5
b) Conversion
of Foreign Currency.
Upon
receipt by the Depositary or the Custodian of any foreign currency in respect
of
the Deposited Securities, if at the time of its receipt such foreign currency
can in the reasonable judgment of the Depositary be converted on a practicable
basis into U.S. dollars and the resulting U.S. dollars transferred to the United
States, the Depositary shall as promptly as practicable, and in accordance
with
procedures separately agreed upon between the Company and the Depositary from
time to time, convert or cause to be converted, such foreign currency into
U.S.
dollars, and shall distribute such U.S. dollars to the Holders entitled thereto
in accordance with Paragraph (11) of the Form of ADR. 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 as it may deem in its reasonable judgment desirable. If the Depositary
determines that such foreign currency is not convertible, in whole or in part,
on a practicable basis into U.S. dollars transferable to the United States,
or
if any approval or license which is required for such conversion is denied
or in
the opinion of the Depositary is not obtainable or is not obtained within a
reasonable period or at a reasonable cost, the Depositary may distribute all
or
part of the foreign currency (or an appropriate document evidencing the right
to
receive such foreign currency) to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto. All expenses of any such
conversion (and of obtaining any applicable approvals or licenses) shall be
deducted from the proceeds thereof.
c) Withholding.
In
connection with any distribution on the Deposited Securities, each of the
Company and the Depositary shall, and the Custodian shall be instructed to,
remit to the appropriate governmental authority such amounts (if any) as it
may
be required by law to withhold and pay to such authority. The Depositary shall
forward to the Company in a timely fashion such information from its records
as
the Company may reasonably request to enable the Company to file necessary
reports with governmental authorities. The Depositary shall make reasonable
efforts to establish and maintain arrangements that assist Holders in claiming
any tax refunds, credits or other benefits (pursuant to treaty or otherwise)
relating to distributions on the ADSs. The Depositary shall provide copies
of
any filing that it makes in conjunction with any such arrangements to the
Company if so requested by the Company. The Company shall provide such
cooperation in establishing and maintaining any such arrangements as the
Depositary may reasonably request.
Section
7. Custodian.
The
Depositary shall procure that there is at all times a Custodian for the
securities held hereunder. Any Custodian in acting hereunder shall be subject
to
the direction of the Depositary and shall be responsible solely to it. The
Depositary shall be responsible for the compliance by the Custodian or
Custodians acting hereunder with the applicable provisions hereof. The
Depositary may, from time to time after consultation with the Company, appoint
one or more agents to act for it as Custodian hereunder in addition to or in
lieu of the Custodian named in the Form of ADR. Each Custodian so appointed
shall give written notice to the Company and the Depositary accepting such
appointment and, except in the case of Deutsche Bank AG, Frankfurt am Main,
Germany, agreeing to be bound by the applicable provisions hereof. Any Custodian
may resign from its duties hereunder upon 30 days' written notice to the
Depositary. The Depositary may, after consultation with the Company discharge
any Custodian at any time upon notice to such Custodian. The Depositary shall
promptly instruct any Custodian ceasing to act as Custodian to deliver all
Deposited Securities held by it to a Custodian continuing to act hereunder
and
the resignation or discharge of any Custodian shall not be effective until
such
Custodian shall have so delivered all Deposited Securities held by
it.
Section
8. Depositary's
Agents.
The
Depositary may perform its obligations hereunder through any agent appointed
by
it; provided the Depositary shall notify the Company of such appointment (other
than in the case of ministerial matters). The
Depositary may, after consultation with the Company, appoint one or more
co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign ADRs and/or a co-transfer agents for the purpose of effecting
transfers, combinations or split-ups of ADRs at designated offices in addition
to the Depositary's Office. Each co-registrar or co-transfer agent so appointed
by the Depositary shall give written notice to the Company and the Depositary
accepting such appointment and shall agree in writing to be bound by the
applicable provisions hereof. Notwithstanding the foregoing, the Depositary
shall remain responsible to monitor the performance by such agent of the
relevant services hereunder.
Section
9. Lists
of Holders and Other Information.
The
Company shall, to the extent permitted by applicable law, have the right to
inspect the Register and the transfer records of the Depositary and its agents,
take copies thereof and require the Depositary to supply copies of such records
as the Company may reasonably request. The Depositary shall, to the extent
permitted by applicable law, furnish to the Company, promptly upon the receipt
of a written request from the Company, a list of the names and addresses of,
and
holdings of ADSs by, all Holders. The Depositary shall provide copies to the
Company, promptly upon the receipt of a reasonable written request from the
Company, of any information received by the Depositary in accordance with
Paragraph (4) of the Form of ADR unless such disclosure is prohibited by
applicable law.
Section
10. Resignation
and Removal of the Depositary; Successor Depositary.
The
Depositary may resign as Depositary by written notice to the Company, or be
removed as Depositary by the Company by written notice to the Depositary and
such resignation or removal shall be effective upon the appointment by the
Company of a successor depositary and the acceptance of such appointment as
hereinafter provided, subject to the terms set forth in Paragraph (17) of the
Form of ADR. If the Depositary shall resign or be removed, the Company shall
use
its best efforts to appoint a bank or trust company having an office in The
City
of New York, as successor depositary hereunder. Every successor depositary
shall
execute and deliver to its predecessor and to the Company written acceptance
of
its appointment hereunder, and upon the execution of such acceptance such
successor depositary, shall become Depositary hereunder. Such predecessor,
on
the written request of the Company, shall execute and deliver an instrument
transferring all rights and powers hereunder, shall duly assign, transfer and
deliver all of its right, title and interest in the Deposited Securities to
such
successor, and shall deliver to such successor a list of the names and addresses
of, and holdings of ADSs by, all Holders. Any bank or trust company into or
with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer substantially all its American depositary receipt business
(including the ADR facility created pursuant to this Agreement), shall be the
successor depositary hereunder without any further action. Upon the appointment
or accession of any successor depositary hereunder, any Custodian then acting
hereunder shall forthwith become the agent hereunder of such successor
depositary and such successor depositary shall, on the written request of such
Custodian, execute and deliver to such Custodian any instruments necessary
to
give such Custodian authority as the agent hereunder of such successor
depositary.
6
Section
11. Information;
Voting
a) Articles
of Association etc.
The
Company has delivered to the Depositary and the Custodian a copy of its Articles
of Association (in English or with an English translation) and, promptly upon
any amendment thereto, the Company shall deliver to the Depositary and the
Custodian a copy (in English or with an English translation) of such amendment.
b) Notices
and Reports to Holders.
No
later than the date notice is given by the Company, by publication or otherwise,
of any corporate action including, without limitation, 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 in respect of Deposited Securities,
the Company agrees to transmit to the Depositary a copy of the notice thereof
in
the form to be given to holders of such Shares or other Deposited Securities.
To
the extent required by the rules and regulations of the Securities and Exchange
Commission or the rules and regulations of the NYSE or any other securities
exchange or market upon which the ADSs may be listed or traded, the Company
will
arrange for the translation into English and the prompt transmittal to the
Depositary of a sufficient number of copies of such notices and of any other
notices, reports and communications which are generally made available by the
Company to holders of Shares to enable the Depositary to mail copies thereof
to
all Holders in a timely manner. The Depositary shall make such communications
available to Holders in accordance with Paragraph (10) of the Form of ADR;
provided, that, upon the reasonable request of the Depositary, the Company
shall
first deliver to the Depositary an opinion of U.S. counsel stating that the
distribution of such communication does not violate U.S. laws.
The
Depositary will arrange for the prompt transmittal by the Custodian to the
Depositary of such notices and any other reports and communications which are
received by the Custodian as the holder of the Deposited Securities and, if
so
requested by the Company, arrange for the prompt mailing of copies thereof
to
all Holders to the extent not previously mailed as provided in the immediately
preceding paragraph or arrange for the mailing of proper documentation seeking
instructions from the Holders as to the action they wish the Depositary to
take
in respect of Deposited Securities represented by the ADSs evidenced by the
ADRs
held by such Holders. Subject to Paragraph (9) of the Form of ADR, all such
other mailings shall be at the expense of the Company.
c) Voting.
Upon
timely receipt of notice from the Company of a notice of meeting or solicitation
of consent or proxies of holders of Shares, the Depositary shall take the
actions set forth under Paragraph (13) of the Form of ADR. The Company agrees
with the Depositary that it shall not request the Depositary to solicit voting
instructions, consent or proxies if such solicitation would violate U.S. laws.
Upon the reasonable request of the Depositary, the Company shall deliver to
the
Depositary an opinion of counsel stating that such solicitation of consent
or
proxies does not violate U.S. laws. If the Company does not timely deliver
such
notice or does not deliver such opinion upon the reasonable request of the
Depositary, the Depositary shall not have any obligation to forward any
information or notice in respect to such meeting or solicitation of consents
or
proxies to the Holders.
7
Section
12. Indemnification.
a) Indemnification
by the Company.
The
Company agrees to indemnify the Depositary and its officers and directors
against any loss, liability or expense (including, but not limited to,
reasonable fees and expenses of counsel) that may arise out of (x) its
acceptance and performance of its powers and duties contemplated in this
Agreement, except to the extent such loss, liability or expense (i) is due
to
the negligence or bad faith of the Depositary or its agents or (ii) arises
out
of a Pre-Release of an ADR unless such Pre-Release was requested in writing
by
the Company or (y) any offer, sale, deposit or withdrawal of ADRs, ADSs, Shares
or other Deposited Securities or any registration statement under the Securities
Act in respect thereof or any information regarding the Company furnished by
the
Company except to the extent such loss, liability or expense arises out of
information (or omissions from such information) relating to the Depositary
furnished in writing to the Company by the Depositary expressly for use in
such
registration statement.
b) Indemnification
by the Depositary.
The
Depositary agrees to indemnify the Company, its officers and directors against
any loss, liability or expense (including reasonable fees and expenses of
counsel) incurred by the Company in respect of this Agreement to the extent
such
loss, liability or expense is due to the negligence or bad faith of the
Depositary or its agents appointed hereunder.
In
no
event shall the Depositary or any of its agents be liable for any indirect,
special, consequential or punitive damages.
c) Notification
and Settlement.
Any
person seeking indemnification hereunder (an "indemnified person ") shall notify
the person from whom it is seeking indemnification (the "indemnifying person")
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person's rights
otherwise than under this Section 12) and shall consult in good faith
with
the indemnifying person as to the conduct of the defense of such action or
claim, which shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any indemnifiable action or claim without the prior
written consent of the indemnifying person (which consent shall not be
unreasonably withheld).
d) Survival.
The
obligations set forth in this Section 12 shall survive the termination of this
Agreement.
Section
13. Notices.
Notice
to
any Holder shall be deemed given when first mailed, first class postage prepaid,
or sent via telex or facsimile transmission to such Holder to the address or
telex or facsimile number, as the case may be, of such Holder in the Register.
Notice to the Depositary or the Company shall be deemed given when first
received by it at the address or facsimile transmission number set forth in
(a)
or (b) below, respectively, or at such other address or facsimile transmission
number as either may specify to the other by written notice:
8
|
(a)
|
Deutsche
Bank Trust Company Americas
|
| 00 Xxxx Xxxxxx |
| Xxx Xxxx, Xxx Xxxx 00000 |
| X.X.X. |
| Attention: Depositary Receipts Department; |
| Fax: 000-000-0000 |
|
(b)
|
Deutsche
Telekom Aktiengesellschaft
|
| Xxxxxxxxx-Xxxxx-Allee 140 |
| Xxxxxxxx 00 00 |
| 00000 Xxxx Xxxxxxx |
| Attention: Head of Investor Relations |
| Fax: 000-00-000-000-00000 |
With
a
courtesy copy (which shall not be required for any notice hereunder to be
effective) to:
Deutsche
Telekom, Inc.
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
XXX
Attention:
Investor Relations
Fax:
000-000-0000
Notices
to the Depositary must be in English.
Section
14. Miscellaneous.
This
Agreement is for the exclusive benefit of the Company, the Depositary, the
Holders, the Beneficial Owners, and their respective successors hereunder,
and
shall not give any legal or equitable right, remedy or claim whatsoever to
any
other person. If any such provision is invalid, illegal or unenforceable in
any
respect, the remaining provisions shall in no way be affected thereby. This
Agreement may be executed in two counterparts, each of which shall be deemed
an
original and both of which shall constitute one instrument.
Section
15. Binding
Effect
The
Holders and the Beneficial Owners of ADSs from time to time shall be parties
to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and the ADRs issued hereunder by accepting an ADS.
Section
16. No
Partnership or Joint Venture
Nothing
in this Deposit Agreement shall be deemed to give rise to a partnership or
joint
venture nor establish a fiduciary or similar relationship among the parties.
The
parties hereto acknowledge and agree that (a) the Depositary and its affiliates
may at any time have multiple banking relationships with the Company and its
affiliates, (b) the Depositary and its affiliates may be engaged at any time
in
transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (c) nothing contained in this Deposit
Agreement shall (i) preclude the Depositary or any of its affiliates from
engaging in such transactions or establishing or maintaining such relationships
or (ii) obligate the Depositary or any of its affiliates to disclose such
transactions or relationships or to account for any profit made or payment
received in such transactions or relationships.
9
Section
17. Governing
Law.
This
Agreement and the ADRs shall be governed by and construed in accordance with
the
laws of the State of New York.
Section
18. Compliance
With U.S. Securities Laws
Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the United States 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.
10
IN
WITNESS WHEREOF, DEUTSCHE TELEKOM AG and DEUTSCHE BANK TRUST COMPANY AMERICAS
have duly executed this Deposit Agreement as of the day and year first above
set
forth and all Holders and Beneficial Owners of ADRs shall become parties hereto
upon acceptance by them of ADR (or interests therein) issued in accordance
with
the terms hereof.
| DEUTSCHE TELEKOM AG | ||
| By _______________________ | ||
|
Name:
|
||
|
Title:
|
||
| By _______________________ | ||
|
Name:
|
||
|
Title:
|
||
| DEUTSCHE BANK TRUST COMPANY | ||
| AMERICAS | ||
| By _______________________ | ||
|
Name:
|
||
|
Title:
|
||
| By _______________________ | ||
|
Name:
|
||
|
Title:
|
11
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS
| ____________ |
No.
of ADSs:
|
|
| Number |
____________________
|
|
|
Each
ADS represents One
|
||
|
Ordinary
Share
|
||
|
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES, WITH NO NOMINAL VALUE EACH,
of
(Incorporated
under the
laws
of
the Federal Republic of Germany)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary hereunder (the "Depositary"),
hereby certifies that ____________ is the registered owner (a "Holder")
of
_____ American Depositary Shares ("ADSs"),
each
(subject to Paragraphs (11) and (14)) representing one ordinary share, with
no
nominal value each, including, subject to Paragraph (5) below, rights to receive
Shares (together "Shares"
and,
together with any additional securities or cash from time to time held by the
Depositary or the Custodian referred to below in respect or in lieu thereof,
the
"Deposited
Securities"),
of
DEUTSCHE TELEKOM AG, a corporation incorporated under the laws of the Federal
Republic of Germany (the "Company"),
deposited at Deutsche Bank AG, Frankfurt am Main,Germany as custodian (subject
to Section 7 of the Agreement referred to below, the "Custodian").
This
ADR is issued pursuant to the Amended and Restated Deposit Agreement dated
as of
November __, 2005 (as hereinafter amended from time to time, the "Agreement")
among
the Company, the Depositary and all Holders and Beneficial Owners from time
to
time of American Depositary Shares ("ADSs") evidenced by American Depositary
Receipts issued thereunder ("ADRs"),
each
of whom by accepting an ADS agrees to become a party thereto and to be bound
by
all of the terms and conditions thereof and hereof. Copies of the Agreement
are
on file at the Depositary's Office referred to below and at the office of the
Custodian. This ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York. The terms and conditions of the Agreement are hereby
incorporated by reference.
II
-
1
(1) Withdrawal
of Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), upon surrender of this ADR in form satisfactory
to the Depositary and accompanied by such instruments of transfer as the
Depositary may require at the Depositary's Office referred to below, the Holder
hereof is entitled to delivery, as promptly as practicable, (i) in the case
of
Shares and other Deposited Securities that are eligible for deposit with
Clearstream Banking AG ("CSB"),
to an
account designated by such Holder with CSB and (ii) in the case of Deposited
Securities that are not eligible for deposit with CSB, at the office of the
Custodian, in each case of the whole number of Shares and other Deposited
Securities at the time underlying this ADR. The Depositary shall not accept
for
surrender an ADR evidencing ADSs representing less than one Share. If, at the
time of surrender, the number of Shares and other Deposited Securities
underlying this ADR is other than a whole number, the Holder hereof will be
entitled to delivery, as provided above, of the whole number of Shares and
other
Deposited Securities underlying this ADR, and the cash proceeds of any
fractional entitlement.
(2) Register.
The
Depositary shall keep, at or through the office of the Depositary at which
at
any particular time its depositary receipt business is administered, (the
"Depositary's
Office"),
(a) a
register (the "Register")
for
the registration, registration of transfer, combination and split-up of ADRs,
which at all reasonable times shall be open for inspection by Holders solely
for
the purpose of communicating with Holders in the interest of the business of
the
Company or a matter related to the Agreement and (b) facilities for the delivery
and receipt of ADRs. The Register shall be established and maintained by the
Depositary for registration of such ADRs in accordance with any applicable
law,
regulation or requirement of the NYSE or any applicable rule or regulation
of
any other securities exchange or market upon which the ADSs may be listed or
traded. Subject to the foregoing and Paragraph (4), the Depositary may close
the
Register at any time or from time to time when reasonably deemed expedient
by it
after consultation with the Company where reasonably practicable, or when
requested by the Company.
(3) Title
to ADRs; Validity.
Title
to this ADR, when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of
a
negotiable instrument under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless executed
by
the Depositary by the manual signature of a duly authorized signatory of the
Depositary; provided, however, that such signature may be facsimile if such
ADR
is countersigned by the manual signature of a duly authorized signatory of
the
registrar appointed for such purpose by the Depositary and dated by such
signatory.
(4) Certain
Limitations.
As a
condition precedent to the issue or registration of any ADR (including upon
a
transfer, split-up or combination), any distribution in respect thereof or
the
withdrawal of any Deposited Securities, the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge and (ii) any transfer or
registration fees charged by third parties for the transfer of any Deposited
Securities, (b) the production of (i) proof satisfactory to it of the identity
and genuineness of any signature and (ii) such other information as it may
deem
necessary or proper consistent with the Agreement; and (c) compliance with
such
regulations as the Depositary may establish consistent with the Agreement.
From
time to time, the Company, the Depositary or the Custodian may also require
such
information as it may deem necessary or proper consistent with the Agreement.
After consultation with the Company, where reasonably practicable, the issuance
of ADRs, the acceptance of deposits of Shares or the registration of transfers
of ADRs may be suspended, generally or in particular instances, when the
Register or CSB is closed or when any such action is reasonably deemed expedient
by the Depositary. Registrations of transfers of ADRs and withdrawals of
Deposited Securities shall also be suspended when requested by the Company,
including for the purpose of facilitating orderly voting of the Deposited
Securities. Notwithstanding any other provision of the Agreement or this ADR,
the withdrawal of Deposited Securities may be restricted only for the reasons
set forth in General Instruction I.A.(1) of Form F-6 under the U.S. Securities
Act of 1933, as amended (the "Securities
Act")
and no
amendment shall impair such requirements.
II
-
2
(5) Pre-release.
Subject
to the further terms and provisions of this Paragraph (5), the Depositary,
its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity
as
Depositary, the Depositary shall not lend Shares or ADSs, provided, however,
that the Depositary may, unless requested by the Company in writing to cease
doing so, (i) issue ADSs prior to the receipt of Shares (each such transaction
a
"Pre-Release
Transaction")
as
provided below and (ii) deliver Shares upon the receipt and cancellation of
ADSs
that were issued in a Pre-Release Transaction, but for which Shares may not
yet
have been received. The Depositary may receive ADSs in lieu of Shares under
(i)
above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant")
to
whom ADSs or Shares are to be delivered (1) represents that at the time of
the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(2) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (4) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized (marked to market daily) with cash, United States government
securities or such other collateral with substantially similar liquidity and
security, (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 Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any
one
time to thirty percent (30%) of the ADSs outstanding (without giving effect
to
ADSs outstanding under (i) above), provided,
however,
that
the Depositary reserves the right to disregard such limit from time to time.
The
Depositary will also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case-by-case
basis
as it deems appropriate.
Without
limitation of the foregoing, the Depositary confirms to the Company that it
shall not deliver Shares prior to receipt by it of the Receipts evidencing
such
Shares.
The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above,
but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant). To the extent not otherwise readily available to the
Company, the Depositary will notify the Company as soon as practicable after
the
end of each month of the aggregate pre-release balance as of the end of the
preceding month.
(6) Representations
and Warranties.
Every
person depositing Shares under the Agreement is deemed to represent and warrant
that such Shares are validly issued and outstanding, fully paid, nonassessable
and were not acquired in violation of any pre-emptive rights, that the person
making such deposit is duly authorized to do so and that such Shares are not
subject to any other restriction on sale, transfer or deposit under the laws
of
the United States, the Federal Republic of Germany, or under a shareholders
agreement, or the Articles of Incorporation or any applicable regulations of
any
securities exchange. Such representations and warranties shall survive the
deposit of Shares and the issuance and cancellation of this ADR. If any such
representations or warranties are incorrect in any respect, the Company and
the
Depositary shall be authorized, at the cost and expense of the person depositing
such Shares, to take any and all actions necessary to correct the consequences
thereof, whether or not the person who deposited the Shares is at the time
of
such action the Holder or a Beneficial Owner of the ADSs representing such
shares.
(7) Information
and Taxes.
The
Holders and Beneficial Owners may be required from time to time to file such
proof of taxpayer status or residence, including executing certifications
thereof, or to provide any information that the Depositary, Custodian or Company
may request with respect to such status. If any tax or other governmental charge
shall become payable by or on behalf of the Custodian or the Depositary with
respect to this ADR, any ADSs evidenced by this ADR, any Deposited Securities
underlying this ADR or any distribution on any of the foregoing, such tax or
other governmental charge shall be paid by the Holder hereof to the Depositary.
The Depositary may refuse to effect any delivery of ADSs, registration of this
ADR, distribution of cash or other property or any withdrawal of the underlying
Deposited Securities until proof of such payment is available to the Depositary.
The Depositary may also deduct from any distribu-tions on or in respect of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof all or any part of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge. The Holder hereof shall remain liable for any
deficiency. Upon any such sale, the Depositary shall, if appropriate, reduce
the
number of ADSs evidenced hereby to reflect any such sale and shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such tax or other governmental charge to the Holder
hereof.
In
the
event that the Depositary undertakes efforts to assist the Holders in obtaining
a refund of withholding tax pursuant to the tax treaty between the United States
and the Federal Republic of Germany or between Canada and the Federal Republic
of Germany, the Holders will indemnify and hold harmless the Depositary, its
officers, employees, agents and affiliated companies against all taxes,
interest, penalties, and/or additions to tax arising out of claims filed by
the
Depositary on behalf of the Holders seeking a refund of taxes withheld or any
other tax benefit obtained by the Depositary, Custodian or Company for the
Holders.
II
-
3
(8) Disclosure
of Interests.
Notwithstanding
any other provision of the Deposit Agreement or this ADR, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with all
applicable provisions of German law, the rules and requirements of the Frankfurt
Stock Exchange and any other stock exchange on which the Shares are, or will
be
registered, traded or listed and the Company's Articles of Association regarding
the notification of any such Holder or Beneficial Owner's interest in Shares
(including the aggregate of ADSs and Shares held by each such Holder or
Beneficial Owner)to the Company, in compliance with Sections 21 and 22 of the
German Securities Trading Act (Wertpapierhandelsgesetz)
and
Section 20 of the German Stock Corporation Act (Aktiengesetz),
or any
substitute or supplemental provision of German law that may be enacted from
time
to time. Each Holder and Beneficial Owner of the ADSs represented hereby
acknowledges that, at the date of the Agreement, the statutory notification
obligations of the Securities Trading Act apply to anyone whose holding, either
directly or by way of imputation pursuant to the provisions of Section 22 of
the
German Securities Trading Act, of voting rights in the Company reaches or
exceeds 5%, 10%, 25%, 50% or 75% or, after having reached or exceeded any such
threshold, falls below that threshold. Each Holder and Beneficial Owner of
the
ADSs represented hereby acknowledges that failure to provide on a timely basis
any required notification of an interest in Shares may result in withholding
of
certain rights, including voting and dividend rights, in respect of the Shares
in which such Holder or Beneficial Owner has an interest. In
order
to enforce such legal sanctions for failure to notify, the Company reserves
the
right to instruct Holders, and Holders hereby agree, to deliver their ADSs
for
cancellation and withdrawal of the Deposited Securities so as to permit the
Company to deal directly with the Holder thereof as a holder of Shares.
Each
Holder and Beneficial Owner further agrees to furnish the Company with any
such
notification made in accordance with this Paragraph (8) and to comply with
requests from the Company pursuant to the laws of Germany, the rules and
requirements of the XETRA Stock Exchange or any other stock exchange on which
the Shares are or will be registered, traded or listed, or the Company's
Articles of Association, which are made to provide information as to the
capacity in which such Holder or Beneficial Owner owns (or owned) ADSs and
regarding the identity of any other person interested in such ADSs and the
nature of such interest and various other matters and
such
agreement shall survive any disposition of such Holder’s interest in Shares or
ADRs
. The
Depositary agrees to use reasonable efforts to forward any such requests to
the
Holders and to forward to the Company any such responses to such requests
received by the Depositary and
to
use its reasonable efforts, at the Company’s request, to assist the Company in
obtaining such information with respect to the ADSs, provided that nothing
herein shall be interpreted as obligating the Depositary to provide or obtain
any such information not provided to the Depositary by such Holders or such
former Holders.
(9) Charges
of Depositary.
The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement; provided, however, that no fees shall be payable
upon distribution of cash dividends or for the operation and maintenance
services of the Depositary so long as the charging of such fees is prohibited
by
the exchange, if any, upon which the ADSs are listed: (i) to any person to
whom
ADSs are issued upon the deposit of Shares or to any person to whom a
distribution is made in respect of ADS distributions pursuant to stock dividends
or other free distributions of stock, bonus distributions, stock splits or
other
distributions (except where converted to cash), a fee not in excess of U.S.
$
5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the Deposit
Agreement to be determined by the Depositary; (ii) to any person surrendering
ADSs for cancellation and withdrawal of Deposited Securities including,
inter
alia,
cash
distributions made pursuant to a cancellation or withdrawal, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered; (iii) to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are traded, to any Holder of ADSs, a fee not in excess of U.S. $0.02 per
ADS held for the distribution of cash proceeds, including cash dividends or
sale
of rights and other entitlements, not made pursuant to a cancellation or
withdrawal; (iv) to any Holder of ADSs, a fee not in excess of U.S. $ 5.00
per
100 ADSs (or portion thereof) issued upon the exercise of rights; and (v) 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 Holders as of the date or dates set by the Depositary in
accordance with paragraph (12) of the Form of ADR and shall be payable at the
sole discretion of the Depositary by billing such Holders for such charge or
by
deducting such charge from one or more cash dividends or other cash
distributions).
II
-
4
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit
and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges to the extent attributable to
or
associated with such deposit, surrender or withdrawal: (a) taxes (including
applicable interest and penalties) and other governmental charges; (b) such
registration fees as may from time to time be in effect for the registration
of
Shares or other Deposited Securities with the registrar for such Shares or
other
Deposited Securities and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any nominees
upon the making of deposits and withdrawals, respectively; (c) such cable,
telex, facsimile and electronic transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and Beneficial Owners of ADSs;
(d)
the expenses and charges incurred by the Depositary in the conversion of foreign
currency; (e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs and
ADRs; (f) the fees and expenses incurred by the Depositary in connection with
the registration and/or delivery of Deposited Securities, including any fees
of
a central depository for securities in the local market, where applicable;
and
(g) any additional fees, charges, costs or expenses that may be incurred by
the
Depositary or the Custodian from time to time.
Any
other
charges and expenses of the Depositary hereunder will be paid by the Depositary
and reimbursed by the Company in accordance with agreements in writing to be
entered into between the Depositary and the Company from time to time.
Notwithstanding the foregoing, the charges and expenses of any Custodian
hereunder are for the sole account of the Depositary.
(10) Available
Information.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the Securities
and Exchange Commission (the "Commission"). Such reports are available for
inspection and copying by Holders and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 X. Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000. The Depositary shall make available for inspection
by
Holders at the Depositary's Office copies of the Deposit Agreement (which shall
also be available at the office of the Custodian), the Company's Articles of
Association and, to the extent lawful, any notices, reports and communications,
including any proxy soliciting materials, received from the Company or the
Depositary which are both (a) received by the Depositary or the Custodian or
the
nominee of either as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
To the extent lawful and practicable, the Depositary shall also send to Holders
copies of such notices, reports and communications when furnished by the Company
to the Depositary pursuant to the Agreement and if so requested by the Company.
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, if any, required by the rules and regulations of the
Securities Exchange Commission or the rules and regulations of the NYSE or
any
other securities exchange or market upon which the ADSs may be listed or traded.
The Depositary will keep books for the registration of ADRs and their transfer
which at all reasonable times will be open for inspection by the Company and
Holders, provided that such inspection shall not be for the purpose of
communicating with Holders in the interest of a business or object other than
the business of the Company or a matter related to the Agreement or the
ADRs.
II
-
5
| Dated: | DEUTSCHE BANK TRUST COMPANY | |
| AMERICAS | ||
| By _____________________________ | ||
|
Authorized
Signatory
|
||
| Countersigned by: | ||
| ________________ | ||
| Authorized Signatory |
The
Depositary's Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
II
-
6
[FORM
OF
REVERSE OF RECEIPT]
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Agreement and to the Paragraphs
(4),
(7) and (9) hereof, the Depositary shall as promptly as practicable distribute
to each Holder entitled thereto on the record date set by the Depositary
therefor, in proportion to the number of ADSs held by such Holder:
(a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this Paragraph (11) ("Cash"),
on an
averaged or other practicable basis, subject to appropriate adjustments for
(i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's fees and expenses set forth in Paragraph (9) hereof. The
Company may elect, but is not obligated, to convert any such dividend or
distribution into U.S. dollars on behalf of the Holders, either (x) through
distribution of U.S. dollars rather than Euro to the Depositary or (y) upon
reasonable notice to the Depositary given in advance of any such dividend or
distribution, through payment to the Depositary given in advance of any such
dividend or distribution, through payment to the Depositary of the number of
U.S. dollars equivalent (as reasonably determined by the Company on the basis
of
market rates prevailing on the date of the distribution) to the number of Euro
received by the Depositary pursuant to such dividend or distribution, in
exchange for such Euro (such U.S. dollar amounts to then be distributed by
the
Depositary pursuant to this Paragraph 11). Only whole U.S. dollars and cents
will be distributed (any fractional cents being withheld without liability
and
dealt with by the Depositary in accordance with its then current procedures).
By
holding an ADR or an interest therein, Holders and Beneficial Owners acknowledge
that in converting foreign currency, amounts received on conversion are
calculated at a rate which may exceed the number of decimal places used by
the
Depositary to report distribution rates (which in any case will not be less
than
two decimal places). Any excess amount may be retained by the Depositary as
an
additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
(b Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share
Distribution")
subject to appropriate adjustments for (A) such distribution being unlawful
or
impracticable with respect to certain Holders, and (B) deduction of the
Depositary's fees and expenses set forth in Paragraph (9) hereof and (ii) U.S.
dollars available to it resulting from the net proceeds of sales of Shares
received in a Share Distribution, which Shares would give rise to fractional
ADSs if additional ADRs were issued therefor, as in the case of Cash. The
Depositary, with the prior written consent of the Company, may change or cause
to be changed, as of the record date set in accordance with paragraph (12)
hereof, the ratio of ADSs to Shares to reflect the additional Shares so
distributed and deposited.
(c) Rights.
(i) To
the extent the Company so instructs and timely furnishes to the Depositary
evidence (the Company having no obligation to so furnish such evidence)
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same and, to the extent reasonably practicable, warrants or other instruments
representing rights to acquire additional ADRs in respect of any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a distribution on Deposited Securities ("Rights"),
or
(ii) to the extent the Company does not furnish such evidence and/or so
instructs the Depositary or to the extent Rights are about to lapse as a result
of non-exercise and sales of Rights are practicable as determined by the
Depositary after consultation with the Company (which sales shall be effected
as
promptly as practicable) and, any U.S. dollars available to the Depositary
constituting the net proceeds of sales of Rights (after deduction of the
Depositary's expenses), as in the case of Cash, or (iii) failing either (i)
or
(ii), nothing (and any Rights may lapse). There can be no assurance that Holders
or Beneficial Owners generally, or any Holder or Beneficial Owner in particular,
will be given the opportunity to exercise rights on the same terms and
conditions as the holders of the Shares or will be able to exercise such rights.
Nothing herein shall obligate the Company to file a registration statement
in
respect of any rights or Shares or other securities to be acquired in the
exercise of such rights.
II
-
7
(d) Elective
Distribution in Cash or Shares.
Whenever the Company intends to distribute a dividend payable at the election
of
the Holders in cash or in Shares, the Company shall give notice thereof to
the
Depositary at least 60 days prior to the proposed distribution stating whether
or not it wishes such elective distribution to be made available to Holders.
Upon receipt of notice indicating that the Company wishes such elective
distribution to be made available to Holders, the Depositary shall consult
with
the Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonable practicable to make such
elective distribution available to the Holders. The Depositary shall make such
elective distribution available to Holders only
if (i)
the Company shall have furnished to the Depositary satisfactory documentation
and (ii) the Depositary shall have determined that such distribution is
reasonably practicable. If the above conditions are not satisfied, the
Depositary shall distribute to the Holders, on the basis of the same
determination as is made in the local market in respect of the Shares for which
no election is made, either (i) cash upon the terms described in Paragraph
(11)(a) or (ii) additional ADSs representing such additional Shares. If the
above conditions are satisfied, the Depositary shall establish an ADS record
date and establish procedures to enable Holders to elect the receipt of the
proposed dividend in Cash or in Shares (represented by ADSs). The Company shall
assist the Depositary in establishing such procedures to the extent reasonably
necessary. If a Holder elects to receive the proposed dividend (i) in cash,
the
dividend shall be distributed upon the terms described in Paragraph (11)(a),
or
(ii) in Shares, the dividend shall be distributed upon the terms described
in
Paragraph (11)(b).
(e) Other
Distributions.
(i)
Securities available to the Depositary resulting from any distribution on
Deposited Securities other than Cash, Share Distributions and Rights
("Other
Distributions"),
by
any means that the Depositary may deem, after consultation with the Company
and
receipt of an opinion of counsel satisfactory to the Depositary, lawful and
practicable, or (ii) to the extent the Depositary deems after consultation
with
the Company distribution of such securities not to be lawful, equitable or
practicable, any U.S. dollars available to the Depositary constituting the
net
proceeds (after deduction of the Depositary's fees and expenses) of the sale
of
Other Distributions, as in the case of Cash.
To
the
extent that the Depositary determines, after consultation with the Company
that
any distribution is not lawful or practicable with respect to any Holder, the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities),
or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment thereof).
Notwithstanding
anything herein to the contrary, the Company shall have no obliga-tion to either
(i) register any ADSs, Shares, Rights or other securities described in this
Paragraph (11) under the Securities Act or (ii) take other actions to permit
the
distribution of such ADSs, Shares, Rights or other securities in accordance
with
applicable U.S. securities laws (except that the Company shall cooperate with
the Depositary to register additional ADSs on Form F-6 if deemed desirable
by
the Depositary).
II
-
8
(12) Record
Dates.
The
Depositary shall fix a record date (which date shall (a) in the case of a
distribution, unless otherwise agreed by the Company be the same date as the
distribution date fixed by the Company, and (b) in all other circumstances
be
fixed after consultation with the Company to the extent practicable in each
case
subject to the requirements of applicable law and the New York Stock Exchange)
for the determination of the Holders who shall be entitled to receive any
distribution on or in respect of Deposited Securities, to give instructions
for
the exercise of any voting rights, who shall be responsible for any fee assessed
by the Depositary pursuant to the Deposit Agreement or this ADR, to receive
any
notice or to act in respect of other matters, and only Holders of record on
the
close of business on such date shall be so entitled or obligated.
(13) Voting
of Deposited Securities.
As
promptly as practicable after receipt from the Company of notice of any meeting
or solicitation of consents or proxies of holders of Deposited Securities,
the
Depositary shall, subject to applicable law and the Company's Articles of
Association, and if so required by the Company, mail at the Company's expense
to
Holders (for forwarding to Beneficial Owners) a notice (the "Notice")
(a)
containing such information as is contained in the notice or solicitation sent
by the Company to the Depositary, (b) stating that each Holder on the record
date set by the Depositary therefor will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the whole number
of Deposited Securities underlying such Holder's ADRs and (c) specifying how
and
when such instructions may be given. Upon receipt of instructions of a Holder
on
such record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the Company's Articles of
Association and the provisions of or governing Deposited Securities, to vote
or
cause to be voted the Deposited Securities underlying such Holder's ADRs in
accordance with such instructions. Upon the request of a Holder who has not
previously given instructions as to the exercise of voting rights pertaining
to
the Deposited Securities underlying such Holder's ADRs, and subject to
compliance with any reasonable regulations the Depositary may establish (which
may include the deposit or blocking of transfers of such Holder's ADRs), the
Depositary will endeavor to obtain from the Company for such Holder (or a person
designated by such Holder) the documentation necessary to attend a meeting
of
holders of Deposited Securities and to vote thereat.
The
Depositary shall not vote or cause to be voted Deposited Securities other than
in accordance with such instructions or deemed instructions received from
Holders of ADRs.
The
Depositary will endeavor to ensure that on any date on which it votes or causes
to be voted Deposited Securities pursuant to this Paragraph (13), it will have
on deposit under the Agreement the number of Deposited Securities with respect
to which it has received voting instruc-tions from Holders. In the event that
the record date set by the Depositary precedes the German record date, upon
the
withdrawal of the Deposited Securities evidenced by an ADR, the Depositary
will
require the Holder of such ADR to certify that such Holder has not voted and
will not vote such ADR. If despite such certification requirement, on any such
date, the number of Deposited Securities on deposit under the Agreement is
less
than the number of Deposited Securities with respect to which the Depositary
has
received voting instructions, the Depositary shall vote or cause to be voted
such Deposited Securities in accordance with such instructions adjusting the
number of Deposited Securities voted on a pro-rated
basis.
(14) Changes
Affecting Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), upon any change in nominal or par value,
split-up or consolidation or other reclassification of Deposited Securities,
any
Share Distribution or Other Distribution not distributed to Holders in
accordance with Paragraph (11), or any recapitalization, reorganization, merger,
liquidation or similar corporate event or sale of all or substantially all
the
assets of the Company, any cash or securities received by the Depositary in
respect of any Deposited Securities shall constitute Deposited Securities
hereunder, and each ADS evidenced by this ADR shall automatically represent
its
pro rata
interest
in the Deposited Securities as then constituted. In any such case, the
Depositary may (with the cooperation of the Company), and shall if the Company
so requests, to the extent legally permitted, distribute any part of the cash
or
securities so received or execute and deliver additional ADRs or call for the
surrender of outstanding ADRs to be exchanged for new ADRs describing the new
Deposited Securities.
II
-
9
(15) Exoneration.
The
Depositary, the Company, their respective officers, directors, affiliates and
agents and each of them shall: (a) incur no liability (i) if any present or
future law, rule, or regulation, the provisions of or governing any Deposited
Security, any present or future provision of the Company's constituent
documents, any act of God, war, terrorism or other circumstance beyond its
control shall prevent, delay or subject to any civil or criminal penalty any
act
that the Agreement or this ADR provides shall be done or performed by it, or
(ii) by reason of any exercise or failure to exercise any discretion given
it in
the Agreement or this ADR; (b) assume no liability to Holders, Beneficial Owners
or third parties except to perform its obligations to the extent they are
specifically set forth in this ADR and the Agreement without gross negligence
or
willful misconduct; (c) be under no obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of any Deposited Securities
or
this ADR which in its opinion may involve expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished as often
as
may be required; (d) not be liable for any action or inaction by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, Beneficial Owner or any other person
in each case believed by it in good faith to be competent to give such advice
or
information; and (e) incur no liability for the creditworthiness of any third
party. The Depositary, the Company and their respective agents may rely and
shall be protected in acting upon any written notice, request, direction or
other document believed by them in good faith to be genuine and to have been
signed or presented by the proper party or parties. The Depositary and its
agents shall not be responsible for any failure to carry out any instructions
to
vote any of the Deposited Securities, for the manner in which any such vote
is
cast or for the effect of any such vote. The Depositary, its agents and their
affiliates may own and deal in any class of securities of the Company and its
affiliates and in ADRs. The Company has agreed to indemnify the Depositary
under
certain circumstances and the Depositary has agreed to indemnify the Company
under certain circumstances. In no event shall the Company or the Depositary
or
any of their respective agents be liable to any Holder, Beneficial Owner or
any
other third party for any indirect, special, consequential or punitive damages.
Notwithstanding the foregoing or any thing to the contrary herein, no disclaimer
of liability under the Securities Act is intended by any provision hereof or
of
the Agreement.
(16) Amendment.
Subject
to the last sentence of Paragraph (4), the ADRs and the Agreement may be amended
by the Company and the Depositary without consent of the Holders or Beneficial
Owners, provided
that any
amendment that imposes or increases any fees or charges (other than charges
listed in clauses (a) through (g) of Paragraph (9)), or that shall otherwise
prejudice any substantial existing right of Holders or Beneficial Owners, shall
become effective 30 days after notice of such amendment shall have been given
to
the Holders,
provided
that,
the parties hereto agree that any amendments which (i) are reasonably necessary
(as agreed by the Company and the Depositary) in order for ADSs or Shares to
be
traded solely in electronic book-entry form and (ii) do not impose or increase
any fees or charges to be borne by Holders, shall be deemed not to prejudice
any
substantial rights of Holders. Notwithstanding
the foregoing, if any governmental or regulatory body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary may amend or supplement the Deposit Agreement and the ADR at any
time
in accordance with such changed laws, rules or regulations. Such amendment
or
supplement to the Deposit Agreement in such circumstances shall become effective
at the earlier of (i) 30 days after a notice of such amendment or supplement
is
given to Holders or (ii) at such earlier time, if any, as compliance by the
Company or Depositary with any such new laws, rules or regulations becomes
mandatory. Every Holder and Beneficial Owner, at the time any amendment so
becomes effective, shall be deemed, by continuing to hold an ADR, to consent
and
agree to such amendment and to be bound by the ADRs and the Agreement as amended
thereby.
II
-
10
(17) Termination.
The
Depositary shall, at the written direction of the Company, terminate the
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Agreement, after giving notice to the Holders
as
set forth in the preceding sentence of this Paragraph (17) at any time 90 days
or more after the Depositary shall have delivered to the Company its written
resignation or after the Company shall have removed the Depositary provided
that
no successor depositary shall have been appointed and accepted its appoint-ment
as provided in Section 10 of the Agreement before the end of such 45 days.
After
the date so fixed for termination, the Depositary shall be required to perform
no further acts under the Agreement and this ADR, except to advise Holders
of
such termination, receive and hold (or sell) distributions on Deposited
Securities and deliver Deposited Securities being withdrawn together with any
such distributions on Deposited Securities as provided herein. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold the
net
proceeds of such sales, together with any other cash then held by it under
the
Deposit Agreement, without liability for interest, for the pro
rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Agreement
and this ADR, except to account for such net proceeds and other cash and its
indemnification obligations to the Company. After the date so fixed for
termination, the Company shall be discharged from all obligations under the
Agreement except for its indemnification and payment obligations to the
Depositary.
II
-
11
