DEUTSCHE BANK AKTIENGESELLSCHAFT WARRANTS
Exhibit
99.4
WARRANTS
September
29, 2009
To the
Agents listed on the signature page hereof, and each person that
shall
have become an Agent as provided in Section 2(d) hereof:
Dear
Sirs/Mesdames:
Deutsche
Bank Aktiengesellschaft, a bank organized under the laws of the Federal Republic
of Germany (the “Bank”),
confirms its agreement with the Agents with respect to the issue and sale from
time to time by the Bank, acting through one or more of its branches (each, an
“offering”) of its
warrants (the “Securities”) in one or more
series.
The
Securities will be issued pursuant to the provisions of a warrant agreement,
dated as of November 15, 2007, among the Bank and Deutsche Bank Trust Company
Americas, as issuing agent, paying agent and warrant agent (including any
successor warrant agent thereunder, the “Warrant Agent”) (as such
agreement may be supplemented or amended from time to time, the “Warrant
Agreement”). The Securities will have the exercise dates,
expiration or maturity dates, interest rates, redemption provisions, if any, and
other terms as set forth in supplements to the Prospectus referred to below and
in Term Sheets (as defined below).
On the
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, you agree, upon such appointment, to use
reasonable efforts to solicit and receive offers to purchase Securities upon
terms acceptable to the Bank at such times and in such amounts as the Bank shall
from time to time specify.
The Bank
has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement (No. 333-162195), including a prospectus, relating to the
Securities. Such registration statement, including the information
incorporated by reference therein and the exhibits thereto, as amended at any
Representation Date (as hereinafter defined), is hereinafter referred to as the
“Registration
Statement.” The prospectus included in the Registration
Statement, as supplemented by a prospectus supplement filed with the Commission
on September 29, 2009 (the “Warrant Program Prospectus
Supplement”), any other prospectus supplement and/or one or more product
supplements and/or pricing supplements setting forth the terms of the
Securities, including all material incorporated by reference therein, in the
form in which such prospectus, prospectus supplement and/or product
supplement(s)
and/or final pricing supplement have most recently been filed, or transmitted
for filing, with the Commission pursuant to paragraph (b) of Rule 424 of the
rules and regulations adopted by the Commission under the Securities Act of 1933
(the “Securities Act”),
is hereinafter referred to as the “Prospectus.” The
terms “supplement,”
“amendment” and “amend” as used herein shall
include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Prospectus by the Bank with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
1. Representations and
Warranties. The Bank represents and warrants to and agrees
with you as of the Commencement Date (as hereinafter defined), as of each date
on which you solicit offers to purchase Securities, as of each date on which the
Bank accepts an offer to purchase Securities, as of each date the Bank issues
and delivers Securities, and as of each date the Registration Statement or the
Prospectus is amended or supplemented, as follows (each, a “Representation Date”), it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement and the Prospectus, each as
amended or supplemented to each such date:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission; and no
proceeding pursuant to Section 8A of the Securities Act against the Bank or any
offering of the Securities has been initiated or threatened by the
Commission. The Bank is not an “ineligible issuer” and is a
“well-known seasoned issuer,” in each case as defined in Rule 405 under the
Securities Act, in connection with the offering of the Securities.
(b) (i)
On the date it became effective under the Securities Act, the Registration
Statement conformed in all respects to the requirements of the Securities Act
and the rules and regulations adopted by the Commission under the Securities Act
(the “Rules and
Regulations”) and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(ii) on
the Commencement Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Securities Act and the Rules
and Regulations and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(iii) at
each of the times of amending or supplementing referred to in Section 5 hereof,
the Registration Statement and the Prospectus as then amended or supplemented,
will conform in all respects to the requirements of the Securities Act, the
Trust Indenture Act and the Rules and Regulations, and will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading,
2
except
that no representation is made with respect to statements in or omissions from
the Registration Statement or the Prospectus based upon written information
furnished to the Bank by any Agent specifically for use therein or as to any
Statement of Eligibility of a trustee under the Trust Indenture Act filed as an
exhibit to the Registration Statement.
(c) The
financial statements of the Bank and its consolidated subsidiaries included in
the Registration Statement and Prospectus fairly present in all material
respects the financial position of the Bank and its consolidated subsidiaries on
a consolidated basis at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Bank and its consolidated
subsidiaries for the periods specified; such financial statements have been
prepared in conformity with International Financial Reporting Standards as
issued by the International Accounting Standards Board and endorsed by the
European Union applied on a consistent basis throughout the periods involved,
except as disclosed therein.
(d) KPMG
AG Wirtschaftspruefungsgesellschaft, the accountants who certified the financial
statements of the Bank and its consolidated subsidiaries included in the
Registration Statement and Prospectus, are independent public accountants as
required by the Securities Act and the rules thereunder, including Rule 2-01 of
Regulation S-X.
(e) The
Time of Sale Information at each Time of Sale and at the Commencement Date will
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, that the Bank makes
no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Agent
furnished to the Bank in writing by such Agent expressly for use in such Time of
Sale Information.
“Time
of Sale” shall mean any time at or prior to the confirmation of any sales
of any Securities.
“Time
of Sale Information” shall mean the Prospectus most recently filed or
transmitted for filing as of such Time of Sale, each prospectus supplement to
such Prospectus that relates to the sale of Securities confirmed at such Time of
Sale that has been filed or transmitted for filing as of such Time of Sale, each
preliminary prospectus or Term Sheet (as defined below), if any, that relates to
the sale of Securities confirmed at such Time of Sale that has been filed or
transmitted for filing as of such Time of Sale and each “Free Writing Prospectus” (as
defined pursuant to Rule 405 under the Securities Act) that has been prepared by
or on behalf of the Bank relating to such Securities.
(f) With
respect to an issuance of Securities through you, the Bank (including its agents
and representatives, other than the Agents in their capacity as such and
selected dealers purchasing Securities as principal from the Agents) has not
made, used, prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any written communication (as defined
in Rule 405 under the Securities Act) that
3
constitutes
an offer to sell or solicitation of an offer to buy the Securities, other than a
Free Writing Prospectus approved in advance by you. At each Time of
Sale, each such Free Writing Prospectus included in the applicable Time of Sale
Information complied in all material respects with the Securities Act, has been
filed in accordance with the Securities Act (to the extent required thereby),
did not conflict with the information contained in the Registration Statement
and Prospectus and, when taken together with the Prospectus filed prior to such
Free Writing Prospectus, did not, and will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Bank makes
no representation and warranty with respect to any statements or omissions made
in each such Free Writing Prospectus in reliance upon and in conformity with
information relating to any Agent furnished to the Bank in writing by such Agent
expressly for use in any Free Writing Prospectus.
(g) The
Bank has been duly organized and is validly existing as a bank under the laws of
the Federal Republic of Germany and has the power and authority (corporate and
other) to own its properties and conduct its businesses as described in the
Prospectus. The Bank is registered as a foreign company in England and is an EEA
Authorised institution authorized to carry out regulated activities (as defined
in the Financial Services and Markets Act 2000) in England. The Bank is
licensed, registered or qualified to conduct the business in which it is engaged
in each jurisdiction where the conduct of its business or the location of its
properties requires such licenses, registration or qualification, except for
such jurisdictions where the failure to hold such licenses or to so register or
qualify will not materially impair the Bank’s ability to make payments hereunder
or under the Securities.
(h) This
Agreement has been duly authorized, executed and delivered by the Bank and
constitutes the legal, valid and binding obligations of the Bank to be performed
through the office through which it has been incurred, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors’ rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The
Warrant Agreement has been duly authorized, executed and delivered by the Bank
and is a valid and binding agreement of the Bank to be performed through the
office through which it has been incurred, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors’ rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(j) The
forms of Securities have been duly authorized and established in conformity with
the provisions of the Warrant Agreement and, when the Securities have been
executed and authenticated in accordance with the provisions of the Warrant
Agreement and delivered to and duly paid for by the purchasers thereof, the
Securities will be entitled to the benefits of the Warrant Agreement and will be
valid and binding
4
obligations
of the Bank to be performed through the office through which they have been
incurred, enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors’ rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or at law.
(k) The
execution and delivery by the Bank of the Warrant Agreement did not and the
execution and delivery by the Bank of this Agreement and the Securities and the
performance by the Bank of its obligations under this Agreement, the Securities
and the Warrant Agreement will not contravene any provision of applicable law or
the Bank’s constitutive documents or any agreement or other instrument binding
upon the Bank or any of its subsidiaries that is material to the Bank and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Bank or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Bank of its obligations under this Agreement, the Securities
and the Warrant Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Securities; provided, that no representation is made or warranty given as to
whether the purchase of the Securities constitutes a “prohibited transaction”
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended.
(l) There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Bank and its subsidiaries,
taken as a whole, from that set forth in the Prospectus.
(m) There
are no legal or governmental proceedings pending or threatened to which the Bank
or any of its subsidiaries is a party or to which any of the properties of the
Bank or any of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(n) The
Bank has all necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Bank and its subsidiaries, taken as a
whole.
5
(o) The
Bank is not, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Prospectus, will
not be required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
Notwithstanding
the foregoing, it is understood and agreed that the representations and
warranties set forth in Section 1(j) and 1(k) (except as to due authorization of
the forms of Securities), when made as of the Commencement Date, or as of any
date on which you solicit offers to purchase Securities, with respect to any
Securities the payments of principal or interest on which, or any other payments
with respect to which, will be determined by reference to one or more
currencies, commodities, securities of entities that may or may not be
affiliated with the Bank, baskets of such securities, indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act, as
amended, or the rules, regulations or interpretations of the Commodity Futures
Trading Commission.
2. Solicitations as
Agents.
(a) Solicitations as
Agents. In connection with your actions as selling agents, you
agree to use reasonable efforts to solicit offers to purchase Securities upon
the terms and conditions set forth in the Prospectus as then amended or
supplemented, including by the applicable product supplement and/or the Free
Writing Prospectus and/or final term sheet or pricing supplement. The
Bank may from time to time offer Securities for sale otherwise than through an
Agent.
The Bank
reserves the right, in its sole discretion, to instruct you to suspend at any
time, for any period of time or permanently, the solicitation of offers to
purchase Securities. Upon receipt of instructions from the Bank, you
will forthwith suspend solicitations of offers to purchase Securities from the
Bank until such time as the Bank has advised you that such solicitation may be
resumed. While such solicitation is suspended, the Bank shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for (i) the specific terms of the Securities, or (ii) for a change you deem to
be immaterial), you shall not be required to resume soliciting offers to
purchase Securities until the Bank has delivered such certificates, opinions and
letters as you may request.
The Bank
agrees to pay to you, as consideration for the sale of each security resulting
from a solicitation made or an offer to purchase received by you in connection
with an offering in which you were appointed as a selling agent, a commission in
a form (which may be a discount from the price to public or a separate fee) and
amount to be agreed upon and as specified in the Free Writing Prospectus or
pricing supplement relating to such Securities. Without the prior
approval of the Bank, no Agent (acting on an agency basis) may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Securities.
6
You shall
communicate to the Bank, orally or in writing, each offer to purchase Securities
received by you as agent that in your judgment should be considered by the
Bank. The Bank shall have the sole right to accept offers to purchase
Securities and may reject any offer in whole or in part. You shall
have the right to reject any offer to purchase Securities that you consider to
be unacceptable, and any such rejection shall not be deemed a breach of your
agreements contained herein. The procedural details relating to the
issue and delivery of Securities sold by you as agent and the payment therefor
shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b) [Intentionally
omitted.]
(c) Administrative
Procedures. You and the Bank agree to perform the respective
duties and obligations specifically provided to be performed in the
Administrative Procedures for Warrants (the “Administrative Procedures”)
that are attached hereto as Exhibit B, as amended from time to
time. The Administrative Procedures may be amended only by written
agreement of the Bank and you.
(d) Additional
Agents. The Bank may from time to time appoint one or more
additional financial institutions experienced in the distribution of securities
similar to the Securities (each such additional institution herein referred to
as an “Additional
Agent”) as agent(s) hereunder pursuant to an agent accession letter (an
“Agent Accession
Letter”), substantially in the form attached hereto as Exhibit C,
whereupon such Additional Agent shall, subject to the terms and conditions of
this Agreement and the Agent Accession Letter, become a party to this Agreement
as an agent, vested with all of the authority, rights and powers and subject to
all the duties and obligations of an Agent as if originally named as an Agent
hereunder. If the Bank shall appoint any Additional Agent(s) pursuant
to an Agent Accession Letter in accordance with this subsection (d), the Bank
shall provide each Agent with a copy of such executed Agent Accession
Letter.
(e) Delivery. The
documents required to be delivered by Section 4 of this Agreement as a condition
precedent to your obligation to begin soliciting offers to purchase Securities
as agent of the Bank shall be delivered at the office of Xxxxx Xxxx &
Xxxxxxxx LLP, not later than 4:00 p.m., New York time, on the date hereof, or at
such other time and/or place as you and the Bank may agree upon in writing, but
in no event later than the day prior to the date on which you begin soliciting
offers to purchase Securities pursuant to such Offering. The date of
delivery of such documents is referred to herein as the “Commencement
Date.”
3. Agreements. The
Bank agrees with you that:
(a) Before
using, authorizing, approving, referring to or filing any Free Writing
Prospectus pertaining to a Security being offered by you, the Bank will furnish
to you and your counsel a copy of the proposed Free Writing Prospectus for
review and will not use, authorize, approve, refer to or file any such Free
Writing Prospectus to which you object in your reasonable
judgment. The Bank will furnish to each Agent copies of the
Prospectus and of the Registration Statement (including the exhibits thereto
relating to the offering by the Bank thereunder of the Securities, but excluding
the documents
7
incorporated
by reference), all amendments and supplements to the Prospectus and the
Registration Statement, and each Free Writing Prospectus relating to the
Securities to be offered and sold, in each case as soon as available and in such
quantities as shall be reasonably requested. The Bank will prepare,
prior to the applicable Time of Sale, with respect to any Securities to be sold
through or to the Agents, a Free Writing Prospectus in accordance with Section
3(a) hereof in the form of a term sheet or preliminary pricing supplement with
respect to such Securities (a “Term Sheet”) and will if
required pursuant to Rule 433 file such Term Sheet with the Commission pursuant
to Rule 433 under the Securities Act not later than the time specified by such
rule. The Bank will file the final version of the Term Sheet,
containing the final terms of the relevant Securities, as a pricing supplement
pursuant to the requirements of Rule 424(b) of the Securities Act, two days
after the earlier of the date such terms became final or the date of first use
(each a “Pricing
Supplement”).
(b) The
Bank will promptly advise you (i) of the filing and effectiveness of any
amendment to the Registration Statement, (ii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by the Bank of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(c) If,
at any time when a prospectus or Time of Sale Information relating to the
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus or Time of Sale
Information, as then amended or supplemented, would include an untrue statement
of a material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances when the Prospectus or
Time of Sale Information, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in your opinion or in the opinion of the Bank,
it is necessary at any time to amend or supplement the Prospectus or Time of
Sale Information, as then amended or supplemented, to comply with applicable
law, the Bank will immediately notify you by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Securities and, if so
notified by the Bank, you shall forthwith suspend such solicitation and cease
using the Prospectus or Time of Sale Information, as then amended or
supplemented. If the Bank shall decide to amend or supplement the
Registration Statement, Prospectus or Time of Sale Information, as then amended
or supplemented, it shall so advise you promptly by telephone (with confirmation
in writing) and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement,
Prospectus or Time of Sale Information, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus or Time of Sale Information to you in such quantities as you may
reasonably request. If any documents, certificates, opinions and
letters furnished to you pursuant to paragraph (f) below and Sections 5(a), 5(b)
and 5(c) in connection with the preparation and filing of such
8
amendment
or supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Securities hereunder.
(d) The
Bank will make generally available to its security holders and to you as soon as
practicable earning statements that satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder
covering twelve month periods beginning, in each case, not later than the first
day of the Bank’s fiscal quarter next following the “effective date” (as defined
in Rule 158 under the Securities Act) of the Registration Statement with respect
to each sale of the Securities. If such fiscal quarter is the first
fiscal quarter of the Bank’s fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered thereby
and in all other cases shall be made not later than 45 days after the close of
the period covered thereby.
(e) The
Bank will endeavor, in cooperation with the Agents, to qualify the Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to maintain such qualifications for as long
as may be required for the distribution of the Securities.
(f) During
the term of this Agreement, the Bank shall furnish to you such relevant
documents and certificates of officers of the Bank relating to the business,
operations and affairs of the Bank, the Registration Statement, the Prospectus,
any amendments or supplements thereto, any Time of Sale information, the Warrant
Agreement, the Securities, this Agreement, the Administrative Procedures and the
performance by the Bank of its obligations hereunder or thereunder as you may
from time to time reasonably request.
(g) The
Bank shall notify you promptly in writing of any downgrading that occurs on or
following the Commencement Date, or of its receipt of any notice on or following
the Commencement Date of any intended or potential downgrading or of any review
for possible change that does not indicate the direction of the possible change,
in the long-term senior unsecured debt rating accorded the Bank by any
“nationally recognized statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(h) The
Bank will, whether or not any sale of Securities is consummated, pay all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation and filing of the Registration Statement, the
Prospectus and all amendments and supplements thereto, and Time of Sale
Information, (ii) the preparation, issuance and delivery of the Securities,
(iii) the fees and disbursements of the Bank’s counsel and accountants and of
the Warrant Agent and its counsel, (iv) the qualification of the Securities
under securities or Blue Sky laws in accordance with the provisions of Section
3(e), including filing fees and the fees and disbursements of your counsel in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to you in quantities
as
9
hereinabove
stated of copies of the Registration Statement and all amendments thereto, of
the Prospectus and any amendments or supplements thereto, and the Time of Sale
Information (vi) the printing and delivery to you of copies of the Warrant
Agreement, and any Blue Sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Securities, and (viii) the fees
and expenses, if any, incurred with respect to any filing with the Financial
Industry Regulatory Authority, Inc. (“FINRA”), and (ix) the fees and
disbursements of Xxxxx Xxxx & Xxxxxxxx LLP.
(i) The
Bank acknowledges and agrees that (i) the purchase and sale of Securities
pursuant to this Agreement, including the determination of the price for the
Securities and your compensation, is, as far as the Bank is concerned, an
arm’s-length commercial transaction between the Bank, on the one hand, and you,
on the other hand, (ii) in connection therewith and with the process leading to
such transaction, you are acting solely as a principal and not the agent (except
to the extent explicitly set forth herein) or fiduciary of the Bank or any of
its affiliates, (iii) you have not assumed any advisory or fiduciary
responsibility in favor of the Bank or any of its affiliates with respect to the
offering of Securities contemplated by this Agreement or the process leading
thereto (irrespective of whether you have advised or are currently advising the
Bank or any of its affiliates on other matters) or any other obligation to the
Bank or any of its affiliates with respect to any offering of Securities except
the obligations explicitly set forth in this Agreement, (iv) you and your
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Bank and its affiliates, and (v) you
have not provided any legal, accounting, regulatory or tax advice with respect
to the transactions contemplated by this Agreement, and the Bank has consulted
its own legal and financial advisors to the extent it deemed
appropriate.
4. Conditions of the
Obligations of the Agents. Your obligation to solicit offers
to purchase Securities as agent of the Bank in connection with any offering of
Securities will be subject to the accuracy of the representations and warranties
on the part of the Bank herein, to the accuracy of the statements of the Bank’s
officers made in each certificate furnished pursuant to the provisions hereof
and to the performance and observance by the Bank of all covenants and
agreements herein contained on its part to be performed and observed (at the
time of such solicitation) and to the following additional conditions precedent
when and as specified below:
(a) Prior
to such solicitation:
(i) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Bank and its subsidiaries, taken as a whole, from that set
forth in the Prospectus or Time of Sale Information, as amended or supplemented
at the time of such solicitation or at the time such offer to purchase was made,
that is not described in the Time of Sale Information and that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated by the Prospectus or Time of Sale Information, as so amended or
supplemented;
10
(ii) there
shall not have occurred any of the following: (a) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or
the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking
activities in New York or London declared by the relevant regulatory authorities
or on commercial banking activities in the Federal Republic of Germany declared
by German authorities; and (c) any outbreak or material escalation of
hostilities or other national or international calamity or crisis the effect of
which shall be such as to make it, in your judgment, impracticable or
inadvisable to proceed with the purchase of the Securities by you on the terms
and in the manner contemplated in the Prospectus or Time of Sale
Information;
(iii) the
Prospectus, each Free Writing Prospectus and all other Time of Sale Information
shall have been timely filed with the Commission under the Securities Act (in
the case of a Free Writing Prospectus and all other Time of Sale Information, to
the extent required by Rule 433 under the Securities Act); and
(iv) since
the date on which the Bank has filed with the Commission the Bank’s most recent
Annual Report on Form 20-F, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of the
possible change, in the long-term senior unsecured debt rating accorded the Bank
by any “nationally recognized statistical rating organization,” as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A)
except, in each case described in paragraph (i), (ii) or (iv) above, as
disclosed to you in writing by the Bank prior to such solicitation or (B) the
relevant event shall have occurred and been known to you prior to such
solicitation.
(b) On
the Commencement Date, you shall have received:
(i) The
opinion, dated as of such date, of the Bank’s Legal Department, or of other
counsel satisfactory to you and who may be an official of the Bank,
substantially to the effect that:
(A) the
Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the
laws of the Federal Republic of Germany and has full power and authority to
engage in banking business in the Federal Republic of Germany; the Bank is
qualified, as far as the laws of the Federal Republic of Germany are concerned,
to conduct the business in which it is engaged in each jurisdiction where it
conducts business;
(B) the
Bank has corporate power and capacity to execute and deliver the Warrant
Agreement, the Securities and this Agreement and to perform its obligations
thereunder and hereunder;
(C) the
execution and delivery of the Warrant Agreement, the Securities and this
Agreement have been duly authorized by all necessary corporate action of the
Bank;
11
(D) each
of the Warrant Agreement and this Agreement has been duly executed and delivered
on behalf of the Bank;
(E) the
forms of the Securities have been duly authorized and established by the
Bank;
(F) the
terms of a particular issuance of Securities will be, when established by an
Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a
power of attorney executed by two members of the Management Board of the Bank,
duly authorized by the Bank;
(G) when Securities of a particular
issuance have been
executed by two persons named as attorneys-in-fact of the Bank in a power
of attorney executed by two members of the Management Board of the Bank, they will have been validly executed on
behalf of the Bank, and when such executed Securities have
been authenticated by the
Warrant Agent in accordance with the provisions of
the Warrant Agreement and delivered to and duly paid for by
the purchasers thereof, they will be valid and binding obligations of the Bank to be
performed through the office through which they have been incurred;
(H) none
of the execution and delivery of the Warrant Agreement, the Securities and this
Agreement, the issuance of the Securities pursuant to the Warrant Agreement, the
offering and sale of the Securities in accordance with this Agreement and the
performance by the Bank (acting through its head office or a branch office) of
its obligations under the Warrant Agreement, the Securities or this Agreement
(x) requires the consent, approval, authorization, registration or qualification
of or with any governmental authority in the Federal Republic of Germany or (y)
conflicts with or results in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument, known to us after due inquiry, to
which the Bank is a party or by which the Bank or its properties are bound, or
the Articles of Association (Satzung) of the Bank or any
statute in the Federal Republic of Germany or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any arbitrator
known to us after due inquiry and applicable to the Bank;
(I) to
the best of such counsel’s knowledge, there are no legal or governmental
actions, suits or proceedings before or by any court of governmental agency or
body in the Federal Republic of Germany now pending or threatened against or
affecting the Bank or its property other than as set forth in the Registration
Statement and Prospectus, as amended and supplemented to date, and other than
litigation that in each case is reasonably expected not to have a material
adverse effect on the financial condition of the Bank and its consolidated
subsidiaries, taken as a whole, or the ability of the Bank to perform its
obligations under the Warrant Agreement, the Securities and this Agreement
(through its head office or a branch office);
12
(J) it
is not necessary under the law of the Federal Republic of Germany in order to
enable either the Warrant Agent or, to the extent permitted by the provisions of
the Warrant Agreement, the holder of a Security to enforce rights under the
Warrant Agreement that it should, as a result solely of its holding of the
Security, be licensed, qualified or otherwise entitled to carry on business in
the Federal Republic of Germany;
(K) the
obligations of the Bank under the Warrant Agreement, the Securities and this
Agreement constitute direct, unconditional, unsecured and unsubordinated
obligations of the Bank to be performed through the office through which they
have been incurred and rank at least pari passu with all other
outstanding unsecured and unsubordinated obligations of the Bank for borrowed
money and to general depositors, subject, however, to the priority conferred by
the operation of German law upon some liabilities, such as costs of the
insolvency proceeding and liabilities incurred as a result of the acts of the
administrator for the insolvent estate;
(L) any
judgment against the Bank enforcing the Securities, the Warrant Agreement and
this Agreement given by the State or Federal courts of the State of New York
would be recognized and enforced in the Federal Republic of Germany, provided
that the requirements of section 328 of the German Code of Civil Procedure
(Zivilprozessordnung)
are met, in particular that:
(1) the
courts have subject matter jurisdiction and there is no exclusive German
jurisdiction, and confirming that (x) as regards the enforcement of the Warrant
Agreement and the Securities, Section 6.14 of the Warrant Agreement is
sufficient to confer jurisdiction to the courts referred to therein and (y) as
regards the enforcement of this Agreement against the Bank, Section 13 of this
Agreement is sufficient to confer jurisdiction to the courts referred to
therein;
(2) the
Bank has put in a general appearance in the proceedings or actual personal
service of process has been made on the Bank in a proper way (service of process
in accordance with the provisions of the Process Agent Letter dated September
29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be
sufficient for such purposes) and timely enough to raise proper
defenses;
(3) such
judgment is not contrary to an existing judgment which is to be recognized in
the Federal Republic of Germany;
(4) such
judgment has not resulted from legal proceedings begun subsequent to other legal
proceedings regarding the same subject matter, which legal proceedings are
incompatible therewith;
(5) the
recognition of the foreign judgment is not obviously contrary to essential
principles of the law of the Federal Republic of Germany, in particular rights
granted under the constitutional law of the Federal Republic of Germany; they
have no reason to believe that any payment judgment (other than for penal
damages) enforcing the Warrant Agreement, the Securities or this Agreement,
13
which
judgment is in line with the law and the public policy of New York, would be
obviously contrary either to the essential principles of the law of the Federal
Republic of Germany or of the rights granted under the constitutional law of the
Federal Republic of Germany; and
(6) reciprocity
of recognition of judgments between the Federal Republic of Germany and the
jurisdiction rendering the judgment exists; and confirming that based upon
counsel’s understanding with respect to the recognition of foreign money
judgments by State and Federal courts in New York, it is unlikely that as
between such courts and the courts of the Federal Republic of Germany at present
reciprocity would be deemed not to exist.
(ii) The
opinion, dated as of such date, of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
special U.S. counsel to the Bank, substantially to the effect that:
(A) each
of the Warrant Agreement, assuming that it has been duly authorized, executed,
and delivered by the Bank as a matter of German law, and this Agreement is a
valid, binding and enforceable agreement of the Bank, except (x) as the
enforceability thereof (1) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally, (2) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or law and (3) is subject to judicial application of foreign laws or
foreign governmental actions affecting creditors’ rights and (y) that such
counsel expresses no opinion with respect to Section 7 hereof providing for
indemnification and contribution;
(B) assuming
the forms of the Securities have been duly authorized by the Bank as a matter of
German law, the forms of the Securities have been duly authorized and
established in conformity with the provisions of the Warrant Agreement, and when
the Securities have been executed by the Bank and authenticated by the Warrant
Agent or its duly appointed agent in accordance with the provisions of the
Warrant Agreement, and delivered to and duly paid for by the purchasers thereof,
the Securities will be entitled to the benefits of the Warrant Agreement, and
will be valid, binding and enforceable obligations of the Bank, except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally, (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or law and (iii) is subject to judicial application of foreign laws or
foreign governmental actions affecting creditors’ rights;
(C) the
issuance and sale of the Securities pursuant to this Agreement and the
performance by the Bank of its obligations in this, the Warrant Agreement and
the Securities will not (a) result in a violation of any United States federal
or New York State law or published rule or regulation that in such counsel’s
experience normally would be applicable to general business entities with
respect to such issuance, sale or performance or (b) require any consent,
approval, authorization, registration or qualification of or registration with
any governmental authority of the United States or the State of New
14
York that
in counsel’s experience normally would be applicable to general business
entities with respect to such
issuance, sale or performance, except such as have been obtained or effected under the
Securities Act and the Trust Indenture Act, except that no opinion is
expressed herein with respect to (i) the applicability of the U.S. federal
securities law or the securities or Blue Sky laws of the various states in
connection with the offer and sale of any Securities or (ii) whether the
purchase of any Securities constitutes a “prohibited transaction” under Section
406 of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the
statements set forth under the heading “Description of Warrants” in the
Prospectus and the Warrant Program Prospectus Supplement, insofar as such
statements purport to summarize certain provisions of the Securities, provide a
fair summary of such provisions; and
(E) no
registration of the Bank under the Investment Company Act of 1940, as amended,
is required for the offer and sale of the Securities by the Bank in the manner
contemplated by this Agreement and the Prospectus.
(iii)
The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx LLP
substantially to the effect that:
(A) each
of the Warrant Agreement and this Agreement, assuming that it has been duly
authorized, executed, and delivered by the Bank as a matter of German law, is a
valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms, except (x) as the enforceability thereof (1) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (2) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or law and (y) that such counsel expresses
no opinion with respect to Section 7 hereof providing for indemnification and
contribution;
(B) assuming
the forms of the Securities have been duly authorized by the Bank as a matter of
German law, the forms of the Securities have been duly authorized and
established in conformity with the provisions of the Warrant Agreement, and when
the Securities have been executed by the Bank and authenticated by the Warrant
Agent or its duly appointed agent in accordance with the provisions of the
Warrant Agreement, and delivered to and duly paid for by the purchasers thereof,
the Securities will be entitled to the benefits of the Warrant Agreement, and
will be valid and binding obligations of the Bank, enforceable in accordance
with their respective terms, except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or law;
(C) the
execution and delivery by the Bank of the Securities, the Warrant Agreement and
this Agreement and the performance by the Bank of its obligations under
15
such
agreements will not contravene any provision of applicable U.S. federal or New
York State law that in such counsel’s experience is normally applicable to
transactions of the type contemplated by such agreements, and no consent,
approval, authorization or order of or qualification with any U.S. federal or
New York State governmental body or agency that in such counsel’s experience is
normally applicable to transactions of the type contemplated by such agreements
is required for the performance by the Bank of its obligations under the
Securities, the Warrant Agreement or this Agreement, except that no opinion is
expressed herein with respect to (i) the applicability of the U.S. federal
securities laws or the securities or Blue Sky laws of the various states in
connection with the offer and sale of any Securities or (ii) whether the
purchase of any Securities constitutes a “prohibited transaction” under Section
406 of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the
statements relating to legal matters or documents included in the Prospectus, as
amended or supplemented through the date hereof, under the captions “Description
of Warrants” and “Plan of Distribution (Conflicts of Interest),” in each case
fairly summarizes in all material respects such matters or documents (subject to
the insertion in the Securities of the maturity dates, interest rates and other
similar terms thereof which are to be described in Term Sheets and supplements
to the Prospectus);
Notwithstanding
the foregoing, the opinions described in subparagraphs (B), (C) and (D) of
paragraphs 4(b)(ii) and b(iii) above, when contained in an opinion delivered on
the Commencement Date or otherwise, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission, or the
Investment Company Act of 1940, as amended, to Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Bank, baskets of
such securities, equity indices or other factors.
The
opinions of the Bank’s Legal Department and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
LLP described in paragraphs (b)(i) and (ii) above shall be rendered to you at
the request of the Bank and shall so state therein. In addition, such
opinions and the opinion described in paragraph (b)(iii) above shall expressly
provide that any agent that becomes an Agent hereunder following the
Commencement Date may rely on such opinion as though it were addressed to such
agent (it being understood that such opinion speaks only as of the date of such
opinion).
(c) On
the Commencement Date, you shall have received a certificate of the Bank, dated
the Commencement Date and signed by an executive officer of the Bank, to the
effect set forth in subparagraph (a)(iv) above, and to the effect that the
representations and warranties of the Bank contained in this Agreement are true
and correct as of such date, that the Bank has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied on or before such date and as to such other matters as you shall
reasonably request.
16
(d) [Intentionally
omitted.]
(e) On
the Commencement Date, the Bank shall have furnished to you such appropriate
further information, certificates and documents as you may reasonably
request.
5. Additional Agreements of the
Bank. (a) Each time the Registration Statement, the
Prospectus, or the Time of Sale Information is amended or supplemented (other
than by an amendment or supplement providing solely for (i) the specific terms
of the Securities or (ii) a change you deem to be immaterial), the Bank will
deliver or cause to be delivered forthwith to you, only if so requested by you,
a certificate signed by an executive officer of the Bank, dated the date of such
amendment or supplement, as the case may be, in form reasonably satisfactory to
you, of the same tenor as the certificate referred to in Section 4(c) relating
to the Registration Statement, the Prospectus or the Time of Sale Information as
amended or supplemented to the time of delivery of such
certificate.
(b) [Intentionally
omitted.]
(c) [Intentionally
omitted.]
(d) The
Bank will, pursuant to reasonable procedures developed in good faith, retain for
a period of not less than three years copies of each Free Writing Prospectus and
other Time of Sale Information that is not filed with the Commission in
accordance with Rule 433 under the Securities Act and maintain records regarding
the timing of the delivery of all applicable Time of Sale
Information.
(e) The
Bank will notify the Agents in writing promptly after learning of any event or
circumstance that has caused it to become an “ineligible issuer” or cease to be
a “well-known seasoned issuer,” each as defined in Rule 405 of the Securities
Act.
(f) The
Bank will pay any filing fees required by Rule 457 of the Securities Act in
connection with filing Time of Sale Information and each Free Writing
Prospectus, by the times required under the Securities Act.
6.
Certain Agreements of the
Agents. Each Agent hereby represents and agrees
that:
(a)
it has not and will not use, authorize use of,
refer to, or participate in the planning for the use of, any Free Writing
Prospectus, as defined in Rule 405 under the Securities Act (which term includes
use of any written information furnished to the Commission by the Bank and not
incorporated by reference into the Registration Statement and any press release
issued by the Bank) other than (i) a Free Writing Prospectus that contains no
“issuer information” (as defined in Rule 433(h)(2) under the Securities Act)
that was not included in a previously filed Free Writing Prospectus or in the
Prospectus, (ii) any Free Writing Prospectus prepared pursuant to Section 3(a)
above,
17
or (iii)
any issuer or underwriter Free Writing Prospectus approved by the Bank in
advance in writing;
(b)
it will, pursuant to reasonable procedures developed in good faith, take
steps to ensure that any Free Writing Prospectus referred to in clause (a)(i)
above will not be subject to broad unrestricted dissemination;
(c)
it will not, without the prior written consent of the Bank, use any Free
Writing Prospectus that contains the final terms of the Securities unless such
terms have previously been included in a Free Writing Prospectus filed with the
Commission or otherwise made reasonably available to the purchasers of
Securities;
(d)
it will retain copies of each Free Writing Prospectus used or referred to by it
and all other Time of Sale Information, in accordance with Rule 433 under the
Securities Act;
(e)
it is not subject to any pending proceeding under Section 8A of the Securities
Act with respect to any offering of Securities (and will promptly notify the
Bank if any such proceeding against it is initiated during such period of time
after the first date of the public offering of the Securities as in the opinion
of counsel for the Agents a prospectus relating to the Securities is required by
law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Securities by any Agent or
dealer);
(f)
it shall, provide, or cause its selected dealers to provide, purchasers of
Securities a through it a notice pursuant to Rule 173 of the Securities Act or a
copy of the final Prospectus for the Securities not later than two business days
following the completion of the sale;
(g)
other than the Prospectus relating to particular Securities and a
Free-Writing Prospectus permitted pursuant to clause (a) above, it shall not to
publish or cause to be published or use any written notice, circular,
advertisement, letter or communication relating to any offering or proposed
offering of the Securities, including, without limitation, any communications
within the meaning of Rule 134 under the Securities Act;
(h)
if any Securities are to be offered outside the United States, it shall
not offer or sell any such Securities in any jurisdiction if such offer or sale
would not be in compliance with any applicable law or regulation or if any
consent, approval or permission is needed for such offer or sale by it or for or
on behalf of the Bank unless such consent, approval or permission has been
previously obtained; and, subject to the obligations of the Bank set forth in
Section 3 of this Agreement, the Bank shall have no responsibility for, and such
Agent will obtain, any consent, approval or permission required by it for the
subscription, offer, sale or delivery of Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which it is subject or in or from which it makes any subscription, offer,
sale or delivery;
18
(i)
in acting under this Agreement and in connection with the sale of any
Securities by the Bank, it shall make reasonable efforts to assist the Bank in
obtaining performance by each purchaser whose offer to purchase Securities has
been solicited by it and accepted by the Bank, but it shall not have any
liability to the Bank in the event any such purchase is not consummated for any
reason;
(j) [Intentionally
omitted];
(k) [Intentionally
omitted]; and
(l) in
selling Securities pursuant to any offering (which agreement shall also be for
the benefit of the Bank or other seller of such Securities) it will comply with
all applicable rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Commission thereunder, the applicable rules and regulations of any banking
regulator or of any securities exchange having jurisdiction over the offering,
including Rule 15c2-8 of the Exchange Act and any other laws, rules or
regulations regarding distribution of Prospectuses, suitability or diligence to
accounts.
7. Indemnification and
Contribution. (a) The Bank agrees to indemnify and hold
harmless you and each person, if any, who controls you within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Bank shall have furnished any amendments or
supplements thereto), any applicable Free Writing Prospectus or any applicable
Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Bank in writing by you expressly for use therein.
(b) You
agree to indemnify and hold harmless the Bank, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the Bank
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Bank to
you, but only with reference to information relating to you furnished to the
Bank in writing by you expressly for use in the Registration Statement or any
amendment thereof or the Prospectus (as amended or supplemented if the Bank
shall have furnished any amendments or supplements thereto), any applicable Free
Writing Prospectus or any applicable Time of Sale
Information. Notwithstanding anything in this Agreement to the
contrary, the obligations of each Agent under this Section 7(b) are several and
not joint.
19
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such person (the “indemnified
party”) shall promptly notify the person against whom such indemnity may be
sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by you, in the
case of parties indemnified pursuant to paragraph (a) above, and by the Bank, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there were to be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim), unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) To
the extent the indemnification provided for in paragraph (a) or (b) of this
Section 7 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein in connection
with any offering of Securities, then each indemnifying party under such
paragraph, in lieu of indemnifying
20
such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Bank on the one hand and you on the other hand from the
offering of such Securities or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Bank on the one hand and you on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one
hand and you on the other hand in connection with the offering of such
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Securities (before deducting expenses)
received by the Bank bear to the total discounts and commissions received by you
in respect thereof. The relative fault of the Bank on the one hand
and of you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Bank or by you and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The
Bank and you agree that it would not be just or equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 7, you shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities referred to in
paragraph (d) above that were offered and sold to the public through you exceeds
the amount of any damages that you have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 7 and the
representations, warranties and other statements of the Bank, its officers and
you set forth in or made pursuant to this Agreement will remain operative and in
full force and effect regardless of any termination of this
Agreement, any investigation made by or on behalf of you or any
person controlling you or by or on behalf of the Bank, its officers or directors
or any person controlling the Bank and acceptance of and payment for
any of the Securities.
21
(g) The
obligations of each Agent under this Section 7 are several and not
joint.
8. Termination. This
Agreement may be terminated at any time either by the Bank or by you upon the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of any parties
hereto accrued or incurred prior to such termination. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
the last sentence of Section 3(c) and Sections 3(d), 3(h), 6, 7, 9 and 13 shall
survive; provided that if at the time of termination an offer to purchase
Securities has been accepted by the Bank but the time of delivery to the
purchaser or its agent of such Securities has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(b), 3(e), 3(f), 3(h), 4 and 5 shall also survive until
such delivery has been made.
9. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Agents, at the address beneath such Agent’s signature on the
signature page hereof; or, if sent to the Bank, will be mailed, delivered or
telefaxed and confirmed to the Bank at each of the following
addresses:
Deutsche
Bank AG New York Branch
60 Wall
Street, Mail Stop XXX00-0000
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Treasury/US Global Note Program
Telefax: 000-000-0000
Deutsche
Bank AG New York Branch
60 Wall
Street, Mail Stop XXX00-0000
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Transaction Management/US Global Note Program
Telefax:
000-000-0000
Deutsche
Bank AG New York Branch
60 Wall
Street, Mail Stop XXX00-0000
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Legal Department/US Global Note Program
Telefax: 000-000-0000
10. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and the purchasers of Securities (to the extent
expressly provided in Section 4), and no other person will have any right or
obligation hereunder.
11. Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
22
12. Applicable
Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
13. Submission to
Jurisdiction. The Bank agrees that any legal suit, action or
proceeding brought by any Agent or by any person controlling any Agent, arising
out of or based upon this Agreement may be instituted in any State or Federal
court in the Borough of Manhattan, City and State of New York, and, to the
fullest extent permitted by law, waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the jurisdiction of such court in any suit, action or
proceeding. The Bank has appointed Deutsche Bank Americas Holding
Corp., c/o Office of the Secretary, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxxxx, as its authorized agent (the “Authorized Agent”)
upon which process may be instituted in any State or Federal court in the
Borough of Manhattan, City and State of New York by any Agent and the Bank
expressly accepts the jurisdiction of any such court in respect of such
action. Such appointment shall be irrevocable unless and until a
successor authorized agent, located or with an office in the Borough of
Manhattan, City and State of New York, shall have been appointed by the Bank and
such appointment shall have been accepted by such successor authorized
agent. The Bank represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and the Bank agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Bank shall be deemed, in every
respect, effective service of process upon the Bank.
14. Judgment
Currency. The Bank, on the one hand, and the Agents severally,
on the other hand, agree, to indemnify the other against loss incurred as a
result of any judgment or order being given or made for any amount due hereunder
or under the Securities and such judgment or order being expressed and paid in a
currency (the “Judgment Currency”) other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange at which such indemnified party
would have been able to purchase United States dollars with the amount of the
Judgment Currency actually received by it if such indemnified party had utilized
such amount of Judgment Currency to purchase United States dollars
as promptly as practicable upon receipt thereof. The
foregoing indemnity shall constitute a separate and independent obligation of
the Bank and the Agents and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term
“rate of exchange” shall include an allowance for any customary or reasonable
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
15. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
23
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this Agreement and
your acceptance shall represent a binding agreement between the Bank and
you.
Very truly yours, | ||||
DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||
By
|
/s/ Xxxxxx
Xxxxxxxxx
|
|||
Name:
|
Xxxxxx
Xxxxxxxxx
|
|||
Title: | Director | |||
By
|
/s/ Xxxxxx X.
Xxxx
|
|||
Name:
|
Xxxxxx X.
Xxxx
|
|||
Title:
|
Director
|
24
The
foregoing U.S. Warrant Distribution Agreement is hereby confirmed and accepted
by the undersigned as an Agent as of the date first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||
By
|
/s/ Xxxxxxxx X. Xxxx
III
|
|||
Name:
|
Xxxxxxxx X. Xxxx
III
|
|||
Title:
|
Managing
Director
|
By
|
/s/ Xxxx X.
Xxxxxxx
|
|||
Name:
|
Xxxx X.
Xxxxxxx
|
|||
Title:
|
Managing
Director
|
Notices
hereunder shall be sent to:
Deutsche Bank Trust Company
Americas
Private Wealth Management Legal
Department
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention: Dmitri
Handera, Counsel
Telefax: (000)
000-0000
25
EXHIBIT
A
WARRANTS
[Intentionally
omitted]
26
EXHIBIT
B
WARRANTS
ADMINISTRATIVE
PROCEDURES
______________________
Explained
below are the administrative procedures and specific terms of the offering from
time to time of warrants (the “Securities”) on a continuous
basis by Deutsche Bank Aktiengesellschaft (the “Bank”) pursuant to the U.S.
Warrant Distribution Agreement, dated as of September 29, 2009 (as may be
amended from time to time, the “Warrant Distribution
Agreement”) between the Bank and the Agents listed on the signature pages
therein (collectively or individually, the “Agent”).
The
Securities will be issued as senior obligations of the Bank pursuant to the
provisions of a warrant agreement dated as of November 15, 2007 (as may be
supplemented or amended from time to time, the “Warrant Agreement”), among the
Bank and Deutsche Bank Trust Company Americas (“DBTCA”), as issuing agent,
paying agent, registrar and warrant agent.
In the
Warrant Distribution Agreement, the Agent has agreed to use reasonable efforts
to solicit purchases of the Securities and the administrative procedures
explained below will govern the issuance and settlement of any Securities sold
through the Agent, as agent of the Bank.
DBTCA
will be the Paying Agent, Issuing Agent and Registrar for the Securities and
Deutsche Bank AG, London Branch will be the Calculation Agent with respect to
Securities the terms of which require a Calculation Agent, and in each case,
will perform the duties specified herein. Each Security will be
represented by a Global Security delivered to DBTCA, as agent for The Depository
Trust Company (“DTC”)
and recorded in the book-entry system maintained by DTC (a “Book-Entry
Security”). Except as set forth in the Warrant Agreement, an
owner of a Book-Entry Security will not be entitled to receive a certificated
security.
Administrative
procedures and specific terms of the offering are explained
below. Book-Entry Securities, which may be payable in either U.S.
dollars or other specified currencies, will be issued in accordance with the
administrative procedures set forth below as they may subsequently be amended as
the result of changes in DTC’s operating procedures.
Unless
otherwise defined herein, terms defined in the Warrant Agreement and the
Securities shall be used herein as therein defined.
27
The Bank
will advise the Agent in writing of the employees of the Bank with whom the
Agent is to communicate regarding offers to purchase Securities and the related
settlement details.
28
ADMINISTRATIVE
PROCEDURES FOR BOOK-ENTRY SECURITIES
In
connection with the qualification of the Book-Entry Securities for eligibility
in the book-entry system maintained by DTC, DBTCA will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under (i) a Letter of Representations from the
Bank and DBTCA to DTC, dated as of November 22, 2006 for Program Securities and
(ii) any other Letters of Representations delivered by the Bank and DBTCA to
DTC, from time to time, in connection with any other offering of securities
issued by the Bank (the Letters of Representations referred to in clauses (i)
and (ii) are referred to collectively as the “Letter of
Representations”).
Issuance:
|
Unless
otherwise specified in any Prospectus, Time of Sale Information or Free
Writing Prospectus on any date of settlement (as defined under “Settlement” below) for
one or more Book-Entry Securities, the Bank will issue a single global
Security in fully registered form without coupons (a “Global Security”)
representing up to U.S. $500,000,000 notional amount of all such
Securities that have the same Original Issue Date, Maturity Date and other
terms. Each Global Security will be dated and issued as of the
date of its authentication or countersignature, as the case may be, by
DBTCA. Each Global Security on which interest is payable will
bear an “Interest Accrual
Date,” which will be (i) with respect to an original Global
Security (or any portion thereof), its original issuance date and (ii)
with respect to any Global Security (or any portion thereof) issued
subsequently upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly provided for on the
predecessor Global Security or Securities (or if no such payment or
provision has been made, the original issuance date of the predecessor
Global Security), regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Securities may
be payable in either U.S. dollars or other specified
currencies. No Global Security will represent any Certificated
Security.
|
|
If
the Term Sheet (as defined herein) provides for an extended offering
period beyond the Original Issue Date, then on any subsequent date of
settlement for Securities having the same Original Issue Date, Maturity
Date and other terms as the
|
29
Securities
represented by such Global Security, DBTCA will annotate the Global
Security to indicate the change in aggregate notional amount. Upon such
annotation DBTCA, by means of an instruction originated through DTC’s
Deposit/Withdrawal at Custodian (DWAC) system, will inform DTC to reflect
an increase to the aggregate notional amount of the
Securities.
|
||
Denominations:
|
Unless
otherwise specified in the applicable Term Sheet, Book-Entry Securities
will be issued in notional amounts of U.S. $1,000 or any amount in excess
thereof that is an integral multiple of U.S. $1,000 or, if such Book-Entry
Securities are issued in a currency other than U.S. dollars, notional
amounts of such currency in denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units of such currency), unless
otherwise indicated in the applicable Term Sheet or Prospectus
Supplement. Global Securities will be denominated in notional
amounts not in excess of U.S. $500,000,000. If one or more
Book-Entry Securities having an aggregate notional amount in excess of
U.S. $500,000,000 would, but for the preceding sentence, be represented by
a single Global Security then one Global Security will be issued to
represent each U.S. $500,000,000 notional amount of such Book-Entry
Security or Securities and an additional Global Security will be issued to
represent any remaining notional amount of such Book-Entry Security or
Securities. In such a case, each of the Global Securities,
representing such Book-Entry Security or Securities shall be assigned the
same CUSIP number.
|
|
Preparation
of
Term
Sheet/Prospectus Supplement:
|
If
any order to purchase a Book-Entry Security is accepted by or on behalf of
the Bank, the Bank will prepare a preliminary or final Prospectus
Supplement and Term Sheet (together, a “Prospectus Supplement”)
reflecting the terms of such Security. The Bank (i) will
arrange to file an electronic format document, in the manner prescribed by
the XXXXX Xxxxx Manual, of such Prospectus Supplement in accordance with
the applicable paragraph of Rule 424(b) under the Securities Act and (ii)
will, as soon as possible and in any event not later than the date on
which such Prospectus Supplement is filed with the
|
30
Commission,
deliver the number of copies of such Prospectus Supplement to the Agent as
the Agent shall request and (iii) will, on the Agent’s behalf, promtly
file copies of such Prospectus Supplement and other related documentation
with FINRA as required under its rules. The Agent will cause
such Prospectus Supplement to be delivered, or otherwise made available,
to the purchaser of the Security.
|
||
In
each instance that a Prospectus Supplement is prepared, the Agent will
affix the Prospectus Supplement to Prospectuses and any other Time of Sale
Information prior to their use. Outdated Free Writing
Prospectuses, Term Sheets, Prospectus Supplements and the Prospectuses to
which they are attached (other than those retained for files), will be
destroyed.
|
||
Settlement:
|
The
receipt by the Bank of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global
Security representing such Security shall constitute “settlement” with
respect to such Securities. All orders accepted by the Bank
will be settled on the third Business Day pursuant to the timetable for
settlement set forth below unless the Bank and the purchaser agree to
settlement on another day as set out in the applicable Prospectus or Time
of Sale Information, which shall be no earlier than the next Business
Day.
|
|
Settlement
Procedures:
|
Unless
otherwise specified in any Prospectus or Time of Sale Information,
settlement procedures with regard to each Book-Entry Security sold by the
Bank to or through the Agent, shall be as follows:
|
|
A.
|
The
Agent will advise the Bank by telephone, electronically or in writing of
the following settlement information:
|
|
1.
Notional amount.
2. Trade
Date.
|
||
3.
Expiration Date.
4.
Exercise Date
|
||
5.
Redemption or repayment provisions, if any.
|
||
6.
Price.
|
||
7.
Agent’s commission, if any, determined as provided in the Warrant
Distribution Agreement.
|
31
8.
Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified
Currency.
|
||
9.
Whether the Security is an Original Issue Discount Security (an “OID Security”) and if it
is an OID Security, the applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price)
|
||
10.
Whether the Security is a Renewable Security and if it is a Renewable
Security, the Initial Maturity Date, the Final Maturity Date, the Election
Dates and the Maturity Extension Dates.
|
||
11.Any
other applicable provisions.
|
||
B. |
The
Bank will advise DBTCA by electronic transmission (confirmed in writing at
any time on the same date) of the information set forth in “Settlement
Procedure” “A” above. The Bank will then assign a CUSIP number to the
Global Security representing a Security and will notify DBTCA and the
Agent of such CUSIP number(s) by telephone as soon as
practicable.
|
|
C.
|
DBTCA
will, as applicable, authenticate, complete and deliver the Global
Security.
|
|
D. |
Each
Global Security will be registered in the name of CEDE & CO., as
nominee for DTC, on the Securities Register maintained by DBTCA under the
Warrant Agreement. The beneficial owner of a Security (or one
or more indirect participants in DTC designated by such owner) will hold
their positions through one or more direct or indirect participants in DTC
(with respect to such Securities, the “Participants”). DTC
records will only reflect the direct Participants in whose accounts
Securities are held. The Participants will be responsible for
maintaining records of their beneficial owners.
|
|
E. |
On
the morning of Settlement, the Agent will wire transfer (via Fed Wire, in
accordance with procedures previously agreed upon with the Issuer) to a
designated account of the Issuer funds
available
|
32
for
immediate use in the amount equal to the price of the Warrants to be
issued. The initial issuance of a series of Warrants
will close as an underwritten deal via DTC FAST in units for each CUSIP
and there will be a DTC closing call.
|
||
F.
|
The
Agent will use the DTC Underwriting System to confirm the settlement of
the delivery of the Warrants.
|
|
Failure
to Settle:
|
If
settlement of a Warrant is rescheduled or canceled, the Agent and DBTCA
will give appropriate notifications thereof to all parties
involved.
|
33
Exhibit
C
WARRANTS
AGENT
ACCESSION LETTER
[date]
[Name of
Agent]
[Address
of Agent]
Dear
Sirs/Mesdames:
Deutsche
Bank Aktiengesellschaft, a banking corporation organized under the laws of the
Federal Republic of Germany (the “Bank”), has previously entered
into a Warrant Distribution Agreement, dated September 29, 2009 (the “Warrant Distribution Agreement”),
among the Bank and the other agents signatory thereto (the “Existing Agents”), with
respect to the issue and sale from time to time by the Bank of the Bank’s
warrants (the “Securities”). The
Securities will be issued under the Warrant Agreement, dated as
of November 15, 2007, among the Bank and Deutsche Bank Trust Company
Americas, as issuing agent, paying agent, registrar and warrant agent (the
“Warrant Agent”) (as
such agreement may be supplemented or amended from time to time, the “Warrant
Agreement”). The Warrant Distribution Agreement permits the
Bank to appoint one or more additional persons to act as agent with respect to
the Securities, on terms substantially the same as those contained in the
Warrant Distribution Agreement. A copy of the Warrant Distribution
Agreement, including the Administrative Procedures with respect to the issuance
of the Securities attached thereto as Exhibit B, is attached
hereto.
In
accordance with Section 2(d) of the Warrant Distribution Agreement we hereby
confirm that, with effect from the date hereof, you shall become a party to, and
an Agent under, the Warrant Distribution Agreement, vested with all the
authority, rights and powers, and subject to all duties and obligations of an
Agent as if originally named as such under the Warrant Distribution
Agreement.
Except as
otherwise expressly provided herein, all terms used herein which are defined in
the Warrant Distribution Agreement shall have the same meanings as in the
Warrant Distribution Agreement. Your obligation to act as Agent
hereunder shall be subject to you having received copies of the most recent
documents (including any prior documents referred to therein) previously
delivered to the Existing Agents pursuant to Sections 4 and 5 of the Warrant
Distribution Agreement and letters from the counsel
34
referred
to in Section 4(b) of the Warrant Distribution Agreement and the Bank’s
independent auditors entitling you to rely on their opinions and comfort letter,
respectively, delivered pursuant to the Warrant Distribution Agreement (to the
extent such opinions and comfort letter do not, by their terms permit you as an
Additional Agent to rely on them).
By your
signature below, you confirm that such documents are to your
satisfaction. For purposes of Section 9 of the Warrant Distribution
Agreement, you confirm that your notice details are as set forth immediately
beneath your signature.
Each of
the parties to this letter agrees to perform its respective duties and obligations
specifically provided to be performed by each of the parties in accordance with the terms and
provisions of the Warrant
Distribution Agreement and
the Procedures, as amended or supplemented hereby.
This
Agreement shall be governed by the laws of the State of New
York. This Agreement may be executed in one or more counterparts and
the executed counterparts taken together shall constitute one and the same
agreement.
If the
foregoing correctly sets forth the agreement among the parties hereto, please indicate your acceptance
hereof in the space provided for that purpose below.
Very
truly yours,
DEUTSCHE
BANK
AKTIENGESELLSCHAFT |
|
By
|
|
Name:
|
|
Title:
|
By
|
|
Name:
|
|
Title:
|
CONFIRMED
AND ACCEPTED, as of the
date
first above written
[Insert
name of Additional Agent and
information pursuant to Section 9 of the Warrant Distribution
Agreement]
35