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HYPO REAL ESTATE HOLDING AG
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of [DATE] , 2003
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TABLE OF CONTENTS
Page
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PARTIES...................................................................................................... 1
RECITALS..................................................................................................... 1
Section 1. Certain Definitions
(a) ADR Register..........................................................................1
(b) ADRs; Direct Registration ADRs....................................................... 1
(c) ADS...................................................................................1
(d) CSB.................................................................................. 1
(e) Custodian............................................................................ 1
(f) Deliver, execute, issue et al.........................................................1
(g) Delivery Order........................................................................1
(h) Deposited Securities................................................................. 1
(i) Direct Registration System............................................................1
(j) Holder................................................................................1
(k) Securities Act of 1933................................................................1
(l) Securities Exchange Act of 1934.......................................................1
(m) Shares................................................................................1
(n) Transfer Office...................................................................... 1
(o) Withdrawal Order..................................................................... 1
Section 2. ADRs........................................................................................2
Section 3. Deposit of Shares...........................................................................2
Section 4. Issue of ADRs...............................................................................2
Section 5. Distributions on Deposited Securities.......................................................3
Section 6. Withdrawal of Deposited Securities..........................................................3
Section 7. Substitution of ADRs........................................................................3
Section 8. Cancellation and Destruction of ADRs........................................................3
Section 9. The Custodian...............................................................................3
Section 10. Co-Registrars and Co-Transfer Agents........................................................4
Section 11. Lists of Holders. ..........................................................................4
Section 12. Depositary's Agents.........................................................................4
Section 13. Successor Depositary........................................................................4
Section 14. Reports.....................................................................................5
Section 15. Additional Shares...........................................................................5
Section 16. Indemnification.............................................................................5
Section 17. Notices.....................................................................................6
Section 18. Miscellaneous...............................................................................6
TESTIMONIUM...................................................................................................7
SIGNATURES....................................................................................................7
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EXHIBIT A
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Page
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FORM OF FACE OF ADR............................................................................................ A-1
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Introductory Paragraph................................................................................ A-1
(1) Issuance of ADRs........................................................................... A-1
(2) Withdrawal of Deposited Securities......................................................... A-2
(3) Transfers of ADRs.......................................................................... A-3
(4) Certain Limitations........................................................................ A-3
(5) Taxes...................................................................................... A-4
(6) Disclosure of Interests.................................................................... A-4
(7) Charges of Depositary...................................................................... A-5
(8) Available Information...................................................................... A-5
(9) Execution.................................................................................. A-6
Signature of Depositary............................................................................... A-6
Address of Depositary's Office ....................................................................... A-6
FORM OF REVERSE OF ADR......................................................................................... A-7
----------------------
(10) Distributions on Deposited Securities...................................................... A-7
(11) Record Dates............................................................................... A-8
(12) Voting of Deposited Securities............................................................. A-8
(13) Changes Affecting Deposited Securities..................................................... A-8
(14) Exoneration................................................................................ A-9
(15) Resignation and Removal of Depositary; the
Custodian.................................................................................. A-9
(16) Amendment................................................................................. A-10
(17) Termination............................................................................... A-10
- ii -
DEPOSIT AGREEMENT dated as of [DATE] , 2003 (the "Deposit Agreement")
among HYPO REAL ESTATE HOLDING AG and its successors (the "Company"), JPMORGAN
CHASE BANK, as depositary hereunder (the "Depositary"), and all holders from
time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited Shares
(defined below). The parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined) shall
be substantially in the form of Exhibit A annexed hereto (the "form of ADR").
The term "Direct Registration ADR" means an ADR, the ownership of which is
recorded on the Direct Registration System. References to "ADRs" shall include
certificated ADRs and Direct Registration ADRs, unless the context otherwise
requires. The form of ADR is hereby incorporated herein and made a part hereof;
the provisions of the form of ADR shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive one Share and a pro rata share in any
other Deposited Securities.
(d) "CSB" means Clearstream Banking AG, the German central securities
depositary, and any successor entity.
(e) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(f) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(g) "Delivery Order" is defined in Section 3.
(h) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(i) "Direct Registration System" means the system for the
uncertificated registration of ownership of securities ownership established by
The Depository Trust Company ("DTC") and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance of a certificate, which ownership shall
be evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto. For purposes hereof, the Direct Registration System shall
include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the Depositary.
(j) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(k) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(l) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(m) "Shares" mean the ordinary bearer shares, as amended or
redenominated from time to time, of the Company and shall include the rights to
receive Shares specified in Paragraph (1) of the form of ADR.
(n) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(o) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in certificated
form bearing the facsimile signature of anyone who was at the time of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. Shares may be deposited under this Deposit
Agreement by delivery
2
thereof to the Custodian, at the account maintained by the Custodian for such
purpose at the CSB. Shares or evidence of rights to receive Shares may be
deposited through (x) the electronic transfer of such Shares to the account
maintained by the Custodian for such purpose at the CSB, (y) evidence
satisfactory to the Custodian of irrevocable instructions to cause such Shares
to be transferred to such account or (z) delivery of certificates representing
such Shares. If use of the CSB book-entry system in connection with the ADSs is
discontinued at any time for any reason, the Company shall make such other
book-entry arrangements (if any) that it determines, after consultation with the
Depositary, are reasonable. In connection with the deposit of Shares hereunder,
the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to issue to, or upon the
written order of, the person or persons designated in such order a Direct
Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration. Shares
deposited hereunder and other Deposited Securities eligible for deposit with CSB
shall be held by the Custodian at its account at CSB. Deposited Securities may
be delivered by the Custodian to any person only under the circumstances
expressly contemplated in this Deposit Agreement. To the extent that the
provisions of or governing the Shares make delivery of certificates therefor
impracticable, Shares may be deposited hereunder by such delivery thereof as the
Depositary or the Custodian may reasonably accept, including, without
limitation, by causing them to be credited to an account maintained by the
Custodian for such purpose with the Company or an accredited intermediary, such
as a bank, acting as a registrar for the Shares, together with delivery of the
documents, payments and Delivery Order referred to herein to the Custodian or
the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability
3
for interest thereon or the investment thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. The Depositary shall endeavor to ensure that there is
at all times a Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time, after consultation with the Company if
practicable, appoint one or more agents to act for it as Custodian hereunder.
Each Custodian so appointed (other than JPMorgan Chase Bank) shall give written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound by the applicable terms hereof. Any Custodian may resign from its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary may, after consultation with the Company if practicable, discharge
any Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer
4
agents for the purpose of effecting transfers, combinations and split-ups of
ADRs at designated transfer offices in addition to the Transfer Office on behalf
of the Depositary. Each co-registrar or co-transfer agent (other than JPMorgan
Chase Bank) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement. If practicable, the Depositary shall provide the Company
with prior notice of any such appointment.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company. The Depositary may at any time be removed by the Company by written
notice of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement pursuant to paragraph (17) of the form of ADR. Any bank
or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, which the
Company is required to furnish to the United States Securities and Exchange
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934,
the Company shall transmit to the Depositary a copy thereof in English or with
an English translation or summary. The Company has delivered to the Depositary,
the Custodian and any Transfer Office, a copy of its Articles of Association and
any other provisions of or governing the Shares and any other Deposited
Securities issued by the Company or any affiliate of the Company and, promptly
upon any change thereto, the Company shall deliver to the Depositary, the
Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary and its agents may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such
5
securities or shall deposit any Shares under this Deposit Agreement, except
under circumstances complying in all respects with the Securities Act of 1933.
The Depositary will use reasonable commercial efforts to comply with written
instructions of the Company not to accept for deposit hereunder any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with securities laws in the United States.
16. Indemnification. Subject to the fourth paragraph of this Section
16, the Company shall indemnify, defend and save harmless each of the Depositary
and its agents and their respective officers, directors and employees against
any loss, liability or expense (including 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 ADRs, as the same may be
amended, modified or supplemented from time to time in accordance herewith, (i)
by either the Depositary or its agents or their respective directors, employees,
agents and affiliates, except for any loss, liability or expense directly
arising out of the negligence or bad faith of such person, or (ii) by the
Company or any of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
Subject to the next succeeding paragraph, the Depositary shall
indemnify, defend and save harmless the Company and its officers, directors and
employees, in their capacities as such acting hereunder, against any loss,
liability or expense (including reasonable fees and expenses of counsel)
incurred by the Company in respect of this Deposit Agreement to the extent such
loss, liability or expense is due to its negligence or bad faith.
Notwithstanding any provision of this Deposit Agreement or the form of
ADR to the contrary, neither the Company nor the Depositary, nor any of their
agents, shall be liable to the other, and no indemnification may be sought
hereunder (including for third party claims), for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except (i) to
the extent such Special Damages arise from the fraud, gross negligence or
willful misconduct of the party from whom indemnification is sought, or (ii) to
the extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Holders) against the Depositary or its agents,
except to the extent such Special Damages arise out of the fraud, gross
negligence or willful misconduct of the party seeking indemnification hereunder.
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
6
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx (00xx Xxxxx)
New York, New York 10004
Attention: ADR Administration
Fax: (000) 000-0000
(b) Xxxx Xxxx Xxxxxx Xxxxxxx XX
Xxxxxxxxxxxxxx 0
X-00000 Muunchen
Germany
Attention: Xxxxxxx Peterhofen, Head of Group
Corporate Office
Fax: (x00-00) 000000-000
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
7
IN WITNESS WHEREOF, HYPO REAL ESTATE HOLDING AG and JPMORGAN
CHASE BANK have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
HYPO REAL ESTATE HOLDING AG
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
-----------------------------------
Name:
Title: Vice President
8
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
-----------------
[FORM OF FACE OF ADR]
CERTAIN RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD
IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (6) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
No. of ADSs:
----
Number
---------------
Each ADS represents
One Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
HYPO REAL ESTATE HOLDING AG
(Incorporated under the laws of the Federal Republic of Germany)
JPMORGAN CHASE BANK, a New York corporation, as depositary
hereunder (the "Depositary"), hereby certifies that is the registered owner
(a "Holder") of American Depositary Shares ("ADSs"), each (subject to
paragraph (13)) representing one ordinary bearer share (including the rights
to receive Shares described in paragraph (1), "Shares" and, together with any
other securities, cash or property from time to time held by the Depositary in
respect or in lieu of deposited Shares, the "Deposited Securities"), of Hypo
Real Estate Holding AG, a corporation organized under the laws of the Federal
Republic of Germany (the "Company"), deposited under the Deposit Agreement
dated as of [DATE] , 2003 (as amended from time to time, the "Deposit
Agreement") among the Company, the Depositary and all Holders from time to
time of American Depositary Receipts issued thereunder ("ADRs"), each of whom
by accepting an ADR becomes a party thereto. The Deposit Agreement and this ADR
A-1
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) unless reasonably requested in writing by the Bank to cease doing so at
least five business days in advance of the proposed deposit, other rights to
receive Shares (until such Shares are actually deposited pursuant to (a) or (b)
above, "Pre-released ADRs") only if (i) Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
agrees in writing with the Depositary that such recipient (a) owns such Shares,
(b) assigns all beneficial right, title and interest therein to the Depositary,
(c) holds such Shares for the account of the Depositary and (d) will deliver
such Shares to the Custodian as soon as practicable and promptly upon demand
therefor and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate in its reasonable discretion. The Depositary may
retain for its own account any earnings on collateral for Pre-released ADRs and
its charges for issuance thereof. Shares or evidence of rights to receive Shares
may be deposited through (x) the electronic transfer of such Shares to the
account maintained by the Custodian for such purpose at the CSB, (y) evidence
satisfactory to the Custodian of irrevocable instructions to cause such Shares
to be transferred to such account or (z) delivery of certificates representing
such Shares. At the request, risk and expense of the person depositing Shares,
the Depositary may accept deposits for forwarding to the Custodian and may
deliver ADRs at a place other than its office. Every person depositing Shares
under the Deposit Agreement represents and warrants that such Shares are validly
issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person making such deposit is duly authorized so to do and that
such Shares (A) are not "restricted securities" as such term is defined in Rule
144 under the Securities Act of 1933 unless at the time of deposit they may be
freely transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) have been registered under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of ADRs. The Depositary will not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the Securities Act of 1933 and not so registered; the Depositary shall use
its reasonable commercial efforts to refuse to accept for such deposit any
Shares identified by the Company in order to facilitate the Company's compliance
with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender at the Depositary's Office referred to below of (i) a
certificated ADR in form satisfactory to the Depositary or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, in
either case accompanied by such instruments of transfer as the Depositary may
require (including a Withdrawal Order (as defined in the Deposit Agreement)),
the Holder hereof is entitled to delivery, as promptly as practicable, (i) to an
account designated by such
A-2
Holder with the CSB or an institution that maintains accounts with the CSB, of
the Shares and the other Deposited Securities that are eligible for deposit with
CSB and (ii) at the office of the Custodian, of any Deposited Securities that
are not eligible for deposit with CSB, in each case at the time underlying this
ADR. At the request, risk and expense of the Holder hereof, the Depositary may
deliver Deposited Securities (other than Shares) at the Depositary's Office
referred to below or at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary and the Company, notwithstanding any notice
to the contrary, may treat the person in whose name this ADR is registered on
the ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be required
by applicable law; provided that the Depositary may close the ADR Register at
any time or from time to time when deemed expedient by it or requested by the
Company. At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated ADR with a Direct Registration ADR, or vice versa,
execute and deliver a certificated ADR or a Direct Registration ADR, as the case
may be, for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as those evidenced by the certificated ADR or Direct
Registration ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any
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applicable charges as provided in paragraph (7) of this ADR; (b) the production
of proof satisfactory to it of (i) the identity and genuineness of any signature
and (ii) such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register, the CSB or any
register for Deposited Securities is closed or when any such action is deemed
advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities (including the Company's Articles of
Association or applicable law) may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, all Holders and all persons holding ADRs or
beneficial interests in ADRs or ADSs ("Beneficial Owners") agree to comply with
all such disclosure requirements and ownership limitations and to cooperate with
the Depositary in the Depositary's compliance with any reasonable instructions
from the Company in respect thereof and the
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Depositary shall use its reasonable commercial efforts to comply, to the extent
practicable, with such Company instructions. In particular, each Holder of an
ADR and all persons holding ADRs or beneficial interests in ADRs agree to comply
with all applicable provisions of German law and the Company's Articles of
Association regarding the notification of such person's interest in Shares,
which provisions at the date of the Deposit Agreement include Sections 21 and 22
of the Securities Trading Act (Wertpapierhandelsgesetz). At the date of the
Deposit Agreement, (i) the statutory notification obligations of the Securities
Trading Act apply to anyone whose holding, either directly or by way of
imputation pursuant to the provisions of Section 22 of the Securities Trading
Act, of voting rights in the Company reaches or exceeds 5%, 10%, 25%, 50% or 75%
or, after having reached or exceeded any such threshold, falls below that
threshold. Each Beneficial Owner acknowledges that failure to provide on a
timely basis any required notification of an interest in Shares may result in
withholding of certain rights, including voting and dividend rights, in respect
of the Shares in which such Beneficial Owner has an interest.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADSs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs are issued (including, without limitation, issuance pursuant to a stock
dividend or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is applicable (i) a fee of $.02 or less
per ADS (or portion thereof) for any Cash distribution made pursuant to the
Deposit Agreement, (ii) to the extent not prohibited by the rules of any stock
exchange or interdealer quotation system upon which the ADSs are traded, a fee
of $1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof ,
(iii) a fee for the distribution of securities pursuant to paragraph (10)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result of
the deposit of such securities (for purposes of this paragraph (7) treating all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, and (iv) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration of transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities;
A-5
there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), and (iv) expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the Company's
Articles of Association and any other provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by the Custodian or its nominee as a holder of Deposited Securities and
made generally available to the holders of Deposited Securities, are available
for inspection by Holders at the offices of the Depositary and the Custodian and
at the Transfer Office. The Depositary will distribute copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company furnishes the United States Securities and
Exchange Commission (the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and documents may be inspected and copied at
the public reference facilities maintained by the Commission located at the date
of the Deposit Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ......................................
Authorized Officer
The Depositary's office is located at Four Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions). Notwithstanding
anything herein to the contrary, the Company shall have no obligation to either
(i) register any ADSs, Shares, Rights or other securities described in this
paragraph (10) under the Securities Act or (ii) take other actions to
A-7
permit the distribution of such ADSs, Shares, Rights or other securities in
accordance with applicable U.S. securities laws.
(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) 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 Shares or other Deposited Securities, the Depositary
shall, subject to applicable law and the Company's Articles of Association, mail
to Holders a notice (a) containing such information as is contained in such
notice and any solicitation materials, (b) stating that each Holder on the
record date set by the Depositary therefor will be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
whole number of Deposited Securities underlying such Holder's ADRs, and (c)
specifying how and when such instructions may be given, including an express
indication that, if no specific voting instruction is received prior to the
record date set by the Depositary therefor, then the Holders shall in each case
be deemed to have instructed the Depositary to give a proxy to the Custodian,
which will act as a proxy bank in accordance with Sections 128 and 135 of the
German Stock Corporation Act (Aktiengesetz) (the "Proxy Bank"), to vote in
accordance with its recommendation with regard to voting of the Shares pursuant
to Section 128 (2) of the German Stock Corporation Act (the "Recommendation") as
to any matter concerning which the notice from the Company indicates that a vote
is to be taken by holders of Shares. Each Holder who desires to exercise or to
give instructions for the exercise of voting rights shall execute and return to
the Depositary on or before the date established by the Depositary for such
purpose, a document provided by the Depositary that instructs the Depositary as
to how the number of Shares or other Deposited Securities represented by such
Holder's ADRs are to be voted. Upon receipt of instructions of a Holder on such
record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the Company's Articles of
Association and the provisions of or governing Deposited Securities, to vote or
cause to be voted the Deposited Securities underlying such Holder's ADRs in
accordance with such instructions. The Depositary shall not vote or attempt to
exercise the right to vote that attaches to the Deposited Securities, other than
in accordance with instructions received from the Holders (or deemed to have
been so received as set forth in the next paragraph), as of such record date.
Subject to the following paragraphs of this Section 12, if no specific
voting instructions are received by the Depositary from any Holder (to whom a
notice was sent by the Depositary) with respect to the Deposited Securities,
such Holder shall be deemed, and the Depositary shall deem such Holder, to have
instructed the Depositary to give a proxy to the Proxy Bank to vote such
Deposited Securities in accordance with Section 135 of the German Stock
Corporation Act.
Notwithstanding anything to the contrary contained herein, in the event
that the Proxy Bank shall fail or decline to supply the Recommendation to the
Depositary at least thirty (30)
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calendar days prior to any meeting of holders of Shares or other Deposited
Securities with respect to which the Depositary has received notice from the
Company, the Depositary shall mail the above-referenced notice (which shall not
contain the Recommendation or the indication concerning the proxy to be given to
the Proxy Bank) to the Holders as hereinabove provided, and, thereafter, in any
case in which no specific voting instructions are received by the Depositary
from a Holder on or before the record date with respect to the Deposited
Securities, no votes shall be cast at such meeting with respect to such
Deposited Securities.
Notwithstanding anything to the contrary contained herein, the
Depositary shall not be obligated to give any such deemed instruction unless and
until the Depositary has been provided with an opinion of counsel to the
Company, which opinion shall initially be provided on the signing of the Deposit
Agreement, in form and substance satisfactory to the Depositary, to the effect
that (i) such deemed instruction does not subject the Depositary to any
reporting obligations in the Federal Republic of Germany, (ii) such deemed
instruction will not result in a violation of German law, rule, regulation or
permit, (iii) the voting arrangement and proxy as contemplated herein will be
given effect under German law, (iv) the Depositary will not be deemed to be
authorized to exercise, or in fact exercising, any discretion when voting in
accordance with the terms of this paragraph (12) under German law and (v) the
Depositary will not be subject to any liability under German law for losses
arising from the exercise of the voting arrangements set forth in this paragraph
(12). If after the date such opinion is delivered to the Depositary the Company
is advised by counsel that there has occurred a change in German law such that
the foregoing opinion could no longer be rendered favorably in whole or in part,
the Company shall promptly notify the Depositary of such change and the Holders
shall thereafter not be deemed to have given any such instruction.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the Company's
Articles of Association, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or (ii)
by reason of any
A-9
exercise or failure to exercise any discretion given it in the Deposit
Agreement, this ADR or the Company's Articles of Association; (b) assume no
liability except to perform its obligations to the extent they are specifically
set forth in this ADR and the Deposit Agreement without gross negligence or bad
faith; (c) in the case of the Depositary and its agents, be under no obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or this ADR; (d) in the case of the Company
and its agents hereunder be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required; or (e) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by it to
be competent to give such advice or information. The Depositary, its agents and
the Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own
and deal in any class of securities of the Company and its affiliates and in
ADRs. The Company has agreed to indemnify the Depositary and its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
against losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. Neither the Company, the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary. Subject to Section 9 of the
Deposit Agreement, the Depositary may appoint substitute or additional
Custodians and the term "Custodian" refers to each Custodian or all Custodians
as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary)
A-10
in order for (a) the ADSs to be registered on Form F-6 under the Securities Act
of 1933 or (b) the ADSs or Shares to be traded solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to prejudice any substantial rights
of Holders. Notwithstanding the foregoing, if any governmental body should adopt
new laws, rules or regulations which would require amendment or supplement of
the Deposit Agreement or the form of ADR to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the
ADR at any time in accordance with such changed rules. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance.
(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash and for its obligations under Section 16 of
the Deposit Agreement. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents under paragraph (7) hereof and
Section 16 of the Deposit Agreement.
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