AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of November 30, 2007 (the "Amendment") to the Deposit Agreement dated as
of
October 12, 1999 (as amended hereby, the "Deposit Agreement"), among EPCOS
AG,
incorporated under the laws of the Federal Republic of Germany (the "Company"),
JPMorgan Chase Bank, N.A., as depositary (the "Depositary"), and all Holders
from time to time of American Depositary Receipts ("ADRs") issued
thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has filed a Form 25 and a Form 15F with the U.S. Securities and
Exchange Commission (the "Commission") in order to seek to terminate the
listing
of its ADRs on the New York Stock Exchange and to terminate the registration
of
its securities under the United States Securities and Exchange Act of 1934,
as
amended (“Exchange Act”), and its obligation to file with the Commission, or
submit to the Commission, reports under Sections 13(a) and 15(d) of the Exchange
Act.
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend certain
terms
of the Deposit Agreement and ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used but not
otherwise defined herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as defined below), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. References to “Xxxxxx Guaranty Trust Company of New
York”.
All
occurrences of the words “Xxxxxx Guaranty Trust Company of New York” in the
Deposit Agreement and the form of ADR are hereby replaced by the words “JPMorgan
Chase Bank, N.A.”.
SECTION
2.03 Paragraph
(9) of the form of ADR is hereby amended to include the following immediately
after the first sentence thereof:
In
addition, holders of ADSs will be charged a fee of U.S.$0.02
per ADS per calendar year for services performed by the Depositary in
administering the ADRs (which fee may be charged on a periodic basis during
each
calendar year ((with the aggregate of such fees not to exceed the amount
set
forth above)) and shall be assessed against Holders as of the record date
or
record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders
or by
deducting such charge from one or more cash dividends or other cash
distributions).
SECTION
2.04. The
penultimate and ultimate sentences of paragraph (10) of the form
of
ADR are hereby amended to read as follows:
Upon
effectiveness of the termination of the Company’s reporting requirements under
the Exchange Act, the Company shall publish on its web site
(xxxx://xxx.xxxxx.xxx) on an ongoing basis, or otherwise furnish to the United
States Securities and Exchange Commission (the "Commission"), certain public
reports and documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Exchange Act. To the extent furnished to the Commission, such reports
and documents may be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
00000. In
the
event the Company’s reporting requirements under the Exchange Act are not
terminated, the Company will submit to the Commission certain reports that
can
be retrieved from the Commission's internet website at xxxx://xxx.xxx.xxx,
and
can be inspected and copied at the public reference facilities maintained
by the
Commission located
at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.05. Paragraphs
(a) and (b) of Section 13 of the Deposit Agreement are hereby amended to
read as
follows:
SECTION
2.06. The
form
of ADR, reflecting the amendments set forth herein and
some
clarifying amendments thereto is amended and restated to read as set forth
as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties of the Company.
The
Company
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a)
This
Amendment, as executed and delivered by the Company, and the Post-effective
Amendment to the Registration Statement on Form F-6 (Reg. No.: 333-10846),
as
executed and delivered by the Company in connection therewith, each will
be duly
and validly authorized, executed and delivered by the Company, and constitute
a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment, and any other document furnished hereunder or
thereunder in the Federal Republic of Germany, such amendment does not need
to
be filed or recorded with any court or other authority in the Federal Republic
of Germany, nor does any stamp or similar tax need to be paid in the Federal
Republic of Germany on or in respect of such amendment; and
SECTION
3.02. Representations
and Warranties of the Depositary.
The
Depositary
represents and warrants to, and agrees with, the Company that this Amendment,
when executed and delivered by the Depositary, and the Post-effective Amendment
to the Registration Statement on Form F-6 (Reg. No.: 333-10846), as executed
and
delivered by the Depositary in connection therewith, each will be duly and
validly authorized, executed and delivered by the Depositary, and constitute
a
legal, valid and binding obligation of the Depositary, enforceable against
the
Depositary in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
Subject
to Section 16 of the Form of ADR with respect to any outstanding ADRs, this
Amendment shall take effect on the date hereof.
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any
and all
liability it or they may incur as a result of the terms of this Amendment
and
the transactions contemplated herein.
SECTION
4.03. Governing
Law; Jurisdiction.
This
Amendment and all outstanding and hereinafter issued ADRs shall be governed
by
and construed in accordance with the laws of the State of New York. Any dispute,
legal suit, action or proceeding arising out of or based upon the Deposit
Agreement (as amended by the Amendment) or the transactions contemplated
thereby
shall be submitted to the exclusive jurisdiction of the Courts of New York,
New
York.
SECTION
4.04. Consent
by Continuing Holders.
Every
holder of an outstanding ADR at the Effective Date shall be deemed, by
continuing to hold such ADR, to consent and agree to this Amendment and to
be
bound by the Deposit Agreement as amended hereby.
SECTION
4.05. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary
is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
4.06. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which together shall constitute one instrument.
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above
and all
Holders shall become parties hereto by holding ADSs
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD
IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
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No.
of ADSs:
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Number
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Each
ADS represents One Share
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the
laws
of
the Federal Republic of Germany)
JPMORGAN
CHASE BANK, N.A., a
national banking association organized under the laws of the United States
of
America, as depositary hereunder (the "Depositary"),
hereby certifies that ____________ is the registered owner (a "Holder")
of
_____ American Depositary Shares ("ADSs"),
each
(subject to Paragraphs (11) and (14)) representing one ordinary share including,
subject to Paragraph (5) below, rights to receive Shares (together "Shares"
and,
together with any additional securities or cash from time to time held by
the
Depositary or the Custodian referred to below in respect or in lieu thereof,
the
"Deposited
Securities"),
of
EPCOS AKTIENGESELLSCHAFT, a corporation incorporated under the laws of the
Federal Republic of Germany (the "Company"),
deposited with a custodian appointed in accordance with the Deposit Agreement
(hereinafter defined) (subject to Section 7 of the Agreement referred to
below, the "Custodian").
This
ADR is issued pursuant to the Deposit Agreement dated as of October 12, 1999
(as
amended from time to time, the "Deposit
Agreement")
among
the Company, the Depositary and all Holders and Beneficial Owners from time
to
time of American Depositary Receipts issued thereunder ("ADRs"),
each
of whom by accepting an ADR agrees to become a party thereto and to be bound
by
all of the terms and conditions thereof and hereof. Copies of the Deposit
Agreement are on file at the Depositary's Office referred to below and at
the
office of the Custodian. This ADR (which includes the provisions set forth
on
the reverse hereof) shall be governed by and construed in accordance with
the
laws of the State of New York. The terms and conditions of the Deposit Agreement
are hereby incorporated by reference.
(1) Withdrawal
of Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), 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 , in either case accompanied by such instruments of transfer
as the
Depositary may require, the Holder hereof is entitled to delivery, as promptly
as practicable, (i) to an account designated by such Holder with Clearstream
Banking AG ("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.
(2) Register.
The
Depositary shall keep, at the office of the Depositary in The City of New
York
at which at any particular time its depositary receipt business is administered,
which at the date of the Deposit Agreement is 0 Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000 (the
"Depositary's
Office"),
(a) a
register (the "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 Register includes the Direct Registration System.
The
Depositary may close the Register at any time or from time to time when
reasonably deemed expedient by it after consultation with the Company if
practicable in the case of a closure outside of the ordinary course of business,
or when reasonably requested by the Company.
(3) Title
to ADRs; Validity.
Title
to this ADR, when properly endorsed or accompanied by proper instruments
of
transfer, is transferable by delivery with the same effect as in the case
of a
negotiable instrument under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless executed
by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary; provided, however, that, if a co-registrar for
ADRs
has been appointed, such signature may be facsimile if such ADR is countersigned
by the manual or facsimile signature of a duly authorized signatory of such
co-registrar and dated by such signatory.
2
(4) Certain
Limitations.
As a
condition precedent to the issue or registration of any ADR (including upon
a
transfer, split-up or combination), any distribution in respect thereof or
the
withdrawal of any Deposited Securities, the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge and (ii) any transfer
or
registration fees charged by third parties for the transfer of any Deposited
Securities, (b) the production of (i) proof satisfactory to it of the identity
and genuineness of any signature and (ii) such other information as it may
deem
necessary or proper consistent with the Deposit Agreement; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. From time to time, the Company, the Depositary or the
Custodian may also require such information as it may deem necessary or proper
consistent with the Deposit Agreement. The Depositary shall notify the Company
of any procedures established pursuant to clauses (b) or (c) above. The issuance
of ADRs, the acceptance of deposits of Shares, the registration of transfers
of
ADRs or the withdrawal of Deposited Securities may be suspended, generally
or in
particular instances, when the Register or CSB is closed or when any such
action
is reasonably deemed expedient by the Depositary or the Company. Registrations
of transfers of ADRs and withdrawals of Deposited Securities shall also be
suspended when requested by the Company, including for the purpose of
facilitating orderly voting of the Deposited Securities. Notwithstanding
any
other provision of the 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 U.S. Securities Act of 1933, as amended (the "Securities
Act")
and no
amendment shall impair such requirements.
(5) Pre-release.
Unless
requested in writing by the Company to cease doing so at least two business
days
in advance of the proposed deposit, the Depositary may issue ADRs pursuant
to
Pre-release transactions only if (i) such 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 the Holders (not including any
earnings thereon) until such Shares are deposited (but such collateral shall
not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient
or its
customer (a) beneficially owns such Shares, (b) transfers all beneficial
right,
title and interest therein to the Depositary for the benefit of the Holders,
(c)
will hold such Shares in trust for the account of the Depositary, (d) will
deliver such Shares to the Custodian as soon as practicable and promptly
but in
no event more than five business days after demand therefor, and (e) will
not
take any action with respect to such Shares that is inconsistent with the
Depositary’s transfer of the beneficial ownership thereof and (iii) all
Pre-released ADRs evidence not more than 20% 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. The Depositary may retain for its own account
any
compensation for the issuance of ADRs in Pre-release transactions, including,
without limitation earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. The Depositary may also set dollar limits with respect
to
Pre-releases to be entered into with any particular person to whom a Pre-release
was made on a case by case basis as it deems appropriate.
(6) Representations
and Warranties.
Every
person depositing Shares under the Deposit Agreement is deemed to represent
and
warrant that such Shares are validly issued and outstanding, fully paid,
nonassessable and were not acquired in violation of any pre-emptive rights,
that
the person making such deposit is duly authorized to do so and that such
Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act and may be offered or sold in the United States in
transactions that are exempt from registration under the Securities Act or
(B)
have been registered under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and the issuance and cancellation
of this ADR.
3
(7) 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 ADSs evidenced
by this
ADR, any Deposited Securities underlying this ADR or any distribution on
any of
the foregoing, such tax or other governmental charge shall be paid by the
Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of this ADR or any withdrawal of the underlying Deposited Securities until
such
payment is made. The Depositary may also deduct from any distribu-tions on
or in
respect of Deposited Securities, or may sell by public or private sale for
the
account of the Holder hereof all or any part of such Deposited Securities
(after
attempting by reasonable means to notify the Holder hereof prior to such
sale),
and may apply such deduction or the proceeds of any such sale in payment
of such
tax or other governmental charge. The Holder hereof shall remain liable for
any
deficiency. Upon any such sale, the Depositary shall, if appropriate, reduce
the
number of ADSs evidenced hereby to reflect any such sale and shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such tax or other governmental charge to the Holder
hereof.
(8) Disclosure
of Interests.
Each
Beneficial Owner agrees 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, 22 and 23 of the German Securities Trading
Act
(Wertpapierhandelsgesetz).
At the
date of the Deposit Agreement, the statutory notification obligations of
the
Securities Trading Act apply to anyone whose holding, either directly or
by way
of imputation pursuant to the provisions of Section 22 of the German Securities
Trading Act, of voting rights in the Company reaches or exceeds 3%, 5%, 10%,
15%, 20%, 25%, 30%, 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. All Holders and 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 Company instructions in
respect thereof, and the Depositary shall use its best efforts to comply,
to the
extent practicable, with such Company instructions.
(9) Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and
other
Distributions (as such terms are defined in Para-graph (11)), and each
person surrendering ADRs for withdrawal of Deposited Securities, up to U.S.
$5.00 for each 100 ADSs (or portion thereof) evidenced by the ADRs delivered
or
surrendered. In addition, holders of ADSs will be charged a fee of U.S.$0.02
per ADS per calendar year for services performed by the Depositary in
administering the ADRs (which fee may be charged on a periodic basis during
each
calendar year ((with the aggregate of such fees not to exceed the amount
set
forth above)) and shall be assessed against Holders as of the record date
or
record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders
or by
deducting such charge from one or more cash dividends or other cash
distributions). The Company will pay 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) any transfer or registration fees charged
by
third parties for transfer of any Deposited Securities in connection with
the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares or Holders with-drawing Deposited Securities) 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).
4
(10) Available
Information.
The
Deposit Agreement, the 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 Depositary’s Office and the office of the Custodian. The
Depositary will mail copies of such communications (or English translations
or
summaries thereof) to Holders when furnished by the Company. Upon effectiveness
of the termination of the Company’s reporting requirements under the Exchange
Act, the Company shall publish on its web site (xxxx://xxx.xxxxx.xxx) on
an
ongoing basis, or otherwise 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 Exchange
Act. To the extent furnished to the Commission, such reports and documents
may
be inspected and copied at the public reference facilities maintained by
the
Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000. In
the
event the Company’s reporting requirements under the Exchange Act are not
terminated, the Company will submit to the Commission certain reports that
can
be retrieved from the Commission's internet website at xxxx://xxx.xxx.xxx,
and
can be inspected and copied at the public reference facilities maintained
by the
Commission located
at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
Dated:
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JPMORGAN
CHASE BANK, N.A.
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By
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Authorized
Signatory
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The
Depositary's Office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
5
[FORM
OF
REVERSE OF RECEIPT]
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Deposit Agreement and to the
Paragraphs (4), (7) and (9) hereof, the Depositary shall as promptly as
practicable distribute by mail to each Holder entitled thereto on the record
date set by the Depositary therefor, in proportion to the number of Deposited
Securities (on which the following distributions are received by the Custodian)
underlying such Holder's ADRs:
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Deposit Agreement and to the
Paragraphs (4), (7) and (9) hereof, the Depositary shall as promptly as
practicable distribute by mail to each Holder entitled thereto on the record
date set by the Depositary therefor, in proportion to the number of Deposited
Securities (on which the following distributions are received by the Custodian)
underlying 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 (11) ("Cash"),
on an
averaged or other practicable basis, subject to appropriate adjustments
for (i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's expenses in (1) converting any foreign currency into
U.S.
dollars, (2) making any sale by public or private means in any commercially
reasonable manner, (3) 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, and
(4)
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. Only whole U.S. dollars and cents will be distributed
(any
fractional cents being withheld without liability for interest and added
to
future Cash distributions).
(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) To
the extent the Company so instructs and timely furnishes to the Depositary
evidence (the Company having no obligation to so furnish such evidence)
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same, warrants or other instruments representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
or
(ii) to the extent the Company does not furnish such evidence and/or so
instructs the Depositary and sales of Rights are practicable as determined
by
the Depositary after consultation with the Company (which sales shall be
effected as promptly as practicable and, to the extent practicable, on
the
principal German stock exchange on which the Rights are traded), any U.S.
dollars available to the Depositary constituting the net proceeds of sales
of
Rights, as in the case of Cash, or (iii) failing either (i) or (ii), nothing
(and any Rights may lapse).
(d) Other
Distributions.
(i)
Securities available to the Depositary resulting from any distribution
on
Deposited Securities other than Cash, Share Distributions and Rights
("Other
Distributions"),
by
any means that the Depositary may deem, after consultation with the Company,
lawful, equitable and practicable, or (ii) to the extent the Depositary
deems,
after consultation with the Company, a distribution of such securities
not to be
lawful, equitable or practicable, any U.S. dollars available to the Depositary
constituting the net proceeds of the sale of Other Distributions, as in
the case
of Cash.
6
To
the
extent that the Depositary determines, after consultation with the Company,
that
any distribution is not lawful or practicable with respect to any Holder,
the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities),
or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment thereof).
Notwithstanding
anything herein to the contrary, the Company shall have no obliga-tion
to either
(i) register any ADSs, Shares, Rights or other securities described in
this
Paragraph (11) under the Securities Act or (ii) take other actions to permit
the
distribution of such ADSs, Shares, Rights or other securities in accordance
with
applicable U.S. securities laws.
(12) Record
Dates.
The
Depositary shall, after consultation with the Company to the extent practicable,
fix a record date (which shall be as near as practicable to any corresponding
record date set by the Company with respect to the Shares) 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 Holders of record on the close of business on such date shall be so
entitled.
(13) Voting
of Deposited Securities.
As
promptly as practicable after receipt from the Company of notice of any
meeting
or solicitation of consents or proxies of holders of Deposited Securities,
the
Depositary shall, subject to applicable law and the Company's Articles
of
Association, 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 Deposited Securities underlying such Holder's ADRs and
(c)
specifying how and when such instructions may be given. Upon receipt of
instructions of a Holder on such record date in the manner and on or before
the
date established by the Depositary for such purpose, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
Company's Articles of Association and the provisions of or governing Deposited
Securities, to vote or cause to be voted the Deposited Securities underlying
such Holder's ADRs in accordance with such instructions. The Depositary
will not
itself exercise any voting discretion in respect of any Deposited
Securities.
Upon
the
request of a Holder who has not previously given instructions as to the
exercise
of voting rights pertaining to the Deposited Securities underlying such
Holder's
ADRs, and subject to compliance with any reasonable regulations the Depositary
may establish (which may include the deposit or blocking of transfers of
such
Holder's ADRs), the Depositary will endeavor to provide such Holder (or
a person
designated by such Holder) with the documentation necessary to attend a
shareholders' meeting to the extent legally possible. The Depositary will
endeavor to ensure that on any date on which it votes or causes to be voted
Shares or other Deposited Securities pursuant to this Paragraph (13), it
will
have on deposit under the Deposit Agreement the number of Shares or other
Deposited Securities with respect to which it has received voting instruc-tions
from Holders. In the event that, on any such date, the number of Shares
or other
Deposited Securities, as the case may be, on deposit under the Deposit
Agreement
is lower than the number of Shares or other Deposited Securities with respect
to
which the Depositary has received voting instructions, the Depositary shall
vote
such Shares or other Deposited Securities in accordance with such instructions
adjusting the number of securities voted on a pro-rated
basis.
7
(14) Changes
Affecting Deposited Securities.
Subject
to Paragraphs (4), (7) and (9) hereof, upon any change in nominal or par
value,
split-up or consolidation or other reclassification of Deposited Securities,
any
Share Distribution or Other Distribution not distributed to Holders in
accordance with Paragraph (11), or any recapitalization, reorganization,
merger,
liquidation or similar corporate event or sale of all or substantially
all the
assets of the Company, any cash or securities received by the Depositary
in
respect of any Deposited Securities shall constitute Deposited Securities
hereunder, and each ADS evidenced by this ADR shall automatically represent
its
pro rata
interest
in the Deposited Securities as then constituted. In any such case, the
Depositary may, and shall if the Company so requests, distribute any part
of the
cash or securities so received or execute and deliver additional ADRs or
call
for the surrender of outstanding ADRs to be exchanged for new ADRs describing
the new Deposited Securities.
(15) Exoneration.
The
Depositary, the Company, their respective officers, directors, affiliates
and
agents and each of them shall: (a) incur no liability to any Holder or
Beneficial Owner (i) if law, regulation, the provisions of or governing
any
Deposited Security, act of God, war or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act
that
the Deposit Agreement or this ADR provides shall be done or performed by
it, or
(ii) by reason of any exercise or failure to exercise any discretion given it in
the Deposit Agreement or this ADR; (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) 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; or (d) not
be
liable for any action or inaction by it in reliance upon the advice of
or
information from legal counsel, accountants, any person presenting Shares
for
deposit, any Holder, or any other person in each case believed by it in
good
faith to be competent to give such advice or information. The Depositary,
the
Company and their respective agents may rely and shall be protected in
acting
upon any written notice, request, direction or other document believed
by them
in good faith to be genuine and to have been signed or presented by the
proper
party or parties. The Depositary and its agents shall not be responsible
for any
failure to carry out any instructions to vote any of the Deposited Securities,
for the manner in which any such vote is cast or for the effect of any
such
vote. The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in ADRs. In the Deposit Agreement,
the
Company has agreed to indemnify the Depositary under certain circumstances
and
the Depositary has agreed to indemnify the Company under certain circumstances.
No disclaimer of liability under the Securities Act is intended by any
provision
hereof or of the Deposit Agreement.
(16) Amendment.
Subject
to the last sentence of Paragraph (4), the ADRs and the Deposit Agreement
may be
amended by the Company and the Depositary without consent of the Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than those
listed
in clauses (i) through (iv) of Paragraph (9)), 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,
at
the time any amendment so becomes effective, shall be deemed, by continuing
to
hold an ADR, to consent and agree to such amendment and to be bound by
the ADRs
and the Deposit Agreement as amended thereby. By holding an ADR, ADS or
an
interest therein, each Holder and Beneficial Owner hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed
by the
Company and the Depositary) 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.
8
(17)Termination.
The
Depositary 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. The Depositary may terminate the Deposit Agreement, after
giving
notice to the Holders as set forth in the preceding sentence of this Paragraph
(17) at any time 45 days or more after the Depositary shall have delivered
to
the Company its written resignation, provided that no successor depositary
shall
have been appointed and accepted its appoint-ment as provided in Section
10 of
the Deposit Agreement before the end of such 45 days. After the date so
fixed
for termination, the Depositary and its agents shall 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 together with any such distributions on Deposited Securities.
As soon
as practicable after the expiration of one year from the date so fixed
for
termination, the Depositary shall, to the extent practicable, sell the
Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold
the net
proceeds of such sales, together with any other cash then held by it under
the
Deposit Agreement, without liability for interest, for the pro
rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other
cash
and its indemnification obligations to the Company. After the date so fixed
for
termination, the Company shall be discharged from all obligations under
the
Deposit Agreement except for its indemnification and payment.
9
