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Exhibit 2.1
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BASF AKTIENGESELLSCHAFT
and
THE BANK OF NEW YORK
As Depositary
and
HOLDERS OF
AMERICAN DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
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Dated as of December 1, 1999
As Amended and Restated as of ____________, 2000
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ARTICLE 1. DEFINITIONS......................................................1
SECTION 1.1. AMERICAN DEPOSITARY SHARES.....................................1
SECTION 1.2. COMMISSION.....................................................2
SECTION 1.3. COMPANY........................................................2
SECTION 1.4. CONSULTATION...................................................2
SECTION 1.5. CUSTODIAN......................................................2
SECTION 1.6. DELIVER, DELIVERY..............................................2
SECTION 1.7. DEPOSIT AGREEMENT..............................................2
SECTION 1.8. DEPOSITARY.....................................................2
SECTION 1.9. DEPOSITED SECURITIES...........................................3
SECTION 1.10. DOLLARS, EUROS..............................................3
SECTION 1.11. FOREIGN CURRENCY............................................3
SECTION 1.12. GERMANY.....................................................3
SECTION 1.13. HOLDER......................................................3
SECTION 1.14. PRINCIPAL OFFICE............................................3
SECTION 1.15. RECEIPTS....................................................3
SECTION 1.16. REGISTRAR...................................................4
SECTION 1.17. RESTRICTED SECURITIES.......................................4
SECTION 1.18. SECURITIES ACT OF 1933......................................4
SECTION 1.19. SECURITIES EXCHANGE ACT OF 1934.............................4
SECTION 1.20. SHARES......................................................4
SECTION 1.21. UNITED STATES...............................................5
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.............................................5
SECTION 2.1. FORM AND TRANSFERABILITY OF RECEIPTS...........................5
SECTION 2.2. DEPOSIT OF SHARES..............................................6
SECTION 2.3. WARRANTIES ON DEPOSIT OF SHARES................................7
SECTION 2.4. EXECUTION AND DELIVERY OF RECEIPTS.............................7
SECTION 2.5. REGISTRATION OF TRANSFER, ISSUANCE OF NEW RECEIPTS.............8
SECTION 2.6. SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES...8
SECTION 2.7. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.........................................10
SECTION 2.8. LOST RECEIPTS, ETC............................................11
SECTION 2.9. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS..........11
SECTION 2.10. EXCHANGE OF OLD RECEIPTS...................................11
SECTION 2.11. MAINTENANCE OF RECORDS.....................................11
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS......................12
SECTION 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.............12
SECTION 3.2. LIABILITY OF HOLDERS FOR TAXES AND OTHER CHARGES..............12
SECTION 3.3. COMPLIANCE WITH LAW...........................................13
SECTION 3.4. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS................13
ARTICLE 4. THE DEPOSITED SECURITIES........................................14
SECTION 4.1. CASH DISTRIBUTIONS; WITHHOLDING...............................14
SECTION 4.2. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS...............14
SECTION 4.3. DISTRIBUTIONS IN SHARES.......................................15
SECTION 4.4. RIGHTS DISTRIBUTIONS..........................................16
SECTION 4.5. DIVIDENDS AND DISTRIBUTIONS REQUIRING REGISTRATION............17
SECTION 4.6. CONVERSION OF FOREIGN CURRENCY................................18
SECTION 4.7. FIXING OF RECORD DATE.........................................19
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SECTION 4.8. VOTING OF DEPOSITED SECURITIES................................19
SECTION 4.9. CHANGES AFFECTING DEPOSITED SECURITIES........................21
SECTION 4.10. REPORTS....................................................21
SECTION 4.11. LISTS OF RECEIPT HOLDERS...................................22
SECTION 4.12. TAXATION...................................................22
SECTION 4.13. MONITORING OF DIVIDENDS AND OTHER DISTRIBUTIONS............23
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...................23
SECTION 5.1. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY....23
SECTION 5.2. OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY..24
SECTION 5.3. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
CUSTODIAN OR THE COMPANY......................................24
SECTION 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY..........................................25
SECTION 5.5. THE CUSTODIAN.................................................26
SECTION 5.6. NOTICES AND REPORTS TO HOLDERS................................27
SECTION 5.7. INDEMNIFICATION...............................................27
SECTION 5.8. CHARGES OF DEPOSITARY.........................................29
SECTION 5.9. PRE-RELEASE OF RECEIPTS.......................................30
SECTION 5.10. RETENTION OF DEPOSITARY DOCUMENTS..........................31
SECTION 5.11. LIST OF RESTRICTED SECURITIES HOLDERS......................31
SECTION 5.12. EXCLUSIVITY................................................31
ARTICLE 6. AMENDMENT AND TERMINATION.......................................31
SECTION 6.1. AMENDMENT.....................................................31
SECTION 6.2. TERMINATION...................................................32
ARTICLE 7. MISCELLANEOUS...................................................33
SECTION 7.1. COUNTERPARTS..................................................33
SECTION 7.2. NO THIRD PARTY BENEFICIARIES..................................33
SECTION 7.3. SEVERABILITY..................................................33
SECTION 7.4. HOLDERS AS PARTIES, BINDING EFFECT............................33
SECTION 7.5. NOTICES.......................................................33
SECTION 7.6. GOVERNING LAW.................................................34
SECTION 7.7. ASSIGNMENT....................................................34
SECTION 7.8. COMPLIANCE WITH U.S. SECURITIES LAWS..........................34
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of December 1, 1999, as amended and
restated as of ____________, 2000 among BASF AKTIENGESELLSCHAFT, a stock
corporation organized and existing under the laws of the Federal Republic of
Germany and its successors (the "Company"), THE BANK OF NEW YORK, a New York
banking corporation and any successor as depositary hereunder (the
"Depositary"), and all holders (including beneficial owners) from time to time
of American Depositary Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, the parties hereto desire through the Depositary to provide
for the deposit of Shares (as hereinafter defined) of the Company from time to
time with the Custodian (as hereinafter defined) for the creation of American
Depositary Shares (as hereinafter defined) representing the Shares so deposited
and for the execution and delivery of American Depositary Receipts evidencing
such American Depositary Shares, and for such other purposes set forth in this
Deposit Agreement; 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 foregoing premises and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise
expressly indicated herein, apply to the following respective terms used in this
Deposit Agreement:
SECTION 1.1. American Depositary Shares.
The term "American Depositary Shares" shall mean the
securities and all rights of ownership associated therewith evidenced by the
Receipts issued hereunder, including the interests in the Deposited Securities
granted to the Holders of Receipts pursuant to the terms and conditions of this
Deposit Agreement. Each American Depositary Share shall represent one (1) Share;
provided, however, that if there shall occur a distribution upon Deposited
Securities contemplated by Section 4.3 or a change in Deposited Securities
contemplated by Section 4.9 with respect to which additional Receipts are not
executed and delivered, the term "American Depositary Shares" shall thereafter
represent the number of Shares or other Deposited Securities determined in
accordance with such Sections.
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SECTION 1.2. Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.3. Company.
The term "Company" shall have the meaning set forth in the
first paragraph of this Deposit Agreement.
SECTION 1.4. Consultation.
The term "Consultation" shall mean the good faith attempt by
the Depositary to discuss, if practicable, the relevant issue in a timely manner
with a person employed by the Company reasonably believed by the Depositary to
be empowered by the Company to engage in such discussion on behalf of the
Company.
SECTION 1.5. Custodian.
The term "Custodian" shall mean, as of the date hereof, the
Frankfurt/Main offices of Dresdner Bank AG and Deutsche Bank AG, each as
custodian and agent of the Depositary for purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary, with the prior written consent of the Company, pursuant to the terms
of Section 5.5, as substitute or additional custodian hereunder, as the context
shall require, and the term "Custodians" shall mean all such persons,
collectively.
SECTION 1.6. Deliver, Delivery.
The term "deliver" and "delivery" shall mean, when used in
respect of Deposited Securities and Shares, electronic delivery of such security
by means of book-entry transfer. The term "deliver" and "delivery" shall mean,
when used in respect of American Depositary Shares or Receipts, either the
physical delivery of the certificate representing such security or electronic
delivery of such security by means of book-entry transfer.
SECTION 1.7. 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 1.8. Depositary.
The term "Depositary" shall have the meaning set forth in the
first paragraph of this Deposit Agreement.
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SECTION 1.9. Deposited Securities.
The term "Deposited Securities" as of any time shall mean all
Shares at such time deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian on
behalf of the Holders in respect or in lieu of Shares and at such time held
hereunder, subject as to cash to the provisions of Section 4.6.
SECTION 1.10. Dollars, Euros.
The term "Dollars" shall refer to the lawful currency of the
United States. The term "Euros" shall refer to the lawful currency of the
participating member states of the European Monetary Union (including Germany)
as defined in Council Regulation (EC) No. 974/98 of May 3, 1998 of the Counsel
of the European Union on the replacement by the Euro, as of January 1, 1999, of
the national currencies of the participating member states at the conversion
rates defined in such Counsel Regulation.
SECTION 1.11. Foreign Currency.
The term "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.12. Germany.
The term "Germany" shall mean the Federal Republic of Germany.
SECTION 1.13. Holder.
The term "Holder" shall mean any person in whose name a
Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.14. Principal Office.
The term "Principal Office", when used with respect to the
Depositary, shall mean the principal corporate trust office of the Depositary,
which at the date of this Deposit Agreement is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and when used with respect to the Custodian, shall
mean the principal office of the Custodian, which (i) with respect to Dresdner
Bank AG is located at Xxxxxx-Xxxxx-Xxxxx 0, 00000 Xxxxxxxxx/Xxxx, Xxxxxxx, and
(ii) with respect to Deutsche Bank AG is located at Xxxxxxxxxxxx 00, 00000
Xxxxxxxxx/Xxxx, Xxxxxxx.
SECTION 1.15. Receipts.
The term "Receipts" shall mean the American Depositary
Receipts, substantially in the form of Exhibit A, issued hereunder evidencing
American Depositary Shares. A Receipt may evidence any whole number of American
Depositary Shares.
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SECTION 1.16. Registrar.
The term "Registrar" shall mean, subject to any applicable
rule or regulation of any securities market upon which the American Depositary
Shares may be traded, any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which shall be appointed by the Depositary
upon the request or with the approval of the Company, to register Receipts and
transfers of Receipts as herein provided and shall include the Depositary and
any co-Registrar appointed by the Depositary upon the request or with the
approval of the Company, for such purposes.
SECTION 1.17. Restricted Securities.
The term "Restricted Securities" shall mean Shares, or
Receipts representing such Shares, which are acquired directly or indirectly
from the Company or its affiliates (as defined in Rule 144 under the Securities
Act of 1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Company, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or Germany, or under a shareholder agreement or the Articles of
Association (Satzung) and Bylaws of the Company.
SECTION 1.18. 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 1.19. Securities Exchange Act of 1934.
The term "Securities Exchange Act of 1934" shall mean the
United States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.20. Shares.
The term "Shares" shall mean ordinary shares, no par value, of
the Company or evidence of the right to receive such Shares; provided, however,
that if there shall occur any change in nominal value or any reclassification
or, upon the occurrence of an event described in Section 4.9 an exchange or
conversion in respect of the Shares of the Company, the term "Shares" shall
thereafter mean the successor securities resulting from such change in nominal
value or such other reclassification or such exchange or conversion.
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SECTION 1.21. United States.
The term "United States" shall have the meaning assigned to it
under Regulation S under the Securities Act of 1933.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.1. Form and Transferability of Receipts.
Subject to the requirements of any applicable rule or
regulation of any securities market upon which the American Depositary Shares
may be traded, the definitive Receipts shall be in such form as may be agreed
upon by the Company and the Depositary, and in any event 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 enforceable for any purpose, unless such Receipt shall have been
issued, dated and executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, and if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and dated by
such signatory. 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; provided, however, if a Registrar has been
appointed then such books shall be maintained by the Registrar. Receipts bearing
the manual or facsimile signature of anyone who was at the time of signature a
duly authorized signatory of the Depositary or Registrar shall bind the
Depositary or Registrar, as the case may be, notwithstanding that such signatory
has ceased to hold such office prior to or after the delivery of such Receipts.
The Receipts may, with the prior written consent of the
Company, and upon request of the Company shall, be endorsed with or have
incorporated in the text thereof such other legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may be required by
the Depositary in respect of its obligations hereunder, or as may be required by
the Depositary or the Company to comply with any applicable law or regulation or
with the rules and regulations of any market upon which the American Depositary
Shares may be traded 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 or manner of issuance of the
underlying Deposited Securities or otherwise.
Subject to any limitations set forth in the Receipts, title to
a Receipt and to the American Depositary Shares evidenced thereby, when such
Receipt is properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice),
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided,
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however, that the Company and the Depositary may deem and treat the Holder of a
Receipt as the absolute owner thereof for all purposes, including but not
limited to 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 Holder thereof.
SECTION 2.2. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares may be deposited by any person by delivery thereof to the Custodian
hereunder at the account maintained by the Custodian for such purpose or such
other account as may be agreed to by the Depositary and the Custodian,
accompanied by all dividend coupons for dividends to be paid in the future or
rights to receive such dividend coupons or appropriate evidence thereof and, if
applicable, 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. Upon the request of
the Depositary, such person shall also deliver 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 being issued in respect of such deposit. No Shares
shall be accepted for deposit unless accompanied by all dividend coupons for
dividends to be paid in the future (or appropriate evidence thereof) and by
evidence reasonably satisfactory to the Depositary that all necessary approvals,
if any, have been granted by any governmental authority or body in Germany which
is then performing the function of the regulation of currency exchange.
If required by the Depositary and provided that no applicable
German law is violated thereby, Shares presented for deposit in accordance with
this Deposit Agreement at any time shall, subject to the provisions of Article
4, also be accompanied by an agreement, assignment or other instrument
reasonably satisfactory to the Depositary providing the Custodian the right to
receive all dividends, the right to subscribe for additional Shares or any other
securities or the right to receive other property and the right to vote, which
any Holder has in respect of such deposited Shares, or in lieu thereof such
agreement of indemnity or other agreement as shall be reasonably satisfactory to
the Depositary.
At the request, risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates, if any, for Shares to be deposited, together with the other
orders, instruments and evidence herein specified, for the purpose of forwarding
such certificates to the Custodian for deposit hereunder.
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Deposited Securities shall be held by the Depositary or by the
Custodian for the account and to the order of the Depositary at the Principal
Office of the Depositary or the Custodian or at Deutsche Borse Clearing AG, the
central securities clearing and deposit bank in Germany or at such other place
or places as the Depositary shall determine upon the prior written consent of
the Company. The Depositary agrees to instruct the Custodian to place all Shares
accepted for deposit under this Deposit Agreement into an account or accounts
separate from any shares of the Company that may be held by such Custodian.
SECTION 2.3. Warranties on Deposit of Shares.
Each person depositing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that (i) such Shares and each
certificate therefor are free and clear of any lien, encumbrance, security
interest, charge, mortgage, pledge or restriction on transfer, (ii) such Shares
have been validly issued, fully paid and are nonassessable and are free of any
pre-emptive rights of the holders of outstanding Shares, (iii) such Shares are
accompanied by all dividend coupons in respect of dividends to be paid in the
future on such Shares (or appropriate evidence thereof), (iv) the person making
such deposit is duly authorized to do so, and (v) the deposit of such Shares or
sale of Receipts issuable upon such deposit is not restricted under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and the issuance or cancellation of Receipts.
SECTION 2.4. Execution and Delivery of Receipts.
Upon receipt by the Custodian of any deposit pursuant to
Section 2.2 hereunder, together with the other documents specified in Section
2.2, the 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 air courier,
cable, telex or facsimile transmission. Upon receiving such notice from the
Custodian and payment of the issuance fee specified in Section 5.8 hereof by the
person to whom the Receipt is to be issued, the Depositary shall subject to the
terms and conditions of this Deposit Agreement, execute and deliver at its
Principal Office to or upon the order of the person or persons named in the
notice delivered to the Depositary, a Receipt or Receipts, registered in the
name or names requested by such person or persons and evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled, but only upon payment to the Depositary or the Custodian
of all taxes, duties and governmental charges and fees payable in connection
with such deposit and the transfer of the deposited Shares.
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SECTION 2.5. Registration of Transfer, Issuance of New Receipts.
The Depositary shall, subject to the terms and conditions of
this Deposit Agreement and any Receipt, register transfers of Receipts on its
transfer books, upon receipt of proper documentation therefor requested by the
Depositary, including without limitation, surrender of such Receipt by the
Holder thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer, and duly stamped as may be
required by any applicable law. Upon such surrender the Depositary shall execute
a new Receipt or Receipts evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered for registration of
transfer and deliver the same to or upon the order of the person or persons
entitled thereto, subject to receipt of any certifications, if any, as the
Depositary or the Company may require in order to comply with any applicable
laws.
The Depositary shall, subject to the terms and conditions of
this Deposit Agreement, upon surrender of a Receipt or Receipts for the purpose
of obtaining a lesser or greater number of Receipts, execute and deliver a new
Receipt or Receipts in the name of the same Holder for any authorized whole
number of American Depositary Shares requested; notwithstanding the foregoing,
such new Receipt(s) shall evidence the same aggregate whole number of American
Depositary Shares as the Receipt or Receipts surrendered. The Depositary may
close the transfer books at any time or from time to time, following
Consultation with the Company to the extent practicable, when reasonably deemed
expedient by it in connection with the performance of its duties hereunder, or
at the request of the Company. To the extent that it is not practicable for the
Depositary to consult with the Company before closing the transfer books, the
Depositary will promptly notify the Company after closing the transfer books and
explain its reasons for doing so.
The Depositary, upon the written request of the Company or
with the approval of the Company, may appoint one or more co-transfer agents for
the purpose of effecting transfers and issuing new Receipts at designated
transfer offices on behalf of the Depositary. Such appointment shall not be
effective unless each co-transfer agent appoint under this Section 2.5 accepts
such appointment in writing and agrees 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 Holders or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary.
SECTION 2.6. Surrender of Receipts and Withdrawal of Deposited
Securities.
Upon (i) delivery of a Receipt to the Depositary for the
purpose of withdrawal of the whole number of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, (ii) payment to the
Depositary of the surrender fee specified in Section 5.8 hereof by the person
delivering such Receipt for cancellation thereof and payment of all taxes,
duties and other governmental charges and
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fees payable in connection with the delivery of Deposited Securities against
surrender of Receipts, and (iii) delivery of written instructions of the Holder
directing the Depositary to cause such whole number of Deposited Securities
being withdrawn, together with a new Receipt evidencing any fractional Deposited
Securities, to be delivered to, or upon the written order of, the person or
persons designated in such instructions, the Holder of such Receipt shall be
entitled to delivery, to him or upon his order, of such whole number of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt, together with a new Receipt evidencing any fractional
Deposited Securities. Delivery of such Deposited Securities may be made by (a)
delivery or transfer to the account of a German securities bank with Deutsche
Borse Clearing AG or through the facilities of Cedel, S.A., or Xxxxxx Guaranty
Trust of New York, Brussels office, as operator of the Euroclear System, for the
benefit of such Holder or as ordered by it and (b) delivery of any other
securities, property and cash to which such Holder is then entitled in respect
of such Receipts to such Holder or as ordered by it. Such delivery of Deposited
Securities and new Receipt, if any, shall be made without unreasonable delay.
A Receipt surrendered and written instructions received for
such purpose may be required by the Depositary to be properly endorsed in blank
or accompanied by properly executed instruments of transfer. Promptly following
the receipt of complete written instructions and compliance with the terms of
this Section 2.6, the Depositary shall direct the Custodian to deliver, subject
to Sections 2.7, 3.1 and 3.2 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in such written instructions, the Deposited Securities represented by
the American Depositary Shares evidenced by such surrendered Receipt. The
Depositary may nonetheless in any case make delivery to such person or persons
at its Principal Office of any dividends or distributions with respect to the
Deposited Securities or of any proceeds from the sale of any dividends,
distributions or rights with respect to the Deposited Securities, which may at
the time be held by the Depositary.
At the request, risk and expense of any Holder surrendering a
Receipt, and for the account of such Holder, provided that payment of any
applicable tax or other governmental charge shall have been made in accordance
with Section 3.2, the Depositary shall direct the Custodian to forward any cash
or other property (other than rights), and a certificate or certificates (if
certificated Deposited Securities may be delivered) and other proper documents
of title, if any, for the Deposited Securities to the Depositary for delivery at
the Principal Office of the Depositary. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by air courier, cable,
telex or facsimile transmission. The Depositary shall not accept for surrender a
Receipt evidencing American Depositary Shares representing a fractional interest
in one Share or one other Deposited Security. In the case of surrender of a
Receipt evidencing any number of American Depositary Shares representing other
than a whole number of Shares or other Deposited Securities, the Depositary
shall cause ownership of the appropriate whole number of Shares or other
Deposited Securities to be recorded in the
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name of the Holder surrendering such Receipt and shall issue and deliver to the
person surrendering such Receipt a new Receipt evidencing American Depositary
Shares representing any remaining fractional interest.
SECTION 2.7. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer or surrender of any Receipt, the delivery of any
distribution in respect thereof or the withdrawal of any Deposited Securities,
the Company, the Depositary or the Custodian may require from the Holder, the
presenter of a Receipt or the depositor of Shares (i) payment 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 Deposited Securities
being withdrawn) and payment of any charges of the Depositary upon delivery of
Receipts against deposits of Shares and upon withdrawal of Deposited Securities
against surrender of Receipts as set forth in Section 5.8 hereof; (ii)
compliance with such reasonable regulations, if any, as the Depositary and the
Company may establish consistent with the provisions of this Deposit Agreement;
and (iii) production of proof satisfactory to it as to the identity and
genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with this Deposit Agreement,
including but not limited to, in the case of Receipts, a signature guarantee in
accordance with industry practice.
The delivery of Receipts against, or adjustments in the
records of the Depositary to reflect, deposits of Shares generally or of
particular Shares may be suspended or withheld, or the registration of transfer
of Receipts in particular instances may be refused, or the registration of
transfer of 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
or regulatory authority, body or commission or any meeting of shareholders of
the Company or under any provision of this Deposit Agreement or the Articles of
Association (Satzung) of the Company, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding any other provision of
this Deposit Agreement or the Receipts, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may not be suspended, except as required
in connection with (i) temporary delays caused by closing the transfer books of
the Depositary or the deposit of Shares in connection with voting at a
shareholders meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any United States or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any shares required to be registered under the provisions of the Securities Act
of 1933 unless
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a registration statement is in effect as to such shares. The Depositary will
comply with written instructions of the Company not to accept for deposit under
this Deposit Agreement any Shares identified in such instructions and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with United States securities laws.
SECTION 2.8. 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 or lost or stolen Receipt,
upon the Holder thereof (i) filing with the Depositary a request for such
exchange, execution and delivery before the Depositary has notice that the
Receipt has been acquired by a bona fide purchaser, (ii) depositing with the
Depositary a sufficient indemnity bond or other indemnification acceptable to
the Depositary, and (iii) satisfying any other reasonable requirements imposed
by the Depositary.
SECTION 2.9. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled
by the Depositary. Cancelled Receipts shall not be entitled to any benefits
under this Deposit Agreement or be valid or enforceable for any purpose. The
Depositary shall destroy Receipts so cancelled.
SECTION 2.10. Exchange of Old Receipts.
Unless previously requested, as soon as practicable after the
date of this Deposit Agreement, the Depositary shall request any depositary that
has created and delivered receipts evidencing American depositary shares
representing Shares theretofore issued ("Old Receipts") to notify the record
holders of all outstanding Old Receipts (i) of the execution of this Deposit
Agreement, (ii) that the Old Receipts held by them shall be exchanged for
Receipts, and (iii) of such other information as the Depositary may deem
appropriate. The Depositary shall exchange such Old Receipts for Receipts. No
fee shall be charged to the holders of Old Receipts for the exchange for
Receipts, except that, in all cases involving a change of ownership, any
required transfer taxes or other such charge shall be paid by such holders.
SECTION 2.11. Maintenance of Records.
The Depositary agrees to maintain records of all Receipts
surrendered and Deposited Securities withdrawn under Section 2.6, of substitute
Receipts delivered under Section 2.8 and of Receipts cancelled or destroyed
under Section 2.9 and Old Receipts exchanged under Section 2.10, in keeping with
procedures ordinarily followed by stock transfer agents located in The City of
New York. Prior to destroying any such records,
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the Depositary will notify the Company and will turn such records over to the
Company upon its request.
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.1. Filing Proofs, Certificates and Other Information.
In order to enable the Depositary and the Company to comply
with applicable laws and to perform their respective obligations hereunder, any
person depositing Shares or any Holder may be required from time to time (i) to
file proof of (a) citizenship or residence, (b) exchange control approval and
payment of all taxes and other governmental charges, (c) compliance with all
applicable laws, regulations and provisions of or governing Deposited Securities
and the terms of this Deposit Agreement, and (d) legal or beneficial ownership
of Receipts, Deposited Securities and other securities, and the nature of such
interest and (ii) to execute and deliver such certificates and to make such
representations and warranties in addition to those set forth in Section 2.3 as
the Depositary or the Company may deem necessary or proper. The Depositary may,
and shall if reasonably requested by the Company, 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 represented by the American Depositary Shares evidenced by
such Receipt until such proof or other information is filed or such certificates
are executed or such representations and warranties are made to the satisfaction
of the Company and the Depositary. The Depositary shall provide the Company in a
timely manner copies of any such proofs and certificates and such written
representations and warranties that it receives. Each Holder agrees to provide
any information requested by the Company or the Depositary pursuant to this
paragraph.
SECTION 3.2. Liability of Holders for Taxes and Other Charges.
If any tax or other governmental charge shall become payable
with respect to any Receipt or any Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, such tax or other
governmental charge shall be payable by the Holder of such Receipt to the
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any registration of transfer of all or part of such
Receipt or to issue any new Receipt or Receipts or to permit any deposit or
withdrawal of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt until such payment is made, and the Company and the
Depositary may withhold or deduct from any dividends or other distributions, or
may sell for the account of the Holder 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; the Holder of
such Receipt remaining liable for any deficiency.
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SECTION 3.3. Compliance with Law.
The Depositary agrees to comply with all applicable laws. Each
Holder agrees that such Holder is bound by and subject to the Articles of
Association (Satzung) of the Company as if such Holder were a holder of Shares,
and each Holder agrees to comply with all applicable provisions of German law
and the Articles of Association (Satzung) of the Company with regard to
notification to the Company of such Holder's interest in Shares (including those
Shares represented by American Depositary Shares), including any provision
requiring such Holder to disclose within a prescribed period of time an interest
in Shares amounting to, exceeding or falling below 5%, 10%, 25%, 50% and 75% of
such Shares outstanding or such other percentage as may be required from time to
time pursuant to any provision of German law or otherwise. Each Holder
acknowledges that failure by a Holder to provide on a timely basis any such
required notification of such Holder's interest in Shares may result in the loss
of certain rights in respect of such Holder's American Depositary Shares
including, without limitation, voting rights and the right to receive dividends
or other payments in respect of the Shares represented by such American
Depositary Shares. Each such Holder required to provide the notification
described above may deliver such notification to the Depositary for forwarding
to the Company. The Depositary agrees to forward to the Company, as soon as
practicable, any such notifications received by the Depositary from any Holder.
Notwithstanding the foregoing, any notification by a Holder to be made under
this Section 3.3 shall only be deemed to be effected and provided to the Company
at the time when the Company has received such notification.
SECTION 3.4. Disclosure of Beneficial Ownership of Receipts.
The Company and the Depositary may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held Receipts and regarding the identity of any other persons then
or previously interested in such Receipts and various other matters. Each such
Holder agrees to provide any such information reasonably requested by the
Company or the Depositary pursuant to this Section 3.4 and such agreement shall
survive any disposition of such Holder's interest in Shares or Receipts. The
Depositary agrees to use its reasonable efforts to comply with written
instructions received from the Company requesting that the Depositary forward
any such requests to such Holders and to the last known address, if any, of such
former Holders and to forward to the Company any 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
American Depositary Shares, 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 former Holders.
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ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.1. Cash Distributions; Withholding.
Whenever the Custodian or the Depositary shall receive any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.6 hereof, convert such
dividend or distribution, if applicable, into Dollars and shall as promptly as
practicable distribute the amount thus received (net of the expenses of the
Custodian or the Depositary, as the case may be, in connection with the
conversion of such Foreign Currency into Dollars and such other fees and
expenses as provided in Section 5.8 hereof) to the Holders 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, the Depositary or the Custodian shall be required to
withhold and does withhold, subject to Section 4.12 hereof from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes or other governmental charges, the amount distributed
to the Holders of 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 Holder of a Receipt a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. The Company or the Depositary, as appropriate, will remit to
the appropriate governmental authority or agency in Germany or any other
relevant jurisdiction all amounts withheld and owing to such authority or
agency. The Depositary will forward to the Company such information from its
records as the Company may reasonably request to enable the Company to file
necessary reports with governmental authorities or agencies and the Depositary,
the Custodian or the Company may file any such reports necessary to obtain
benefits under applicable tax treaties for the Holders.
SECTION 4.2. Distributions Other Than Cash, Shares or Rights.
Subject to Section 4.12, whenever the Custodian or the
Depositary shall receive any distribution other than distributions described in
Sections 4.1, 4.3 or 4.4 upon any Deposited Securities, the Depositary shall, as
promptly as practicable, after Consultation with the Company, cause the
securities or property received by it or by the Custodian to be distributed to
the Holders entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary deems equitable and practicable for accomplishing
such distribution; provided, however, that if the Company shall so direct, or if
in the reasonable opinion of the Depositary such distribution cannot be made or
cannot be made proportionately among the Holders entitled thereto, or if for any
other reason (including any requirement that the Company, the Custodian 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
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Holders) the Depositary determines that such distribution is not feasible or may
not be legally made to some or all Holders, the Depositary may, following
Consultation with the Company, adopt such method as it deems lawful, equitable
and practicable for the purpose of effecting such distribution, including the
sale (either public or private, at such place or places and upon such terms as
it may deem reasonably proper) of the securities or property thus received, or
any part thereof and, in such case, the net proceeds of any such sale shall be
distributed by the Depositary to the Holders entitled thereto as in the case of
a distribution received in cash; provided that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto, if such distribution is feasible without withholding for or on
account of any taxes or other governmental charges and without registration
under the Securities Act of 1933, in accordance with such equitable and
practicable method as the Depositary may have adopted; provided, further, that
no distribution to Holders pursuant to this Section shall be unreasonably
delayed by any action of the Depositary or the Custodian. To the extent such
property, or the net proceeds thereof, is not effectively distributed to Holders
as provided herein, the same shall constitute Deposited Securities and each
American Depositary Share shall thereafter also represent its proportionate
interest in such property or net proceeds.
SECTION 4.3. Distributions in Shares.
If any distribution upon any Deposited Securities consists of
a dividend in, or distribution without consideration of, Shares, the Depositary
may, and shall if the Company so requests, distribute to the Holders 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 number of Shares received in such dividend or
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
in the manner and subject to the conditions described in Section 4.1. Until the
distribution of such Receipts and net proceeds in accordance with the preceding
sentence, each American Depositary Share shall also represent its proportionate
interest in the additional Shares distributed upon the Deposited Securities
represented thereby and such net proceeds. Notwithstanding the foregoing, if for
any reason (including any requirement that the Company, the Custodian or the
Depositary withhold an amount on account for taxes or other governmental charges
or that such Shares must be registered under the Securities Act of 1933 in order
to be distributed to Holders) the Depositary, after Consultation with the
Company, determines that a distribution in Shares is not feasible or may not be
legally made to some or all Holders, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (either public or private, at such place or
places and upon such terms as it may deem reasonably proper) of the Shares thus
received or any part thereof and, in such case, the net proceeds of any such
sale shall be distributed by the Depositary to the
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Holders entitled thereto as in the case of a distribution in cash. No
distribution to Holders pursuant to this Section shall be unreasonably delayed
by any action of the Depositary or the Custodian.
SECTION 4.4. Rights Distributions.
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 shall
following Consultation with the Company as to the procedure to be followed (i)
make such rights available to the Holders entitled thereto as provided in clause
(a) below, (ii) dispose of such rights on behalf of such Holders and make the
net proceeds available in Dollars to such Holders as provided in clause (b)
below or (iii) if by the terms of such rights offering or by reason of
applicable law the Depositary can neither make such rights available to such
Holders nor dispose of such rights and make the net proceeds available to such
Holders, then the Depositary shall allow the rights to lapse.
If at the time of the rights offering the Depositary
determines, following Consultation with the Company:
(a) that it is lawful and feasible to make such rights
available to all or certain Holders by means of warrants or otherwise, the
Depositary shall distribute to every Holder to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Holder, warrants or other instruments therefor in
such form as it deems appropriate, or employ such other method as it may deem
feasible in order to facilitate the exercise, sale or transfer of rights by such
Holders or the sale or resale of securities obtainable upon exercise of such
rights by such Holders; or
(b) that it is not lawful or not feasible to make such rights
available to all or certain Holders by means of warrants or otherwise, or if the
rights represented by such warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary shall use its reasonable efforts
to sell such rights or warrants or other instruments, at a public or private
sale, at such place or places and upon such terms as it may deem reasonably
proper, and allocate the net proceeds of any such sale (net of all taxes and
governmental charges payable in connection with such rights and the fees of the
Depositary set forth in Section 5.8 hereof) for the account of the Holders
otherwise entitled to such rights, warrants or other instruments upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of the application of exchange restrictions with regard to
a particular Holder or otherwise and distribute such net proceeds to the extent
practicable as in the case of a distribution of cash pursuant to Section 4.1
hereof.
In circumstances in which rights would otherwise not be
distributed, if a Holder requests the distribution of warrants or other
instruments in order to exercise the
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rights allocable to the American Depositary Shares of such Holder hereunder, the
Depositary will make such rights available to such Holder 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 Holder has
executed such documents as the Company has determined in its sole discretion are
required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary to
exercise such rights, upon payment by such Holder to the Depositary for the
account of such Holder 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 of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall on behalf of such Holder, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be deposited with the Custodian pursuant to Section 2.2 of this Deposit
Agreement, and the Depositary shall pursuant to Section 2.4 of this Deposit
Agreement, execute and deliver Receipts to such Holder. In the case of certain
distributions pursuant to clause (a) of the second paragraph of this Section or
pursuant to the third paragraph of this Section, such Receipts shall be legended
in accordance with instructions of the Company, and shall be subject to such
restrictions on sale, deposit, cancellation and transfer as the Depositary shall
deem necessary or shall be instructed by the Company.
If registration under the Securities Act of 1933 of the rights
or the securities to which any rights relate is required in order for the
Company to offer such rights to Holders of Receipts and to sell the securities
represented by such rights, the Depositary will not offer such rights unless and
until a registration statement is in effect or such rights and the securities to
which such rights relate are exempt from registration under the Securities Act
of 1933; provided that nothing in this Deposit Agreement shall create, or shall
be construed to create, any obligation on the part of the Company to file such a
registration statement or to endeavor to have such a registration statement
declared effective.
In the event that the rights and the securities to which such
rights relate are not registered under the Securities Act of 1933, the
Depositary shall not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to any particular Holder.
SECTION 4.5. Dividends and Distributions Requiring Registration.
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 (4) rights to subscribe for such
securities, (each a "Distribution") the Company will promptly furnish to the
Depositary upon reasonable request a written opinion from U.S. counsel for the
Company, which counsel shall be reasonably satisfactory to the Depositary,
stating whether or not the Distribution requires a registration statement under
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the Securities Act of 1933 to be in effect prior to making such Distribution
available to Holders entitled thereto; provided, however, that no such opinion
shall be required in the event of an issuance of Shares as a bonus, share split
or similar event. If in the opinion of such counsel a registration statement is
required, such counsel shall furnish to the Depositary a written opinion as to
whether or not there is a registration statement in effect which will cover such
Distribution.
The Company agrees with the Depositary that neither the
Company nor any company controlled by, controlling or under common control with
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 4.6. 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 reasonable judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall as promptly as
practicable 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 Holders entitled thereto in proportion to the number
of American Depositary Shares held by them respectively 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 Holders 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 5.8.
The Depositary shall promptly inform the Company of the exchange rate at which
such Foreign Currency conversion has been carried out.
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; provided, however, that if such application involves or refers to the
Company or is made on behalf of the Company, the Depositary shall, at the
written request of the Company, provide the Company a reasonable opportunity to
review and comment on such application before it is filed.
If at any time the Depositary shall determine, following
Consultation with the Company, that in its judgment any Foreign Currency
received by the Depositary 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 which is required for such conversion is denied or
in the opinion of the Depositary is not obtainable, or if any such
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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 Holders 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 Holders entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Holders 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 Holders entitled thereto.
SECTION 4.7. Fixing of Record Date.
Whenever any cash dividend or other cash distribution is to be
declared and paid or any distribution other than cash is to be declared and
made, or whenever rights are to be issued with respect to the 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 receives notice of any meeting of or solicitation of
consents or proxies from holders of Shares or other Deposited Securities, or
whenever the Company or the Depositary finds it necessary or convenient in
respect of any matter, the Depositary shall fix a record date (which shall (i)
to the extent practicable, be the same date that holders of Shares or other
Deposited Securities shall be entitled to receive or exercise such rights, and
(ii) with respect to record dates that are not the same as the corresponding
record date set by the Company, be fixed only after Consultation with the
Company) (i) for the determination of the Holders who shall be entitled (a) to
receive such dividend, distribution or rights, or the net proceeds of the sale
thereof or (b) to give instructions for the exercise of voting rights, if any,
at any such meeting or to receive information as to such meeting, or (ii) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.6 and to the other
terms and conditions of this Deposit Agreement, the Holders on such record date
shall be entitled 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 or to exercise the rights of Holders hereunder with
respect to such changed number of Shares represented by each American Depositary
Share 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 4.8. 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
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Depositary shall, subject to applicable law and the Company's Articles of
Association, mail 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 therefore pursuant to Section 4.9
hereof will be entitled subject to all applicable provisions of law, including
any laws of Germany, the Articles of Association (Satzung) of the Company and
this Deposit Agreement, 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 American Depositary Shares, (c) specifying how and when
such instructions may be given, and (d) stating that if no voting instructions
are received from a Holder on or before the date established by the Depositary
for such purpose, such Holder shall be deemed to have instructed the Depositary
not to vote the Deposited Securities underlying such Holder's American
Depositary Shares. 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 is practicable and permitted
under applicable law, the Company's Articles of Association (Satzung) and the
provisions of or governing Deposited Securities, to vote or cause to be voted
the Deposited Securities underlying such Holder's American Depositary Shares in
accordance with such instructions. Upon the request of a Holder who has not
previously given instructions to the Depositary after receipt of the Notice as
to the exercise of voting rights pertaining to the Deposited Securities
underlying such Holder's American Depositary Shares, and subject to compliance
with any reasonable regulations the Depositary may establish, the Depositary
will endeavor to provide such Holder (or a person designated by such Holder)
with the documentation necessary to attend a meeting of holders of Deposited
Securities.
The Depositary shall not vote or cause to be voted Deposited
Securities other than in accordance with such instructions received from Holders
of American Depositary Shares.
The Depositary will endeavor to ensure that on any date on
which it votes or causes to be voted Deposited Securities pursuant to this
Section 4.8, it will have on deposit under this Agreement the number of
Deposited Securities with respect to which it has received voting instructions
from Holders. In the event that, 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.
The Depositary shall use its best efforts to vote or cause to
be voted Shares or other Deposited Securities underlying Receipts in accordance
with instructions received from Holders in accordance with this Section 4.8;
provided, however, that the Depositary shall not be responsible for any failure
to carry out any instructions to vote
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any of the Deposited Securities, or for the manner in which any such vote is
cast or the effect of any such vote, provided that any such action or nonaction
is in good faith.
Nothing in this Deposit Agreement shall be construed to grant
a holder any voting rights with respect to Deposited Securities to which, by
their terms, voting rights do not otherwise attach.
SECTION 4.9. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not
apply, upon any change in nominal value or any 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 the Custodian in
exchange for, or in conversion, replacement or otherwise in respect of,
Deposited Securities shall be treated as Deposited Securities under this Deposit
Agreement, and the American Depositary Shares evidenced by the Receipts shall,
subject to the terms of this Deposit Agreement and applicable laws, including
any applicable provisions of the Securities Act of 1933, thenceforth represent
the Deposited Securities so received unless and until additional or new Receipts
are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company requests, at no cost to Holders,
execute and deliver additional Receipts 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 newly received Deposited Securities.
Immediately upon the occurrence of any such change, conversion
or exchange covered by this Section in respect of the Deposited Securities, the
Depositary shall give notice thereof in writing to all Holders. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, following Consultation
with the Company, or shall, upon request of the Company, sell such securities at
a public or private sale, at such place or places and upon such terms as it may
deem proper, and may allocate the net proceeds of such sale for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1.
SECTION 4.10. Reports.
The Depositary shall make available for inspection by Holders
at its Principal Office copies of this Deposit Agreement and any notices,
reports and communications, including any proxy soliciting materials, received
from the Company which are both (i) received by the Depositary as the holder of
the Deposited Securities and (ii) made generally available to the holders of
such Deposited Securities by the Company. The Depositary shall also send
promptly to Holders of Receipts copies of
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such notices, reports and communications when furnished by the Company to the
Depositary pursuant to Section 5.6. 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 regulation of the Commission
applicable to the Company.
SECTION 4.11. Lists of Receipt Holders.
Promptly upon request by the Company, the Depositary shall
furnish to it a list of the names, addresses and holdings of American Depositary
Shares of all persons in whose names Receipts are registered on the books of the
Depositary and the total number of Shares of the Company deposited at the
account maintained by the Custodian for the purpose of this Deposit Agreement.
SECTION 4.12. Taxation.
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 authorities or
agencies, and the Depositary, the Custodian or the Company or its agents may
file such reports as are necessary to obtain benefits under the applicable tax
treaties for the Holders following the review and approval of such reports by
the Company and its advisors. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in cash or property (including Shares or rights to subscribe
therefor) is subject to any tax or governmental charges which the Depositary or
the Custodian is obligated to withhold, the Depositary may use such cash or
dispose, including by public or private sale, 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 reasonably necessary and practicable to
pay such taxes or governmental charges, and the Depositary shall distribute the
net proceeds of any such sale or the balance of any such cash or property after
deduction of such taxes or governmental charges to the Holders entitled thereto
in proportion to the number of American Depositary Shares held by them
respectively and the Depositary shall, if feasible without withholding for or on
account of taxes or other governmental charges, without registration of such
Shares under the Securities Act of 1933 and otherwise in compliance with
applicable law, distribute any unsold balance of such cash or property in
accordance with the provisions of this Deposit Agreement.
The Depositary or the Custodian will take all practicable
administrative actions necessary to obtain all tax refunds and to reduce German
withholding taxes on dividends and other distributions on the Deposited
Securities.
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SECTION 4.13. Monitoring of Dividends and Other Distributions.
Upon receipt of notices from the Company of dividends or any
other distributions, the Depositary shall use all reasonable efforts to insure
that the Custodian takes all necessary actions to receive all such dividends and
distributions on all Deposited Securities.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1. 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 keep books in such New York City
facilities for the registration of Receipts and transfers of Receipts which at
all reasonable times shall be open for inspection by Holders and the Company,
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 this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or
from time to time, when reasonably deemed expedient by it in connection with the
performance of its duties hereunder or at the request of the Company.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges or automated quotation systems
in the United States, the Depositary shall act as Registrar or, following
Consultation with the Company, appoint a registrar or one or more co-Registrars
for registration of such Receipts in accordance with any requirements of such
exchange or exchanges or system or systems and with the terms of any such
appointment. Such Registrar or co-Registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the request or with the approval of
the Company. Each Registrar (other than the Depositary) or co-Registrar of
Receipts appointed under this Section 5.1 shall give notice in writing within 5
business days of such appointment to the Company and the Depositary accepting
such appointment and agreeing to be bound by the applicable terms of this
Deposit Agreement.
The Company shall have the right to inspect transfer and
registration records of the Depositary, take copies thereof and require the
Depositary, the Registrar and any co-transfer agents or co-Registrars of
Receipts to supply copies of such portions of such records as the Company may
reasonably request.
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SECTION 5.2. Obligations of the Depositary, the Custodian and the
Company.
Each of the Company and its agents assumes no obligation nor
shall it be subject to any liability under this Deposit Agreement or the
Receipts to Holders or other persons, except to perform such obligations as are
specifically set forth in this Deposit Agreement without negligence or bad
faith. Each of the Depositary and its agent and the Custodian and its agents
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to Holders or other persons, except to perform such
obligations as are specifically set forth in this Deposit Agreement without
negligence or bad faith. The Depositary, the Custodian and the Company undertake
to perform such duties and only such duties as are specifically set forth in
this Deposit Agreement, and no implied covenants or obligations shall be read
into this Deposit Agreement against the Depositary, the Custodian or the Company
or their respective agents. Without limitation of the preceding, none of the
Depositary or its agents, the Custodian or its agents or the Company or its
agents 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, which in its opinion may involve expense or liability,
unless indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required, and no Custodian shall be under any
obligation whatsoever with respect to such proceedings, the Custodian being
responsible solely to the Depositary. None of the Depositary or its agents or
the Company or its agents shall be liable for any action or inaction by it or
them in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or any other
person believed by it or them in good faith to be competent to give such advice
or information. Each of the Depositary and its agents, the Custodian and its
agents and the Company and its agents may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for the manner in which any vote is cast
or for the effect of any such vote, provided that the Depositary acted in good
faith.
Subject to compliance with all applicable laws, rules and
regulations, the Depositary and the Custodian may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.3. Prevention or Delay in Performance by the Depositary, the
Custodian or the Company.
None of the Depositary, the Custodian, the Company or any of
their respective officers, directors, employees, agents or affiliates shall
incur any liability to any Holder or any other person if, by reason of any
provision of any present or future law, order of any government or agency
thereof or any court, decree or regulation of
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Germany, the United States or any other country, including any regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Articles of Association (Satzung) of the Company, any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Company or any of
their respective officers, directors, employees, agents or affiliates shall be
prevented or forbidden from, or delayed in, 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 shall or may be done or performed or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement.
Where by the terms of a distribution pursuant to Section 4.1,
Section 4.2 or Section 4.3 of this Deposit Agreement, or for any other reason,
such distribution may not be made available to some or all Holders, and the
Depositary may not dispose of such distribution on behalf of such Holders and
make the net proceeds available to such Holders, then the Depositary shall not
make such distribution available and shall allow any rights to such distribution
to lapse.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary.
The Depositary may at any time resign as Depositary hereunder
by giving 60 days' prior written notice of its resignation 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 upon
60 days' prior written notice of such removal delivered to the Depositary, which
removal shall become effective upon 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 satisfactory in form and substance
to the Company, 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; provided, however, such predecessor shall, upon
payment of all sums due to it and upon the written request of the Company,
execute and deliver an instrument satisfactory in form and substance to the
Company 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 Holders of all outstanding Receipts and such other books
and records maintained by such predecessor and its agents
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with respect to its function as Depositary hereunder. Such predecessor shall
cooperate in good faith with the Company to permit such successor to perform its
obligations hereunder as soon as possible following such successor's appointment
hereunder. Any such successor Depositary shall promptly mail notice of its
appointment to the Holders. Notwithstanding the foregoing, any such resignation
or removal and appointment of a successor Depositary shall not relieve the prior
depositary or the Company from its obligations and liabilities pursuant to
Section 5.7.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary for purposes of
this Deposit Agreement without the execution or filing of any document or any
further act.
SECTION 5.5. The Custodian.
The Depositary has appointed the Frankfurt/Main offices of
Dresdner Bank AG and Deutsche Bank AG as custodian and agent of the Depositary
for the purpose of this Deposit Agreement. A Custodian acting hereunder 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 written 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 such resignation there shall be no Custodian acting
hereunder, the Depositary shall with the prior written consent of the Company,
promptly after receiving such notice appoint a substitute custodian that is
organized under the laws of Germany which shall thereafter be the Custodian
hereunder. Whenever the Depositary in its reasonable discretion determines that
it is in the best interest of the Holders to do so, it may discharge any
Custodian hereunder and, with the prior written consent of the Company, appoint
a substitute custodian or appoint one or more additional custodians, each of
which shall thereafter be a Custodian hereunder. Any Custodian ceasing to act as
Custodian hereunder shall deliver all Deposited Securities held by it and all
other books and records maintained by it with respect to its function as a
Custodian hereunder to a Custodian continuing to act upon the instruction of the
Depositary. Each 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. Immediately upon any such
change, the Depositary shall give notice in writing to the Company, to all
Holders and to each other Custodian of the name, the address and the appointment
of any Custodian not named in the Receipts.
Upon the appointment of any successor Depositary hereunder,
any 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
any 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
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proper to give such Custodian full and complete power and authority as agent
hereunder of such successor Depositary.
SECTION 5.6. Notices and Reports to Holders.
No later than the date notice is given by the Company, by
publication or otherwise, of any meeting of holder 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 and the Custodian a copy of the notice thereof in the form given or
to be given to holders of such Shares or other Deposited Securities. The Company
will arrange for the translation into English, to the extent required pursuant
to any regulations of the Commission applicable to the Company 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
promptly mail copies thereof to all Holders of Receipts.
SECTION 5.7. Indemnification.
The Company agrees to indemnify the Depositary, its officers,
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or reasonable expense (including, but
not limited to, the reasonable fees and expenses of counsel) which may arise 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 officers, directors, employees,
agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 5.9) of a Receipt or Receipts in accordance
with Section 5.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 5.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) 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) 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 by the
Depositary or Custodian and not materially changed or altered by the
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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 officers,
directors, employees, agents and affiliates and hold each of them harmless from
any liability or reasonable expense (including, but not limited to, the
reasonable fees and expenses of counsel) 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, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") 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 (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify in writing the party obligated to provide such
indemnification (the "Indemnitor") of such Proceeding. The failure of the
Indemnitee to so notify the Indemnitor shall not impair the Indemnitee's ability
to seek indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the Indemnitee). The Indemnitee shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, (c) the Indemnitor fails, within ten (10) days prior to the date
the first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
different from or are in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent 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 the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss,
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expense or liability incurred by the Indemnitee as a result of a default
judgment entered against the Indemnitee unless such judgment was entered after
the Indemnitor agreed, in writing, to assume the defense of such Proceeding.
The obligations set forth in this Section 5.7 shall survive
the termination of this Deposit Agreement and the succession or substitution of
any indemnified person. No Holder shall have any rights under this Section 5.7.
SECTION 5.8. 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. 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 regarding
the Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), whichever applicable: (1) taxes and other governmental 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 and applicable to transfers of Shares to the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of Foreign
Currency pursuant to Section 4.5 (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 2.3, 4.3 or 4.4, and the surrender of Receipts
pursuant to Section 2.6 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
hereof, (7) a fee of $1.50 or less per certificate for a Receipt or Receipts for
transfers made pursuant to Section 2.5, and (8) a fee for the distribution of
securities pursuant to Section 4.2, 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 (8) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Holders.
The Depositary, subject to Section 5.9 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
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SECTION 5.9. Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
Unless requested in writing by the Company to cease doing so,
the Depositary may, notwithstanding Section 2.4 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release").
The Depositary may, pursuant to Section 2.6, 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 and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, 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 Holders, 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, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide 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 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
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 Holders 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.
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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. List of Restricted Securities Holders.
Upon the written request of the Depositary, 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.
The Company agrees to advise in writing each of the persons or entities so
listed that such Restricted Securities are ineligible for deposit hereunder. The
Depositary may rely on such a list or update but shall not be liable for any
action or omission made in reliance thereon.
SECTION 5.12. 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.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.1. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended without the consent
of the Holders by agreement between the Company and the Depositary 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), or which shall otherwise prejudice any substantial existing right of
Holders, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after the Depositary shall have given written notice
of such amendment to the Holders of outstanding Receipts. Every Holder at the
expiration of such 30-day period shall be deemed, by continuing to hold such
Receipt, 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 a Holder to surrender such Receipt and receive therefor the whole number of
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
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SECTION 6.2. 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 Holders of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement (upon 30 days prior written notice to the
Holders) if 60 days shall have expired after the Depositary shall have delivered
to the Company (receipt thereof confirmed by 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 5.4 hereof within such
60-day period. On and after the date of termination, the Holder of a Receipt
will upon (i) surrender of such Receipt at the Principal Office of the
Depositary, (ii) payment of the fee of the Depositary for the surrender of
receipts referred to in Section 2.6, and (iii) payment of any applicable taxes
or governmental charges, be entitled to delivery, to him or upon his order, of
the Deposited Securities represented by the American Depositary Shares evidenced
by such surrendered Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary shall thereafter discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Holders thereof, shall not accept deposits of Shares (and shall
instruct each Custodian to act accordingly), 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 property and rights and convert
Deposited Securities into cash 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 any applicable taxes or governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell at public or private sale, at such place or places and upon
such terms as it may deem reasonably proper, the Deposited Securities then held
hereunder and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it hereunder, uninvested and without liability
for interest, for the pro rata benefit of the Holders of Receipts which have not
theretofore been surrendered. 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 and for its obligations under Section 5.7
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 5.7 and 5.8 hereof.
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ARTICLE 7. MISCELLANEOUS
SECTION 7.1. 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.
SECTION 7.2. 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 7.3. 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 7.4. Holders as Parties, Binding Effect.
The Holders 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.
SECTION 7.5. 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 courier or cable,
telex or facsimile transmission confirmed by letter, addressed to BASF
Aktiengesellschaft, Attention: ZFK, Xxxx-Bosch - Xxxxxxx 00, X-00000
Xxxxxxxxxxxx, Xxxxxxx, or to any other address which the Company may specify in
writing to the Depositary.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if personally delivered or sent by courier 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: ADR
Department; facsimile number: (000) 000-0000, or to any other address which the
Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed
to have been duly given if personally delivered, or sent by first class mail
postage prepaid, if overseas, airmail postage prepaid or sent by air courier or
cable, telex or facsimile
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transmission covered by letter, addressed to such Holder at the address of such
Holder as it appears on the transfer books of Receipts of the Depositary, or, if
such Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
designated in such request.
Notice given as aforesaid (i) to the Company or the Depositary
shall be deemed to be effected when received, and (ii) to a Holder by mail or by
air courier, cable, telex or facsimile transmission shall be deemed to be
effected 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 in a post-office letter box. The Depositary or the Company may act
upon any cable, telex or facsimile transmission received by it from the other or
from any Holder of a Receipt, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be covered by letter as aforesaid.
SECTION 7.6. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and all provisions hereof and thereof
shall be governed by the laws of the State of New York without regard to the
principles of conflicts of laws thereof.
SECTION 7.7. Assignment.
Unless otherwise agreed in writing, the Deposit Agreement may
not be assigned by either the Company or the Depositary.
SECTION 7.8. 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(l) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
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IN WITNESS WHEREOF, BASF AKTIENGESELLSCHAFT and THE BANK OF NEW YORK
have duly executed this Deposit Agreement as of the day and year first above set
forth and all Holders of Receipts shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
BASF AKTIENGESELLSCHAFT
By____________________________
Name:
Title:
By____________________________
Name:
Title:
THE BANK OF NEW YORK
as Depositary
By____________________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
CERTAIN RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE
WITHHELD IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (11) HEREOF, INCLUDING,
WITHOUT LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS OR OTHER
PAYMENTS
Number ___________ (CUSIP [ ])
______________________________________
AMERICAN DEPOSITARY SHARES
(American Depositary Shares
Representing One (1) Deposited Share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
REPRESENTING
DEPOSITED ORDINARY SHARES,
NO PAR VALUE,
OF
BASF AKTIENGESELLSCHAFT
(Organized under the laws of the Federal Republic of Germany)
THE BANK OF NEW YORK, a New York banking corporation organized and
existing under the laws of the United States of America, as Depositary (the
"Depositary"), hereby certifies that __________________ is the Holder of
________________ American Depositary Shares, representing deposited ordinary
shares, no par value, or evidence of the right to receive such shares (the
"Shares"), of BASF Aktiengesellschaft, a stock corporation organized and
existing under the laws of the Federal Republic of Germany (the "Company"). At
the date hereof, each American Depositary Share represents one (1) Share
deposited under the Deposit Agreement (as hereinafter defined) with the
Custodian, which at the date of execution of the Deposit Agreement is the
Frankfurt/Main offices of Dresdner Bank AG and Deutsche Bank AG. The ratio of
Shares to American Depositary Shares is subject to amendment as provided in the
Deposit Agreement.
40
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the "Receipts"), all issued and to be issued upon the terms
and conditions set forth in the Deposit Agreement, dated as of December 1, 1999,
as amended and restated as ______________, 2000 (herein called the "Deposit
Agreement"), among the Company, the Depositary and all Holders (including
beneficial owners) from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
Holders 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 by the Depositary or the Custodian in
respect or in lieu 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 Principal Office and at the
Principal Office of the Custodian. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are qualified in their entirety by and subject to the detailed
provisions of the Deposit Agreement, to which reference is hereby made. Terms
defined in the Deposit Agreement and not otherwise defined herein have the same
defined meanings set forth in the Deposit Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon (i)
delivery of this Receipt to the Depositary for the purpose of withdrawal of the
whole number of Deposited Securities represented by the American Depositary
Shares evidenced by this Receipt, (ii) payment to the Depositary of the
surrender fee provided in Paragraph (8) of this Receipt by the person delivering
this Receipt for cancellation and payment of all taxes, duties and other
governmental charges and fees payable in connection with the delivery of
Deposited Securities against the surrender of this Receipt, and (iii) delivery
of written instructions of the Holder directing the Depositary to cause such
whole number of Deposited Securities being withdrawn, together with a new
Receipt evidencing any fractional Deposited Securities, to be delivered to, or
upon the written order of, the person or persons designated in such
instructions, the Holder hereof
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is entitled to delivery, to him or upon his order, of such whole number of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by this Receipt, together with a new Receipt evidencing any fractional
Deposited Securities. Delivery of such Deposited Securities may be made by (a)
delivery or transfer to the account of a German securities bank with Deutsche
Borse Clearing AG or through the facilities of Cedel, S.A., or Xxxxxx Guaranty
Trust of New York, Brussels office, as operator of the Euroclear System, for the
benefit of such Holder or as ordered by it and (b) delivery of any other
securities, property and cash to which such Holder is then entitled in respect
of such Receipts to such Holder or as ordered by it. Such delivery of Deposited
Securities and new Receipt, if any, shall be made without unreasonable delay.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing a fractional interest in one Share or
one other Deposited Security. In the case of surrender of a Receipt evidencing
any number of American Depositary Shares representing other than a whole number
of Shares or other Deposited Securities, the Depositary shall cause ownership of
the appropriate whole number of Shares or other Deposited Securities to be
recorded in the name of the Holder surrendering such Receipt and shall issue and
deliver to the person surrendering such Receipt a new Receipt evidencing
American Depositary Shares representing any remaining fractional interest.
(3) Registration of Transfer; Issuance of New Receipts. The Depositary
shall, subject to the terms and conditions of this Deposit Agreement and any
Receipt, register transfers of Receipts on its transfer books, upon receipt of
proper documentation therefor requested by the Depositary, including without
limitation, surrender of this Receipt by the Holder hereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer and duly stamped as may be required by any applicable law; provided,
however, that the Depositary may close the transfer books at any time or from
time to time, following Consultation with the Company to the extent practicable,
when reasonably deemed expedient by it in connection with the performance
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of its duties under the Deposit Agreement, or at the request of the Company. The
Depositary shall, subject to the terms and conditions of the Deposit Agreement,
upon surrender of a Receipt or Receipts for the purpose of obtaining a lesser or
greater number of Receipts, execute and deliver a new Receipt or Receipts in the
name of the same Holder for any authorized whole number of American Depositary
Shares requested. Notwithstanding the foregoing, such new Receipt(s) shall
evidence the same aggregate whole number of American Depositary Shares as the
Receipt or Receipts surrendered.
(4) Limitations on Execution and Delivery, Transfer and Surrender of
Receipts. As a condition precedent to the execution and delivery, registration
of transfer or surrender of any Receipt, the delivery of any distribution in
respect thereof or the withdrawal of any Deposited Securities, the Company, the
Depositary or the Custodian may require from the Holder, the presenter of a
Receipt or the depositor of Shares (i) payment 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 Deposited Securities being withdrawn)
and payment of any charges of the Depositary upon delivery of Receipts against
deposits of Shares and upon withdrawal of Deposited Securities against surrender
of Receipts as set forth in Section 5.8 of the Deposit Agreement; (ii)
compliance with such reasonable regulations, if any, as the Depositary and the
Company may establish consistent with the provisions of the Deposit Agreement;
and (iii) production of proof satisfactory to it as to the identity and
genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with the Deposit Agreement,
including but not limited to, in the case of Receipts, a signature guarantee in
accordance with industry practice.
The delivery of Receipts against, or adjustments in the records of
the Depositary to reflect, deposits of Shares generally or of particular Shares
may be suspended or withheld, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfer of Receipts
generally may be suspended,
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43
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 or regulatory authority, body or commission or
any meeting of shareholders of the Company or under any provision of this
Deposit Agreement or the Articles of Association (Satzung) of the Company, or
for any other reason, subject to the provisions of the following sentence.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
not be suspended, except as required in connection with (i) temporary delays
caused by closing the transfer books of the Depositary or the deposit of Shares
in connection with voting at a shareholders meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges and (iii)
compliance with any United States 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 required to be registered
under provisions of the Securities Act of 1933 unless a registration statement
is in effect as to such Shares. The Depositary will comply with written
instructions of the Company not to accept for deposit under the Deposit
Agreement any Shares identified in such instructions at such times 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.
(5) Liability of Holder for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to this Receipt or any
Deposited Securities represented by the American Depositary Shares evidenced
hereby, such tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse, and the Company shall be
under no obligation, to effect any registration of transfer of all or part of
this Receipt or to issue any new Receipt or Receipts or to permit any deposit or
withdrawal of Deposited Securities represented by the American Depositary Shares
evidenced hereby until such payment is made, and the
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44
Company and the Depositary may withhold or deduct from any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced hereby, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge;
the Holder hereof remaining liable for any deficiency.
(6) Warranties of Depositors. Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
Shares and each certificate therefor are free and clear of any lien,
encumbrance, security interest, charge, mortgage, pledge or restriction on
transfer, (ii) such Shares have been validly issued, fully paid and are
nonassessable and are free of any pre-emptive rights of the holders of
outstanding Shares, (iii) such Shares are accompanied by all dividend coupons in
respect of dividends to be paid in the future on such Shares (or appropriate
evidence thereof), (iv) the person making such deposit is duly authorized to do
so, and (v) the deposit of such Shares or sale of Receipts issuable upon such
deposit is not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and the issuance or
cancellation of Receipts.
(7) Filing Proofs, Certificates and Other Information. In order to enable
the Depositary and the Company to comply with applicable laws and to perform
their respective obligations hereunder, any person depositing Shares or any
Holder may be required from time to time (i) to file proof of (a) citizenship or
residence, (b) exchange control approval and payment of all taxes and other
governmental charges, (c) compliance with all applicable laws, regulations and
provisions of or governing Deposited Securities and the terms of the Deposit
Agreement, and (d) legal or beneficial ownership of Receipts, Deposited
Securities and other securities, and the nature of such interest and (ii) to
execute and deliver such certificates and to make such representations and
warranties in addition to those set forth in Section 2.3 of the Deposit
Agreement as the Depositary or the Company may deem necessary or proper. The
Depositary may, and
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45
shall if reasonably requested by the Company, 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 represented by the American Depositary Shares evidenced by
such Receipt until such proof or other information is filed or such certificates
are executed or such representations and warranties are made to the satisfaction
of the Company and the Depositary. The Depositary shall provide the Company in a
timely manner copies of any such proofs and certificates and such written
representations and warranties that it receives. Each Holder agrees to provide
any information requested by the Company or the Depositary pursuant to this
Article.
(8) 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.
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 regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3 of
the Deposit Agreement), whichever applicable: (1) taxes and other governmental
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 and applicable to transfers of Shares to the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals under the 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
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46
Currency pursuant to Section 4.5 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 2.3, 4.3 or 4.4 of the Deposit
Agreement, and the surrender of Receipts pursuant to Section 2.6 or 6.2 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 the Deposit
Agreement including, but not limited to, Sections 4.1 through 4.4 of the Deposit
Agreement, (7) a fee of $1.50 or less per certificate for a Receipt or Receipts
for transfers made pursuant to Section 2.5 of the Deposit Agreement, and (8) a
fee for the distribution of securities pursuant to Section 4.2 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 (8) treating all such securities as if they were Shares), but which
securities are instead distributed by the Depositary to Holders.
The Depositary, subject to Section 5.9 of the Deposit Agreement, may
own and deal in any class of securities of the Company and its affiliates and in
Receipts.
(9) Title to Receipt. Subject to any limitations set forth in this
Receipt, title to this Receipt and to the American Depositary Shares evidenced
hereby, when properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice),
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Company and the Depositary may deem and
treat the Holder of this Receipt as the absolute owner hereof for all purposes,
including but not limited to the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the 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
the Deposit Agreement to any holder of this Receipt unless such holder is the
Holder hereof.
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(10) Validity of Receipt. No Receipt shall be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose, unless
this Receipt shall have been issued, dated and executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary,
and if a Registrar for the Receipts shall have been appointed, countersigned by
the manual or facsimile signature of a duly authorized signatory of such
Registrar and dated by such signatory.
(11) Compliance with Law. The Depositary agrees to comply with all
applicable laws. Each Holder agrees that such Holder is bound by and subject to
the Articles of Association (Satzung) of the Company as if such Holder were a
holder of Shares, and each Holder agrees to comply with all applicable
provisions of German law and the Articles of Association (Satzung) of the
Company with regard to notification to the Company of such Holder's interest in
Shares (including those Shares represented by American Depositary Shares),
including any provision requiring such Holder to disclose within a prescribed
period of time an interest in Shares amounting to, exceeding or falling below
5%, 10%, 25%, 50% and 75% of such Shares outstanding or such other percentage as
may be required from time to time pursuant to any provision of German law or
otherwise. Each Holder acknowledges that failure by a Holder to provide on a
timely basis any such required notification of such Holder's interest in Shares
may result in the loss of certain rights in respect of such Holder's American
Depositary Shares including, without limitation, voting rights and the right to
receive dividends or other payments in respect of the Shares represented by such
American Depositary Shares. Each such Holder required to provide the
notification described above may deliver such notification to the Depositary for
forwarding to the Company. The Depositary agrees to forward to the Company, as
soon as practicable, any such notifications received by the Depositary from any
Holder. Notwithstanding the foregoing, any notification by a Holder to be made
under Section 3.3 of the Deposit Agreement shall only be deemed to be effected
and provided to the Company at the time when the Company has received such
notification.
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(12) Disclosure of Beneficial Ownership of Receipts. The Company and the
Depositary may from time to time request Holders or former Holders to provide
information as to the capacity in which they hold or held Receipts and regarding
the identity of any other persons then or previously interested in such Receipts
and various other matters. Each such Holder agrees to provide any such
information reasonably requested by the Company or the Depositary pursuant to
Section 3.4 of the Deposit Agreement and such agreement shall survive any
disposition of such Holder's interest in Shares or Receipts. The Depositary
agrees to use its reasonable efforts to comply with written instructions
received from the Company requesting that the Depositary forward any such
requests to such Holders and to the last known address, if any, of such former
Holders and to forward to the Company any 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 American
Depositary Shares, 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 former Holders.
Dated:
THE BANK OF NEW YORK,
as Depositary
By: ________________________
The address of the Principal Office of the Depositary is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions; Rights. Whenever the Custodian or the
Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, subject to the provisions of Section
4.6 of the Deposit Agreement, convert such dividend or distribution, if
applicable, into Dollars and shall as promptly as practicable distribute the
amount thus received (net of the expenses of the Custodian or the Depositary, as
the case may be, in connection with the conversion of such Foreign Currency into
Dollars and such other fees and expenses as provided in Section 5.8 of the
Deposit Agreement) to the Holders 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, the
Depositary or the Custodian shall be required to withhold and does withhold,
subject to Section 4.12 of the Deposit Agreement from any cash dividend or other
cash distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, the amount distributed to the Holders of
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
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 reasonable judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall as promptly as
practicable 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 Holders entitled thereto in proportion to the number
of American Depositary Shares held by them respectively or, if the Depositary
shall have distributed any warrants or other instruments which entitle the
holders thereof to such
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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 Holders 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 5.8 of the Deposit Agreement. The
Depositary shall promptly inform the Company of the exchange rate at which such
Foreign Currency conversion has been carried out.
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;
provided, however, that if such application involves or refers to the Company or
is made on behalf of the Company, the Depositary shall, at the written request
of the Company, provide the Company a reasonable opportunity to review and
comment on such application before it is filed.
If at any time the Depositary shall determine, following
Consultation with the Company, that in its judgment any Foreign Currency
received by the Depositary 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 which is required for such conversion is denied or
in the 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 Holders 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 Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the Foreign Currency
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received by the Depositary to, or hold such balance uninvested and without
liability for interest thereon for the respective accounts of, the Holders
entitled thereto.
Subject to Section 4.12 of the Deposit Agreement, whenever the
Custodian or the Depositary shall receive any distribution other than
distributions described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement
upon any Deposited Securities, the Depositary shall, as promptly as practicable,
after Consultation with the Company, cause the securities or property received
by it or by the Custodian to be distributed to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary deems equitable and practicable for accomplishing such distribution;
provided, however, that if the Company shall so direct, or if in the reasonable
opinion of the Depositary such distribution cannot be made or cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including any requirement that the Company, the Custodian 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 Holders) the Depositary determines that such distribution is
not feasible or may not be legally made to some or all Holders, the Depositary
may, following Consultation with the Company, adopt such method as it deems
lawful, equitable and practicable for the purpose of effecting such
distribution, including the sale (either public or private, at such place or
places and upon such terms as it may deem reasonably proper) of the securities
or property thus received, or any part thereof and, in such case, the net
proceeds of any such sale shall be distributed by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash; provided
that any unsold balance of such securities or property shall be distributed by
the Depositary to the Holders entitled thereto, if such distribution is feasible
without withholding for or on account of any taxes or other governmental charges
and without registration under the Securities Act of 1933, in accordance with
such equitable and practicable method as the Depositary may have adopted;
provided, further, that no distribution to Holders pursuant to Section 4.2 of
the
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Deposit Agreement shall be unreasonably delayed by any action of the Depositary
or the Custodian. To the extent such property, or the net proceeds thereof, is
not effectively distributed to Holders as provided herein, the same shall
constitute Deposited Securities and each American Depositary Share shall
thereafter also represent its proportionate interest in such property or net
proceeds.
If any distribution upon any Deposited Securities consists of a
dividend in, or distribution without consideration of, Shares, the Depositary
may, and shall, if the Company so requests, distribute to the Holders 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 number of Shares received in such dividend or
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
in the manner and subject to the conditions described in Section 4.1 of the
Deposit Agreement. Until the distribution of such Receipts and net proceeds in
accordance with the preceding sentence, each American Depositary Share shall
also represent its proportionate interest in the additional Shares distributed
upon the Deposited Securities represented thereby and such net proceeds.
Notwithstanding the foregoing, if for any reason (including any requirement that
the Company, the Custodian or the Depositary withhold an amount on account of
taxes or other governmental charges or that such Shares must be registered under
the Securities Act of 1933 in order to be distributed to Holders) the
Depositary, after Consultation with the Company, determines that a distribution
in Shares is not feasible or may not be legally made to some or all Holders, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including the sale (either public or
private, at such place or places and upon such terms as it may deem reasonably
proper) of the Shares thus received or any part thereof and, in such case, the
net proceeds of any such sale shall be distributed by the Depositary to the
Holders entitled thereto as in the case of a distribution in cash. No
distribution to Holders
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pursuant to Section 4.3. of the Deposit Agreement shall be unreasonably delayed
by any action of the Depositary or the Custodian.
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 shall following
Consultation with the Company as to the procedure to be followed (i) make such
rights available to the Holders entitled thereto as provided in clause (a)
below, (ii) dispose of such rights on behalf of such Holders and make the net
proceeds available in Dollars to such Holders as provided in clause (b) below or
(iii) if by the terms of such rights offering or by reason of applicable law the
Depositary can neither make such rights available to such Holders nor dispose of
such rights and make the net proceeds available to such Holders, then the
Depositary shall allow the rights to lapse.
If at the time of the rights offering the Depositary determines,
following Consultation with the Company:
(a) that it is lawful and feasible to make such rights available to
all or certain Holders by means of warrants or otherwise, the Depositary shall
distribute to every Holder to whom it determines the distribution to be lawful
and feasible, in proportion to the number of American Depositary Shares held by
such Holder, warrants or other instruments therefor in such form as it deems
appropriate, or employ such other method as it may deem feasible in order to
facilitate the exercise, sale or transfer of rights by such Holders or the sale
or resale of securities obtainable upon exercise of such rights by such Holders;
or
(b) that it is not lawful or not feasible to make such rights
available to all or certain Holders by means of warrants or otherwise, or if the
rights represented by such warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary shall use its reasonable efforts
to sell such rights or warrants or other instruments, at a public or private
sale, at such place or places and upon such terms as it
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may deem reasonably proper, and allocate the net proceeds of any such sale (net
of all taxes and governmental charges payable in connection with such rights and
the fees of the Depositary set forth in Section 5.8 of the Deposit Agreement)
for the account of the Holders otherwise entitled to such rights, warrants or
other instruments upon an averaged or other practicable basis without regard to
any distinctions among such Holders because of the application of exchange
restrictions with regard to a particular Holder or otherwise and distribute such
net proceeds to the extent practicable as in the case of a distribution of cash
pursuant to Section 4.1 of the Deposit Agreement.
In circumstances in which rights would otherwise not be distributed,
if a Holder requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such
Holder under the Deposit Agreement, the Depositary will make such rights
available to such Holder 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 Holder has executed such documents as the Company has
determined in its sole discretion are required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon instruction from any such Holder
pursuant to such warrants or other instruments to the Depositary to exercise
such rights, upon payment by such Holder to the Depositary for the account of
such Holder 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 of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall on behalf of such Holder, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be deposited with the Custodian pursuant to Section 2.2 of the Deposit
Agreement, and the Depositary shall pursuant to Section 2.4 of the Deposit
Agreement, execute and deliver Receipts to such Holder. In the case of certain
distributions pursuant to clause (a) of the second paragraph of Section 4.4 of
the Deposit Agreement or pursuant to the third
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paragraph of Section 4.4 of the Deposit Agreement, such Receipts shall be
legended in accordance with instructions of the Company, and shall be subject to
such restrictions on sale, deposit, cancellation and transfer as the Depositary
shall deem necessary or shall be instructed by the Company.
If registration under the Securities Act of 1933 of the rights or
the securities to which any rights relate is required in order for the Company
to offer such rights to Holders of Receipts and to sell the securities
represented by such rights, the Depositary will not offer such rights unless and
until a registration statement is in effect or such rights and the securities to
which such rights relate are exempt from registration under the Securities Act
of 1933; provided that nothing in the Deposit Agreement shall create, or shall
be construed to create, any obligation on the part of the Company to file such a
registration statement or to endeavor to have such a registration statement
declared effective.
In the event that the rights and the securities to which such rights
relate are not registered under the Securities Act of 1933, the Depositary shall
not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to any particular Holder.
(14) Record Dates. Whenever any cash dividend or other cash distribution
is to be declared and paid or any distribution other than cash is to be declared
and made, or whenever rights are to be issued with respect to the 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 receives notice of any meeting of, or solicitation of
consents or proxies from, holders of Shares or other Deposited Securities, or
whenever the Company or the Depositary finds it necessary or convenient in
respect of any matter, the Depositary shall fix a record date (which shall (i)
to the extent practicable, be the same date that holders of Shares or other
Deposited Securities shall be entitled to receive or exercise such rights, and
(ii) with respect to record dates that are not the same as a corresponding
record date set by the
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Company, be fixed only after Consultation with the Company) (a) for the
determination of the Holders who shall be entitled (i) to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or (ii) to give
instructions for the exercise of voting rights, if any, at any such meeting, or
to receive information as to such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to the provisions of Sections 4.1 through 4.6 and to the other terms and
conditions of the Deposit Agreement, the Holders on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of the
sale thereof or to exercise the rights of Holders with respect to such changed
number of Shares represented by each American Depositary Share 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.
(15) 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, mail 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 therefore pursuant to Section 4.9 of the Deposit Agreement will be
entitled subject to all applicable provisions of law, including any laws of
Germany, the Articles of Association (Satzung) of the Company and the Deposit
Agreement, 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 American Depositary Shares, (c) specifying how and when such
instructions may be given, and (d) stating that if no voting instructions are
received from a Holder on or before the date established by the Depositary for
such purpose, such Holder shall be deemed to have instructed the Depositary not
to vote the Deposited Securities underlying such Holder's American Depositary
Shares. Upon receipt of instructions of a Holder on
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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 is
practicable and permitted under applicable law, the Company's Articles of
Association (Satzung) and the provisions of or governing Deposited Securities,
to vote or cause to be voted the Deposited Securities underlying such Holder's
American Depositary Shares in accordance with such instructions. Upon the
request of a Holder who has not previously given instructions to the Depositary
after receipt of the Notice as to the exercise of voting rights pertaining to
the Deposited Securities underlying such Holder's American Depositary Shares,
and subject to compliance with any reasonable regulations the Depositary may
establish, the Depositary will endeavor to provide such Holder (or a person
designated by such Holder) with the documentation necessary to attend a meeting
of holders of Deposited Securities.
The Depositary shall not vote or cause to be voted Deposited
Securities, other than in accordance with such instructions received from
Holders of American Depositary Shares.
The Depositary will endeavor to ensure that on any date on which it
votes or causes to be voted Deposited Securities pursuant to Section 4.8 of the
Deposit Agreement, it will have on deposit under this Agreement the number of
Deposited Securities with respect to which it has received voting instructions
from Holders. In the event that, 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.
The Depositary shall use its best efforts to vote or cause to be
voted Shares or other Deposited Securities underlying Receipts in accordance
with instructions received from Holders in accordance with Section 4.8 of the
Deposit Agreement; provided, however, that the Depositary shall not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which
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any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
Nothing in the Deposit Agreement shall be construed to grant a
holder any voting rights with respect to Deposited Securities to which, by their
terms, voting rights do not otherwise attach.
(16) Changes Affecting Deposited Securities. In circumstances where
the provisions of Section 4.3 of the Deposit Agreement do not apply, upon any
change in nominal value or any 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 the Custodian in exchange for, or in conversion,
replacement or otherwise in respect of, Deposited Securities shall be treated as
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares evidenced by the Receipts shall, subject to the terms of the Deposit
Agreement and applicable laws, including any applicable provisions of the
Securities Act of 1933, thenceforth represent the Deposited Securities so
received unless and until additional or new Receipts are delivered pursuant to
the following sentence. In any such case the Depositary may, and shall if the
Company requests, at no cost to Holders, execute and deliver additional Receipts
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 newly
received Deposited Securities.
Immediately upon the occurrence of any such change, conversion or
exchange covered by Section 4.9 of the Deposit Agreement in respect of the
Deposited Securities, the Depositary shall give notice thereof in writing to all
Holders. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, following Consultation with the Company, or shall, upon request of the
Company, sell such securities at a public or private sale, at such place or
places and upon such terms as it may deem proper, and
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may allocate the net proceeds of such sale for the account of the Holders
otherwise entitled to such securities upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.1 of the Deposit Agreement.
(17) Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders at its Principal Office copies of the
Deposit Agreement and any notices, reports and communications, including any
proxy soliciting materials, received from the Company which 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 promptly to Holders of Receipts copies
of such notices, reports and communications when furnished by the Company to the
Depositary pursuant to Section 5.6 of 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 regulation
of the Commission applicable to the Company. The Depositary shall keep books in
such New York City facilities for the registration of Receipts and transfers of
Receipts which at all reasonable times shall be open for inspection by Holders
and the Company, 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 Deposit Agreement or the
Receipts.
(18) Taxation. 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
authorities or agencies, and the Depositary, the Custodian or the Company or its
agents may file such reports as are necessary to obtain benefits under the
applicable tax treaties for the Holders following the review and approval of
such reports by the Company and its advisors.
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Notwithstanding any other provision of the Deposit Agreement, in the event that
the Depositary determines that any distribution in cash or property (including
Shares or rights to subscribe therefor) is subject to any tax or governmental
charges which the Depositary or the Custodian is obligated to withhold, the
Depositary may use such cash or dispose, including by public or private sale, 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 governmental charges, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
cash or property after deduction of such taxes or governmental charges to the
Holders entitled thereto in proportion to the number of American Depositary
Shares held by them respectively and the Depositary shall, if feasible without
withholding for or on account of taxes or other governmental charges, without
registration of such Shares under the Securities Act of 1933 and otherwise in
compliance with applicable law, distribute any unsold balance of such cash or
property in accordance with the provisions of the Deposit Agreement.
The Depositary or the Custodian will take all practicable
administrative actions necessary to obtain all tax refunds and to reduce German
withholding taxes on dividends and other distributions on the Deposited
Securities.
(19) Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.4 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.6 of the Deposit
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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 and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, 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 Holders, 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, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide 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 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 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 Holders 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
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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.
(20) Liability of the Company and the Depositary. None of the Depositary,
the Custodian, the Company or any of their respective officers, directors,
employees, agents or affiliates shall incur any liability to any Holder or any
other person if, by reason of any provision of any present or future law, order
of any government or agency thereof or any court, decree or regulation of
Germany, the United States or any other country, including any regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Articles of Association (Satzung) of the Company, any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstance beyond its control, the Depositary or the Company or any of
their respective officers, directors, employees, agents or affiliates shall be
prevented or forbidden from, or delayed in, 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 shall or may be done or performed or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement. Where by the terms of a distribution pursuant to
Section 4.1, Section 4.2 or Section 4.3 of the Deposit Agreement, or for any
other reason, such distribution or may not be made available to some or all
Holders, and the Depositary may not dispose of such distribution on behalf of
the such Holders and make the net proceeds available to such Holders, then the
Depositary shall not make such distribution available and shall allow any rights
to such distribution to lapse. Each of the Company, the Depositary and the
Custodian and their respective agents assumes no obligation nor shall any of
them be subject to any liability under the Deposit Agreement or the Receipts to
Holders or other persons, except that they agree to perform such duties as are
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary, the Custodian and the Company undertake to perform such duties
and
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only such duties as are specifically set forth in the Deposit Agreement, and no
implied covenants or obligations will be read into the Deposit Agreement against
the Depositary, the Custodian or the Company or their respective agents. Without
limitation of the preceding, none of the Depositary or its agents, the Custodian
or its agents or the Company or its agents 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, which in its opinion
may involve expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the Custodian being responsible solely to the Depositary. None of
the Depositary or its agents or the Company or its agents shall be liable for
any action or inaction by it or them in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or any other person believed by it or them in good faith to
be competent to give such advice or information. Subject to compliance with all
applicable laws, rules and regulations, the Depositary and the Custodian may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
(21) Resignation and Removal of Depositary; Substitution of the Custodian.
The Depositary may at any time resign as Depositary under the Deposit Agreement
by giving 60 days' prior written notice of its resignation 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 upon 60 days' prior written
notice of such removal delivered to the Depositary, which removal shall become
effective upon the appointment of a successor Depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The term "Depositary"
shall also refer to any successor depositary appointment pursuant to this
Paragraph (22). The Depositary may at any time, following Consultation with the
Company, appoint substitute or additional Custodians and the term "Custodian"
shall also refer to such substitute.
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(22) Amendment of Deposit Agreement and Receipts. The form of the Receipts
and any provisions of the Deposit Agreement may at any time and from time to
time be amended without the consent of the Holders by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes or other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders, shall not, however, become
effective as to outstanding Receipts until the expiration of 30 days after the
Depositary shall have given written notice of such amendment to the Holders of
outstanding Receipts. Every Holder at the expiration of such 30-day period shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement or the Receipt as amended
thereby. In no event shall any amendment impair the right of the Holder hereof
to surrender this Receipt and receive therefor the whole number of Deposited
Securities represented hereby, except in order to comply with mandatory
provisions of applicable law.
(23) Termination of Deposit Agreement. The Depositary shall at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement (upon 30 days' prior written notice
to the Holders) if 60 days shall have expired after the Depositary shall have
delivered to the Company (receipt thereof confirmed by 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 5.4 of the Deposit
Agreement within such 60 days. On and after the date of termination, the Holder
of a Receipt will, upon (a) surrender of such Receipt at the Principal Office of
the Depositary, (b) payment of the fee of the Depositary for the surrender of
receipts referred to in Section 2.6 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 Deposited Securities represented by the American
Depositary
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Shares evidenced by such surrendered Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary shall thereafter
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Holders thereof, shall not accept deposits of
Shares (and shall instruct each Custodian to act accordingly) and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except the collection of dividends and other distributions pertaining to
Deposited Securities, the sale of property and rights, the conversion of
Deposited Securities into cash as provided in the Deposit Agreement and the
delivery of 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 any applicable taxes or governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell at public or private sale, at such place or places and upon
such terms as it may deem reasonably proper, the Deposited Securities then held
under the Deposit Agreement and may thereafter hold the net proceeds of any such
sale, together with any other cash then held by it under the Deposit Agreement,
uninvested and without liability for interest, for the pro rata benefit of the
Holders of Receipts which have not theretofore been surrendered. 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 and
for its obligations under Section 5.7 of the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement to the contrary, the Company and the Depositary each agrees
that it will not exercise any rights it has under the 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.(l) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
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