DEPOSIT AGREEMENT
by
and
among
as
Issuer
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated
as
of
July ,
2008
DEPOSIT
AGREEMENT,
dated
as of July , 2008, by and among (i) GEA GROUP AG, a company incorporated under
the laws of the Federal Republic of Germany, and its successors (the "Company"),
(ii) DEUTSCHE BANK TRUST COMPANY AMERICAS, an indirect wholly owned subsidiary
of Deutsche Bank A.G., acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter
defined).
W
I T N E S S E T H T H A T:
WHEREAS,
the
Company desires to establish with the Depositary an ADR facility to provide
for
the deposit of the Shares and the creation of American Depositary Shares
representing the Shares so deposited; and
WHEREAS,
the
Depositary is willing to act as the Depositary for such ADR facility upon the
terms set forth in this Deposit Agreement; and
WHEREAS,
the
American Depositary Receipts evidencing the American Depositary Shares issued
pursuant to the terms of this Deposit Agreement are to be substantially in
the
form of Exhibit A annexed hereto, with appropriate insertions, modifications
and
omissions, as hereinafter provided in this Deposit Agreement; and
WHEREAS,
the
Board of Directors of the Company (or an authorized committee thereof) has
duly
approved the establishment of an ADR facility upon the terms set forth in this
Deposit Agreement, the execution and delivery of this Deposit Agreement on
behalf of the Company, and the actions of the Company and the transactions
contemplated herein.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.1 "Affiliate"
shall
have the meaning assigned to such term by the Commission under Regulation C
promulgated under the Securities Act.
SECTION
1.2 "Agent"
shall
mean such entity or entities as the Depositary may appoint under Section 7.8,
including the Custodian or any successor or addition thereto.
2
SECTION
1.3 "American
Depositary Share(s)" and "ADS(s)"
shall
mean the securities represented by the rights and interests in the Deposited
Securities granted to the Holders and Beneficial Owners pursuant to the terms
and conditions of this Deposit Agreement and evidenced by the American
Depositary Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive one Share, until there shall occur a distribution
upon Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.9 with respect to which additional American
Depositary Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the Shares or Deposited Securities specified
in
such Sections.
SECTION
1.5 "Beneficial
Owner"
shall
mean as to any ADS, any person or entity having a beneficial interest in any
ADSs. A Beneficial Owner need not be the Holder of the ADR evidencing such
ADSs.
A Beneficial Owner may exercise any rights or receive any benefits hereunder
solely through the Holder of the ADR(s) evidencing the ADSs in which such
Beneficial Owner has an interest.
SECTION
1.6 "Business
Day"
shall
mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not (a) a day on which
banking institutions in the Borough of Manhattan, The City of New York are
authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
SECTION
1.8 "Company"
shall
mean GEA Group AG, a company incorporated and existing under the laws of the
Federal Republic of Germany, and its successors.
SECTION
1.9 “Custodian”
shall
mean, as of the date hereof, Deutsche Bank AG, Frankfurt, having its principal
office at Xxxxxxxxxxx Xxxxxxx, 00-00 Xxxxxxxx 00000, as the custodian for the
purposes of this Deposit Agreement, and any other firm or corporation which
may
hereinafter be appointed by the Depositary pursuant to the terms of Section
5.5
as a successor or an additional custodian or custodians hereunder, as the
context shall require. The term “Custodian” shall mean all custodians,
collectively.
SECTION
1.10 "Deliver"
and "Delivery"
shall
mean, when used in respect of American Depositary Shares, Receipts, Deposited
Securities and Shares, the physical delivery of the certificate representing
such security, or the electronic delivery of such security by means of
book-entry transfer, as appropriate, including, without limitation, through
DRS/Profile. With respect to DRS/Profile ADRs, the terms "execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel"
refer
to applicable entries or movements to or within DRS/Profile.
SECTION
1.11 "Deposit
Agreement"
shall
mean this Deposit Agreement and all exhibits hereto, as the same may from time
to time be amended and supplemented in accordance with the terms
hereof.
3
SECTION
1.12 "Depositary"
shall
mean Deutsche Bank Trust Company Americas, an indirect wholly owned subsidiary
of Deutsche Bank A.G., in its capacity as depositary under the terms of this
Deposit Agreement, and any successor depositary hereunder.
SECTION
1.15 "DRS/Profile"
shall
mean the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may
be
given to allow for the automated transfer of ownership between the books of
DTC
and the Depositary. Ownership of ADSs held in DRS/Profile is evidenced by
periodic statements issued by the Depositary to the Holders entitled thereto.
SECTION
1.18 "Exchange
Act"
shall
mean the United States Securities Exchange Act of 1934, as from time to time
amended.
SECTION
1.22 "Holder"
shall
mean the person in whose name a Receipt is registered on the books of the
Depositary (or the Registrar, if any) maintained for such purpose. A Holder
may
or may not be a Beneficial Owner. A Holder shall be deemed to have all requisite
authority to act on behalf of those Beneficial Owners of the ADRs registered
in
such Holder's name.
4
SECTION
1.23 “Indemnified
Person”
and
“Indemnifying
Person”
shall
have the meaning set forth in Section 5.8. hereof.
SECTION
1.26. “Proxy
Bank”
shall
have the meaning set forth in Section 4.9 hereof.
SECTION
1.28 "Registrar"
shall
mean the Depositary or any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which, upon prior notice to the Company,
shall be appointed by the Depositary to register ownership of Receipts and
transfer of Receipts as herein provided, shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary.
5
SECTION
1.33. "Unlawful
Distribution"
shall
have the meaning set forth in Section 4 hereof.
SECTION
1.34 "XETRA"
shall
mean the electronic trading system of Deutsche Börse.
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
(a) Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in denominations
of
any number of American Depositary Shares. No definitive Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been (i) dated, (ii) executed
by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary and (iii) registered in the books maintained by
the
Registrar for the registration and issuances of American Depositary Shares.
The
Depositary shall maintain books on which each Receipt so executed and delivered,
in the case of definitive Receipts, and each Receipt issued through the
DRS/Profile, in either case as hereinafter provided and the transfer of each
such Receipt shall be registered. Receipts in certificated form bearing the
manual or facsimile signature of a duly authorized signatory of the Depositary
who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding that such signatory has ceased to hold such office
prior to the execution and delivery of such Receipts by the Registrar or did
not
hold such office on the date of issuance of such Receipts.
6
In
addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications
not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform
with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the
date
of issuance of the underlying Deposited Securities or by
any book-entry system in which Receipts are held.
Notwithstanding
anything in this Deposit Agreement or in any
Receipt
to the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless certificated
Receipts are specifically requested by the Holder. Holders and Beneficial Owners
shall be bound by the terms and conditions of this Deposit Agreement and of
the
form of Receipt, regardless of whether their Receipts are certificated or issued
through DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be 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, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution
of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under this
Deposit Agreement
to any holder of a Receipt, unless such holder is the Holder thereof.
The
Depositary shall make arrangements for the acceptance of the ADSs into
DTC.
7
SECTION
2.3 Deposits.
(a)
Subject to the terms and conditions of this Deposit Agreement and applicable
law, Shares or evidence of rights to receive Shares (other than Restricted
Securities) may be deposited by any person (including the Depositary in its
individual capacity but subject, however, in the case of the Company or any
Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not
the
transfer books of the Company or the Foreign Registrar, if any, are closed,
by
Delivery of the Shares to the Custodian. Every deposit of Shares shall be
accompanied by the following: (A)(i) in the case of Shares issued in registered
form, appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian, (ii) in the case of Shares issued in bearer form, such Shares
or the certificates representing such Shares and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer
to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence
of
such payments (including, without limitation, stamping or otherwise marking
such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement, (C) if the
Depositary so requires, a written order directing the Depositary to execute
and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory
to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in Germany, (E) any opinion
of counsel reasonably requested by the Depositary or the Custodian and (F)
if
the Depositary so requires, (i) an agreement, assignment or instrument
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Shares are or have been recorded to
the
Custodian of any distribution, or right to subscribe for additional Shares
or to
receive other property in respect of any such deposited Shares or, in lieu
thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in the name
of
the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to exercise voting rights in respect of the Shares
for
any and all purposes until the Shares so deposited are registered in the name
of
the Depositary, the Custodian or any nominee. No Share shall be accepted for
deposit unless accompanied by confirmation or such additional evidence, if
any
is required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by
the
person depositing such Shares under the laws and regulations of the Federal
Republic of Germany and any necessary approval has been granted by any
governmental body in the Federal Republic of Germany, if any, which is then
performing the function of the regulator of currency exchange. The Depositary
may issue Receipts against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records
in
respect of the Shares. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares. The Depositary will use commercially reasonable
efforts to comply with reasonable written instructions of the Company that
the
Depositary shall not accept for deposit hereunder any Shares specifically
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 the securities laws in the United States.
8
(c)
In
the event any Shares are deposited which entitle the holders thereof to receive
a per-share distribution or other entitlement in an amount different from the
Shares then on deposit, the Depositary is authorized to take any and all actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the issuance of such ADSs and to ensure
that such ADSs are not fungible with other ADSs issued hereunder until such
time
as the entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such deposit.
The
Company agrees to give timely notice to the Depositary if any Shares issued
or
to be issued contain rights different from those of any other Shares theretofore
issued and shall assist the Depositary with the establishment of procedures
enabling the identification of such non-fungible Shares upon Delivery to the
Custodian.
SECTION
2.4 Execution
and Delivery of Receipts.
After
the
deposit of any Shares pursuant to Section 2.3,
the Custodian shall
notify the Depositary of such deposit and the person or persons to whom or
upon
whose written order a Receipt or Receipts are deliverable in respect thereof
and
the number of American Depositary Shares to be evidenced thereby. Such
notification shall be made by letter, first class airmail postage prepaid,
or,
at the request, risk and expense of the person making the deposit, by cable,
telex, SWIFT, facsimile or electronic transmission. After receiving such notice
from the Custodian, the Depositary, subject to this Deposit Agreement
(including, without limitation, the payment of the fees, expenses, taxes and
other charges owing hereunder), shall issue the ADSs representing the Shares
so
deposited to or upon the order of the person or persons named in the notice
delivered to the Depositary and shall execute and deliver a Receipt registered
in the name or names requested by such person or persons evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled. Nothing herein shall prohibit any Pre-Release Transaction
upon the terms set forth in this Deposit Agreement.
(a) Transfer.
The
Depositary, or, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed, the Registrar, subject to the terms and conditions
of
this Deposit Agreement, shall, in accordance with its standard practices,
register transfers of Receipts on its books, upon surrender at the Principal
Office of the Depositary of a Receipt by the Holder thereof in person or by
duly
authorized attorney, properly endorsed in the case of a certificated Receipt
or
accompanied by, or in the case of DRS/Profile Receipts receipt by the Depositary
of, proper instruments of transfer (including signature guarantees in accordance
with standard industry practice) and duly stamped as may be required by the
laws of the State of New York and of the United States and any other applicable
law. Subject to the terms and conditions of this Deposit Agreement, including
payment of the applicable fees and charges of the Depositary set forth in
Section 5.9 of this Deposit Agreement and Condition 9 of Exhibit A
hereof, the Depositary shall reasonably promptly execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of American Depositary Shares
as
those evidenced by the Receipts surrendered.
9
(b) Combination
and Split Up.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
without unreasonable delay, upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or Receipts
and
upon payment to the Depositary of the applicable fees and charges set forth
in
Section 5.9 of this Deposit Agreement and Condition 9 of Exhibit A hereof,
execute and deliver a new Receipt or Receipts for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number
of
American Depositary Shares as the Receipt or Receipts surrendered.
(c) Co-Transfer
Agents.
The
Depositary may, upon prior notice to the Company, appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity, in each case to the same extent as the Depositary
and
upon prior notice to the Company. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.5 (other than the Depositary) shall give notice to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
of
this Deposit Agreement.
(d)
Substitution.
At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, as the
case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or DRS/Profile statement, as the case
may
be, substituted.
10
A
Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer
in
blank, and if the Depositary so requires, the Holder thereof shall execute
and
deliver to the Depositary a written order directing the Depositary to cause
the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the
other
terms and conditions of this Deposit Agreement, to the Company’s Articles of
Association, to the provisions of or governing the Deposited Securities and
to
applicable laws, now or hereafter in effect) to or upon the written order of
the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such American Depositary
Shares, together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as the case
may
be, to or for the account of such person.
The
Depositary may, in its discretion, refuse to accept for surrender a number
of
American Depositary Shares representing a number other than a whole number
of
Shares. In the case of surrender of a Receipt evidencing a number of American
Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares
to be
Delivered in accordance with the terms hereof, and shall, at the discretion
of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by,
the
Depositary and (b) taxes withheld) to the person surrendering the
Receipt.
At
the
request, risk and expense of any Holder so surrendering a Receipt, and for
the
account of such Holder, the Depositary shall direct the Custodian to forward
(to
the extent permitted by law) any cash or other property (other than securities)
held in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented
by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission. Upon receipt by the Depositary, the Depositary
may make delivery to such person or persons entitled thereto at the Principal
Office of the Depositary of any dividends or cash distributions with respect
to
the Deposited Securities represented by such American Depositary Shares, or
of
any proceeds of sale of any dividends, distributions or rights, which may at
the
time be held by the Depositary.
(a) Additional
Requirements.
As a
condition precedent to the execution and delivery, registration, registration
of
transfer, split-up, combination or surrender of any Receipt, the delivery of
any
distribution thereon or withdrawal of any Deposited Securities, the Depositary
or the Custodian may require (i) payment from the depositor of Shares or
presenter of the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges
of
the Depositary as provided in Section 5.9 and Condition 9 hereof, (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any
signature or any other matter contemplated by Section 3.1 hereof and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or American Depositary Shares or to the
withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions
of
this Deposit Agreement and applicable law.
11
(b) Additional
Limitations.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at
any
time or from time to time because of any requirement of law, any government
or
governmental body or commission or any securities exchange on which the Receipts
or Shares are listed, or under any provision of this Deposit Agreement or
provisions of, or governing, the Deposited Securities, or any meeting of
shareholders of the Company or for any other reason, subject, in all cases,
to
Section 7.8 hereof.
SECTION
2.8 Lost
Receipts, etc. In
case
any Receipt shall be mutilated, destroyed, lost or stolen,
unless
the Depositary has notice that such ADR has been acquired by a bona fide
purchaser,
subject
to Section 5.9 hereof, the Depositary shall execute and deliver a new Receipt
(which, in the discretion of the Depositary may be issued through DRS/Profile
unless specifically requested otherwise) in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt. Before the Depositary shall execute
and deliver a new Receipt in substitution for a destroyed, lost or stolen
Receipt, the Holder thereof shall have (a) filed with the Depositary
(i) a request for such execution and delivery before the Depositary has
notice that the Receipt has been acquired by a bona fide purchaser and
(ii) a sufficient indemnity bond in form and amount acceptable to the
Depositary and (b) satisfied any other reasonable requirements imposed by
the Depositary.
SECTION
2.9 Cancellation
and Destruction of Surrendered Receipts; Maintenance of Records.
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy Receipts so cancelled in accordance with
its
customary practices. Cancelled Receipts shall not be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any
purpose. The
Depositary shall maintain records of all Receipts surrendered and Deposited
Securities withdrawn and cancelled or destroyed Receipts under this Deposit
Agreement, in keeping with the procedures ordinarily followed by stock transfer
agents located in The City of New York or as required by applicable law, rule
or
regulation.
12
SECTION
2.10
Pre-Release.
Subject
to the further terms and provisions of this Section 2.10, the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity
as
Depositary, the Depositary may (i) issue ADSs prior to the receipt of Shares
(each such transaction a "Pre-Release Transaction") as provided below and (ii)
deliver Shares upon the receipt and cancellation of ADSs that were issued in
a
Pre-Release Transaction, but for which Shares may not yet have been received.
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction
will
be (a) subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (1) represents that
at
the time of the Pre-Release Transaction the Applicant or its customer owns
the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (2) agrees to indicate the Depositary as owner of such Shares
or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian,
(3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (4) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five Business Days’ notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of ADSs and Shares
involved in such Pre-Release Transactions at any one time to twenty percent
(20%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided,
however,
that
the Depositary reserves the right to disregard such limit from time to time
as
it deems appropriate. The Depositary may also set limits with respect to the
number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above,
but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF RECEIPTS
13
SECTION
3.2 Liability
for Taxes and Other Charges.
If any
present or future tax or other governmental charge shall become payable by
the
Depositary or the Custodian with respect to any ADR or any Deposited Securities
or American Depositary Shares, such tax or other governmental charge shall
be
payable by the Holders and Beneficial Owners to the Depositary and such Holders
and Beneficial Owners shall be deemed liable therefor. The Company, the
Custodian and/or the Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of a Holder
and/or Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
remaining fully liable for any deficiency. In addition to any other remedies
available to it, the Depositary and the Custodian may refuse the deposit of
Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 7.8)
the
withdrawal of Deposited Securities, until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and each of their
respective agents, officers, directors, employees and Affiliates for, and to
hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner. The
obligations of Holders and Beneficial Owners of Receipts under this
Section 3.2 shall survive any transfer of Receipts, any surrender of
Receipts and withdrawal of Deposited Securities, or the termination of this
Deposit Agreement.
14
SECTION
3.4 Compliance
with Information Requests.
Notwithstanding any other provision of this Deposit Agreement, the Receipts,
the
Articles of Association of the Company and applicable law, each Holder and
Beneficial Owner agrees to (a) provide such information as the Company or the
Depositary may request pursuant to law (including, without limitation, relevant
German law, any applicable law of the United States, the Articles of Association
of the Company, any resolutions of the Company’s Management Board or Supervisory
Board adopted pursuant to such Articles of Association, the requirements of
any
markets or exchanges upon which the Shares, ADSs or Receipts are listed or
traded, or to any requirements of any electronic book-entry system by which
the
Shares, ADSs or Receipts may be transferred, and (b) be bound by and subject
to
applicable provisions of the laws of Germany, the Articles of Association of
the
Company and the requirements of any markets or exchanges upon which the ADSs,
Receipts or Shares are listed or traded, or pursuant to any requirements of
any
electronic book-entry system by which the ADSs, Receipts or Shares may be
transferred, to the same extent as if such Holder and Beneficial Owner held
Shares directly, in each case irrespective of whether or not they are Holders
or
Beneficial Owners at the time such request is made, and (c) without limiting
the
generality of the foregoing, comply with all applicable provisions of German
law, the rules and requirements of XETRA and any other stock exchange on which
the Shares are, or will be registered, traded or listed and the Company’s
Articles of Association regarding any such Holder or Beneficial Owner’s interest
in Shares (including the aggregate of ADSs and Shares held by each such Holder
or Beneficial Owner), in compliance with Sections 21 and 22 of the Securities
Trading Act (Wertpapierhandelsgesetz)
or, if
applicable, Section 20 of the Stock Corporation Act (Aktiengesetz),
or any
substitute or supplemental provision of German law that may be bought into
force
from time to time. Each Holder and Beneficial Owner acknowledges that, 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 and (ii) the statutory notification obligations of the Stock
Corporation Act apply to any enterprise that, either directly or by way of
imputation pursuant to the provisions of Section 20(2) or Section 16(4) of
the
Stock Corporation Act, owns more than 25% of the shares of, or 50% of the shares
or voting rights in, the Company or, after having exceeded either of these
thresholds, no longer owns such percentage. Each Holder and Beneficial Owner
acknowledge 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. Each Holder and Beneficial Owner of ADSs further agrees
to furnish the Company with any such notification made in accordance with this
Section 3.4 and to comply with requests from the Company pursuant to the laws
of
Germany, the rules and requirements of XETRA and any other stock exchange on
which the Shares are, or will be registered, traded or listed, and the Company’s
Articles of Association, whether or not they are Holders and/or Beneficial
Owner
at the time of such request. The Depositary agrees to use its reasonable efforts
to forward upon the request of the Company, and at the Company’s expense, any
such request from the Company to the Holders and to forward to the Company
any
such responses to such requests received by the Depositary. The
Company reserves the right to instruct Holders to deliver their American
Depositary Shares for cancellation and withdrawal of the Deposited Securities
so
as to permit the Company to deal directly with the Holder thereof as a holder
of
Shares and Holders agree to comply with such instructions. The Depositary agrees
to cooperate with the Company in its efforts to inform Holders of the Company's
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk, liability or expense on the part
of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder. To the extent under applicable German
law the Company is legally permitted to remove or limit the voting rights of
any
Shares on account of the act or omission to act by a Holder, the Company may
instruct the Depositary not to permit those Holders (other than DTC, Cede &
Co. or another nominee of DTC) designated in writing by the Company to provide
voting instructions with respect to the Shares represented by such Holders
American Depositary Shares and the Depositary agrees to withhold voting
instruction rights from such Holders (other than DTC, Cede & Co. or another
nominee of DTC).
15
SECTION
3.5 Obligations
and other Rights of Holders and Beneficial Owners with Respect to Deposited
Securities.
The
Company intends that the rights and obligations of the Holders and Beneficial
Owners of ADSs representing Shares or other Deposited Securities be, in all
respects, as nearly identical as legally and practically possible to those
rights and obligations of the registered holders of Shares arising out of the
Stock Corporation Act (Aktiengesetz).
Notwithstanding any other provision of this Deposit Agreement, the Receipts,
the
Company’s Articles of Association and applicable law, each Holder and Beneficial
Owner agrees to be bound by and subject to applicable provisions of the laws
of
Germany, the Company’s Articles of Association and the requirements of any
markets or exchanges upon which the ADSs, Receipts or Shares are listed or
traded, or pursuant to any requirements of any electronic book-entry system
by
which the ADSs, Receipts or Shares may be transferred, including, but not
limited to, with respect to the obligations of such Holder or Beneficial Owner,
to the same extent as if such Holder or Beneficial Owner was a registered holder
of Shares. The Company agrees to make such rights arising out of the Stock
Corporation Act (Aktiengesetz)
available and to take such actions from time to time as may be necessary to
permit the Holders or Beneficial Owners to exercise such rights arising out
of
the Stock Corporation Act (Aktiengesetz)
as
though they were registered holders of Shares to the fullest extent possible
under applicable German law, U.S. law and the law of any other applicable
jurisdiction, regulation, requirements of any market or stock exchange upon
which the ADSs, Receipts or Shares are listed or traded and the Company’s
Articles of Association. The undertaking by the Company in this Section 3.5
is for the benefit of the Holders, the Beneficial Owners, the Company and the
registered holders of Shares. Nothing in this Section 3.5 is intended to
limit the rights and obligations of the Holders or Beneficial Owners hereunder
in their capacity as Holders or Beneficial Owners.
In
the
event that (i) any Holder or Beneficial Owner takes any action as the
holder or beneficial owner of an ADS evidenced by an ADR which action, if taken
by a registered holder of Shares, would be contrary to German law or the
Company’s Articles of Association, (ii) the Company so notifies the Holder
or Beneficial Owner and (iii) the Holder or Beneficial Owner has not ceased
such activity, the Company shall request in writing that such Holder or
Beneficial Owner, subject to satisfaction of the relevant provisions of this
Deposit Agreement, any applicable law, regulation, requirements of any market
or
stock exchange upon which the ADSs, Receipts or Shares are listed or traded
and
the Company’s Articles of Association and the rights of transfer or cancellation
of any ADR, effect a withdrawal of the Shares or other Deposited Securities
represented by ADSs evidenced by such ADRs in accordance with Article 2
(Surrender
of Receipts and Withdrawal of Deposited Securities)
of the
form of Receipt attached hereto as Exhibit A (face). If a Holder or Beneficial
Owner does not or cannot effect a withdrawal in accordance with the preceding
sentence and without prejudice to the foregoing, the Company shall have the
right to take such actions against such Holder (or the Beneficial Owner of
the
American Depositary Shares evidenced by such Holder's Receipts) as it shall
deem
necessary in order to equalize the rights and obligations of such Holder or
Beneficial Owner with the rights and obligations that such Holder or Beneficial
Owner would have under German law if it were a registered holder of Shares.
The
Depositary, if requested by the Company, shall provide a notice from the Company
to such Holder(s) as the Company so requests in connection with the Company’s
equalization efforts under this Section 3.5. Neither the Depositary nor any
of its agents shall have any obligations under this Section 3.5 other than
with
respect to forwarding the notice described in the preceding sentence.
16
ARTICLE
IV
THE
DEPOSITED SECURITIES
17
SECTION
4.2 Distribution
in Shares.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or any of their nominees. Upon receipt of confirmation
of such deposit from the Custodian, the Depositary shall establish the ADS
Record Date upon the terms described in Section 4.7 and shall, subject to
Section 5.9 hereof, either (i) distribute to the Holders as of the ADS Record
Date in proportion to the number of American Depositary Shares held as of the
ADS Record Date, additional American Depositary Shares, which represent in
the
aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of this Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional American Depositary Shares
are not so distributed, each American Depositary Share issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interests in the additional Shares distributed upon
the Deposited Securities represented thereby (net of (a) the applicable fees
and
charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu
of
delivering fractional American Depositary Shares, the Depositary shall sell
the
number of Shares represented by the aggregate of such fractions and distribute
the proceeds upon the terms described in Section 4.1. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company (including an opinion of counsel to the Company
furnished at the expense of the Company) that such distribution does not require
registration under the Securities Act or is exempt from registration under
the
provisions of the Securities Act.
To the
extent such distribution may be withheld, the Depositary may dispose of all
or a
portion of such distribution in such amounts and in such manner, including
by
public or private sale, as the Depositary deems necessary and practicable,
and
the Depositary shall distribute the net proceeds of any such sale (after
deduction of applicable (a) taxes and (b) fees and charges of, and expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1.
18
SECTION
4.3 Elective
Distributions in Cash or Shares.
Whenever the Company intends to distribute a dividend payable at the election
of
the holders of Shares in cash or in additional Shares, the Company shall give
notice thereof to the Depositary at least 30 days prior to the proposed
distribution stating whether or not it wishes such elective distribution to
be
made available to Holders of ADSs. Upon receipt of notice indicating that the
Company wishes such elective distribution to be made available to Holders of
ADSs, the Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it is lawful
and reasonably practicable to make such elective distribution available to
the
Holders of ADSs. The Depositary shall make such elective distribution available
to Holders only if (i) the Company shall have timely requested that the elective
distribution is available to Holders of ADRs, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms
of
Section 5.7 including, without limitation, any legal opinions of counsel in
any
applicable jurisdiction that the Depositary in its reasonable discretion may
request, at the expense of the Company. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute
to
the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (x) cash
upon the terms described in Section 4.1 or (y) additional ADSs representing
such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date
(on
the terms described in Section 4.7) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs.
The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. Subject to Section 5.9 hereof, if a Holder elects to receive
the proposed dividend (x) in cash, the dividend shall be distributed upon the
terms described in Section 4.1, or (y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the
elective dividend in Shares (rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity
to
receive elective distributions on the same terms and conditions as the holders
of Shares.
19
SECTION
4.4 Distribution
of Rights to Purchase Shares.
(a) Distribution
to ADS Holders.
Whenever the Company intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Company shall give
notice thereof to the Depositary at least 45 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall determine, whether
it is lawful and reasonably practicable to make such rights available to the
Holders. The Depositary shall make such rights available to Holders only if
(i)
the Company shall have timely requested that such rights be made available
to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is lawful and reasonably practicable. In the
event any of the conditions set forth above are not satisfied, the Depositary
shall proceed with the sale of the rights as contemplated in Section 4.4(b)
below or, if timing or market conditions may not permit, do nothing thereby
allowing such rights to lapse. In the event all conditions set forth above
are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.7) and establish procedures (x) to distribute such rights
(by means of warrants or otherwise) and (y) to enable the Holders to exercise
the rights (upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and other governmental charges).
Nothing herein shall obligate the Depositary to make available to the Holders
a
method to exercise such rights to subscribe for Shares (rather than
ADSs).
(b) Sale
of Rights.
If (i)
the Company does not timely request the Depositary to make the rights available
to Holders or requests that the rights not be made available to Holders, (ii)
the Depositary fails to receive satisfactory documentation within the terms
of
Section 5.7 or determines it is not lawful or reasonably practicable to make
the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity or otherwise, at such place and upon such terms
(including public or private sale) as it may deem proper. The Company shall
assist the Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
(c) Lapse
of Rights.
If the
Depositary is unable to make any rights available to Holders upon the terms
described in Section 4.4(a) or to arrange for the sale of the rights upon the
terms described in Section 4.4(b), the Depositary shall allow such rights to
lapse.
The
Depositary shall not be responsible for (i) any failure to determine that it
may
be lawful or practicable to make such rights available to Holders in general
or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or the securities
to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented
by
such rights, the Depositary will not distribute such rights to the Holders
(i)
unless and until a registration statement under the Securities Act covering
such
offering is in effect or (ii) unless the Company furnishes to the Depositary
at
the Company’s own expense opinion(s) of counsel to the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactory to the Depositary, to
the
effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions
of
the Securities Act or any other applicable laws. In the event that the Company,
the Depositary or the Custodian shall be required to withhold and does withhold
from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the Holders
shall
be reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor)
is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
20
There
can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as
the
holders of Shares or be able to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of ADSs. Upon
receipt of a notice indicating that the Company wishes such distribution be
made
to Holders of ADSs, the Depositary shall consult with the Company to determine,
and the Company shall assist the Depositary in its determination, whether such
distribution to Holders is lawful and practicable. The Depositary shall not
make
such distribution unless (i) the Company shall have timely requested the
Depositary to
make
such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable; provided,
however,
that,
if in the opinion of the Depositary or its counsel, it cannot cause such
securities or property to be distributed or such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including without limitation any requirement (i) that the Company, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or (ii) that under applicable securities or exchange
control regulations or law such securities must be registered under the
Securities Act or other law in order to be distributed to Holders), the
Depositary deems such distribution not to be feasible, the Depositary may
require opinions of U.S. and German counsel to the Company, which opinions
the
Company agrees to ensure are provided, in such form and from such counsel as
is
reasonably satisfactory to the Depositary, as to the legality of such
distribution and such other matters as the Depositary may reasonably require
to
be covered thereby.
21
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary may distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders respectively and in such
manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes
and other governmental charges withheld. The Depositary may dispose of all
or a
portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest
and
penalties) or other governmental charges applicable to the distribution.
(c) If
(i)
the Company does not request the Depositary to make such distribution to Holders
or requests not to make such distribution to Holders, (ii) the Depositary does
not receive satisfactory documentation within the terms of Section 5.7, or
(iii)
the Depositary determines that all or a portion of such distribution is not
reasonably practicable or feasible, the Depositary shall endeavor to sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall distribute the net
proceeds, if any, of such sale received by the Depositary (net of applicable
(a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to
the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances
for
nominal or no consideration and Holders and Beneficial Owners shall have no
rights thereto or arising therefrom.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
22
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary may file such application
for
approval or license, if any, as it may deem necessary, practicable and at
nominal cost and expense. Nothing herein shall obligate the Depositary to file
or cause to be filed, or to seek effectiveness of any such application or
license.
If
at any
time the Depositary shall determine that in its judgment the conversion of
any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws
and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by
the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
SECTION
4.7 Fixing
of Record Date.
Whenever necessary in connection with any distribution (whether in cash, Shares,
rights, or other distribution), or whenever for any reason the Depositary causes
a change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (the "ADS Record Date"), as close as practicable to
the
record date fixed by the Company with respect to the Shares, for the
determination of the Holders who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting,
or
to give or withhold such consent, or to receive such notice or solicitation
or
to otherwise take action, or to exercise the rights of Holders with respect
to
such changed number of Shares represented by each American Depositary Share.
Subject to applicable law and the provisions of Section 4.1 through 4.6 and
to
the other terms and conditions of this Deposit Agreement, only the Holders
of
record at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
23
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of for
purposes of establishing a quorum or otherwise, the Shares or other Deposited
Securities represented by American Depositary Shares except pursuant to and
in
accordance with such written instructions from Holders.
Notwithstanding
the above, save for applicable provisions of German law, and in accordance
with
the terms of Section 5.3, the Depositary shall not be liable for any failure
to
carry out any instructions to vote any of the Deposited Securities.
24
SECTION
4.10 Available
Information.
The
Company is exempt from the periodic reporting requirements of the Exchange
Act.
The
Company will submit to the Commission or otherwise publish on its website
(xxxxxxxx.xxx) such notices, reports and communications which are required
to be
submitted to the Commission by Rule 12g3-2(b) of the Exchange Act. To the extent
submitted to the Commission, such notices, reports and communications may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of this Agreement at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
25
SECTION
4.12 List
of Holders.
Promptly upon written request by the Company, the Depositary shall, at the
expense of the Company, (a) furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares
by all
persons in whose names Receipts are registered on the books of the Depositary
and (b) request that one or more third party service providers perform a
beneficial ownership search with respect to non-objecting Beneficial
Owners.
The
Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall remit to
the
Depositary information about such taxes or governmental charges withheld or
paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required
by
U.S. law, report to Holders: (i) any taxes withheld by it; (ii) any taxes
withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the Depositary
nor the Custodian shall be liable for the failure by any Holder or Beneficial
Owner to obtain the benefits of credits on the basis of non-U.S. tax paid
against such Holder's or Beneficial Owner's income tax liability.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary shall withhold the amount required to be withheld and may by public
or private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or charges and
the
Depositary shall distribute the net proceeds of any such sale after deduction
of
such taxes or charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
26
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The Depositary shall
not incur any liability for any tax consequences that may be incurred by Holders
and Beneficial Owners on account of their ownership of the American Depositary
Shares.
27
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Registrar.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York,
an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with
the
provisions of this Deposit Agreement.
The
Depositary or the Registrar as applicable, shall keep books for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Company and by the Holders of such Receipts, provided
that such inspection shall not be, to the Depositary’s or the Registrar's
knowledge, for the purpose of communicating with Holders of such Receipts in
the
interest of a business or object other than the business of the Company or
other
than a matter related to this Deposit Agreement or the Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in connection with the performance of its duties
hereunder.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges or automated quotation systems in the United States,
the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed
and
a substitute or substitutes appointed by the Depositary upon prior notice to
the
Company.
SECTION
5.2 Exoneration.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States or any state thereof, Germany or any
other country, or of any other governmental authority or regulatory authority
or
stock exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise
of,
or failure to exercise, any discretion provided for in this Deposit Agreement
or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian
or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to
be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of American
Depositary Shares, (v) for any action or inaction of the Proxy Bank or
(vi) for any special, consequential, indirect or punitive damages for any
breach of the terms of this Deposit Agreement or otherwise.
28
The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion or other document believed by it
to be
genuine and to have been signed or presented by the proper party or parties
or
authorized party or parties.
No
disclaimer of liability under the Securities Act is intended by any provision
of
this Deposit Agreement.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any
of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in
its
opinion may involve it in expense or liability, unless indemnity satisfactory
to
it against all expenses (including fees and disbursements of counsel) and
liabilities be furnished as often as may be required (and no Custodian shall
be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
29
The
Depositary and its agents shall not be liable for any failure to carry out
any
instructions to vote any of the Deposited Securities, or for the manner in
which
any vote is cast (provided that such act or omission is in good faith) or the
effects of any vote. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities
or
for any tax consequences that may result from the ownership of ADSs, Shares
or
Deposited Securities, for the creditworthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company, or for any action or non action
by
it in reliance upon the opinion, advice of or information from legal counsel,
accountants, any person representing Shares for deposit, any Holder or any
other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents shall not be liable for any acts
or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided that in
connection with the issue out of which such potential liability arises the
Depositary performed its obligations without gross negligence or bad faith
while
it acted as Depositary.
The
Depositary may at any time be removed by the Company by notice of such removal,
which removal shall be effective on the later of (i) the 60th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of
such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such
removal.
In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its commercially reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. The Company shall give notice to
the
Depositary of the appointment of a successor depositary not more than 90 days
after delivery by the Depositary of notice of resignation or by the Company
of
removal, each as provided in this section. In the event that a successor
depositary is not appointed or notice of the appointment of a successor
depositary is not provided by the Company in accordance with the preceding
sentence, the Depositary shall be entitled to take the actions contemplated
in
Section 6.2 hereof.
30
Every
successor depositary shall be required by the Company to execute and deliver
to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor.
The predecessor depositary, upon payment of all sums due to it and on the
written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of
the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of
any
document or any further act.
Upon
the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may
be
proper to give to such Custodian full and complete power and authority to act
on
the direction of such successor depositary.
31
SECTION
5.6 Notices
and Reports.
On or
before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action by
such
holders other than at a meeting, or of the taking of any action in respect
of
any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in English but otherwise in the form
given or to be given to holders of Shares or other Deposited Securities. The
Company shall also furnish to the Custodian and the Depositary a summary, in
English, of any applicable provisions or proposed provisions of the Company’s
Articles of Association that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The
Company will also transmit to the Depositary (a) English language versions
of
the other notices, reports and communications which are made generally available
by the Company to shareholders of its Shares or other Deposited Securities
and
(b) English language versions of the Company’s annual and other reports prepared
in accordance with the requirements of the Commission under Rule 12g3-2(b).
The
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing of copies thereof to all Holders, or by any other
means
as agreed between the Company and the Depositary (at the Company’s expense) or
make such notices, reports and other communications available for inspection
by
all Holders, provided, that, the Depositary shall have received evidence
sufficiently satisfactory to it, including in the form of an opinion of local
and/or U.S. counsel or counsel of other applicable jurisdiction, furnished
at
the expense of the Company, as the Depositary in its discretion so requests,
that the distribution of such notices, reports and any such other communications
to Holders from time to time is valid and does not or will not infringe any
local, U.S. or other applicable jurisdiction regulatory restrictions or
requirements if so distributed and made available to Holders. The Company will
timely provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order
for
the Depositary to effect such mailings. The Company has delivered to the
Depositary and the Custodian a copy of the Company’s Articles of Association
along with the provisions of or governing the Shares and any other Deposited
Securities issued by the Company or any Affiliate of the Company, in connection
with the Shares, in each case along with a certified English translation
thereof, and promptly upon any amendment thereto or change therein, the Company
shall deliver to the Depositary and the Custodian a copy of such amendment
thereto or change therein (along with a certified English translation thereof).
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The
Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
32
SECTION
5.7 Issuance
of Additional Shares, ADSs etc.
The
Company agrees that in the event it or any of its Affiliates proposes (i) an
issuance, sale or distribution of additional Shares, (ii) an offering of rights
to subscribe for Shares or other Deposited Securities, (iii) an issuance of
securities convertible into or exchangeable for Shares, (iv) an issuance of
rights to subscribe for securities convertible into or exchangeable for Shares,
(v) an elective dividend of cash or Shares, (vi) a redemption of Deposited
Securities, (vii) a meeting of holders of Deposited Securities, or solicitation
of consents or proxies, relating to any reclassification of securities, merger
or consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take
all
steps necessary to ensure that the application of the proposed transaction
to
Holders and Beneficial Owners does not violate the registration provisions
of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the foregoing
or at the reasonable request of the Depositary where it deems necessary, the
Company will furnish to the Depositary, at its own expense (a) a written opinion
of U.S. counsel (reasonably satisfactory to the Depositary) stating whether
or
not application of such transaction to Holders and Beneficial Owners (1)
requires a registration statement under the Securities Act to be in effect
or is
exempt from the registration requirements of the Securities Act and/or (2)
dealing with such other reasonable issues requested by the Depositary and
(b) a written opinion of German counsel (reasonably satisfactory to the
Depositary) stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of Germany and
(2) all requisite regulatory consents and approvals have been obtained in
Germany. If the filing of a registration statement is required, the Depositary
shall not have any obligation to proceed with the transaction unless it shall
have received evidence reasonably satisfactory to it that such registration
statement has been declared effective and that such distribution is in
accordance with all applicable laws or regulations. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The
Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by
any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
33
SECTION
5.8 Indemnification.
The
Company agrees to indemnify the Depositary, any Custodian and each of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct losses, liabilities, taxes, costs,
claims, judgments, proceedings, actions, demands and any charges or expenses
of
any kind whatsoever (including, but not limited to, reasonable attorney’s fees
and expenses and, in each case, fees and expenses of counsel, in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed
in
respect thereof) (collectively referred to as “Losses”) which the Depositary or
any agent thereof may incur or which may be made against it as a result of
or in
connection with its appointment or the exercise of its powers and duties under
this Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American
Depositary Shares, the Shares, or other Deposited Securities, as the case may
be, (b) out of or in connection with any offering documents in respect thereof
or (c) out of or in connection with acts performed or omitted, including, but
not limited to, any delivery by the Depositary on behalf of the Company of
information regarding the Company in connection with this Deposit Agreement,
the
Receipts, the American Depositary Shares, the Shares, or any Deposited
Securities, in any such case (i) by the Depositary, the Custodian or any of
their respective directors, officers, employees, agents and Affiliates, except
to the extent any such Losses directly arises out of the gross negligence or
bad
faith of any of them, or (ii) by the Company or any of its directors, officers,
employees, agents and Affiliates. Notwithstanding the above, in no event shall
the Company, the Depositary or any of their respective directors, officers,
employees, agents and/or Affiliates be liable for any indirect, special,
punitive or consequential damages to the Depositary, the Company, Holders,
Beneficial Owners or any other person.
Any
person seeking indemnification hereunder (an "Indemnified Person") shall notify
the person from whom it is seeking indemnification (the "Indemnifying Person")
of the commencement of any indemnifiable action or claim promptly after such
Indemnified Person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such Indemnified Person's rights
to
indemnification except to the extent the Indemnifying Person is materially
prejudiced by such failure) and shall consult in good faith with the
Indemnifying Person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle any
action or claim that may give rise to an indemnity hereunder without the consent
of the Indemnifying Person, which consent shall not be unreasonably
withheld.
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
34
The
Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
to by both parties in the performance of its obligations hereunder and in
respect of the actual costs and expenses of the Depositary in respect of any
notices required to be given to the Holders in accordance with Condition
20.
In
connection with any payment by the Company to the Depositary:
|
(i)
|
all
fees, taxes, duties, charges, costs and expenses which are payable
by the
Company shall be paid or be procured to be paid by the Company (and
any
such amounts which are paid by the Depositary shall be reimbursed
to the
Depositary by the Company upon demand therefor);
and
|
|
(ii)
|
such
payment shall be subject to all necessary exchange control and other
consents and approvals in Germany having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary
approvals that are required to be obtained by it in this connection;
|
The
Company agrees to promptly pay to the Depositary such other expenses, fees
and
charges and to reimburse the Depositary for such out-of-pocket expenses as
the
Depositary and the Company may agree to from time to time. Responsibility for
payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed,
in
the discretion of the Depositary, the Depositary shall present its statement
for
such expenses and fees or charges to the Company upon receipt or payment of
any
relevant invoice by the Depositary, once every three months, semiannually or
annually.
All
payments by the Company to the Depositary under this Section 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction
or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
The
right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described
in
Section 5.4 hereof, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or
removal.
35
AMENDMENT
AND TERMINATION
SECTION
6.1 Amendment/Supplement.
Subject
to the terms and conditions of this Section 6.1 and applicable law, the Receipts
outstanding at any time, the provisions of this Deposit Agreement and the form
of Receipt attached hereto and to be issued under the terms hereof may at any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or not materially prejudicial to the Holders without the consent
of
the Holders or Beneficial Owners. Any amendment or supplement which shall impose
or increase any fees or charges (other than charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties 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 American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Shares or the 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
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby.
In
no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. 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 with such laws, rules or
regulations.
36
SECTION
6.2 Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the
terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time
to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice
of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either
case
a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4, the Depositary may terminate this
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of this Deposit Agreement,
the
Holder will, upon surrender of such Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Section 2.6 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of
the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section
2.6,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as
the
case may be, in each case, the charges of the Depositary for the surrender
of a
Receipt, any expenses for the account of the Holder in accordance with the
terms
and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). At any time following six months after
the
date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested
the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except
to
account for such net proceeds and other cash (after deducting, or charging,
as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with
the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary
hereunder.
37
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of such counterparts together shall
constitute one and the same agreement. Copies of this Deposit Agreement shall
be
maintained with the Depositary and shall be open to inspection by any Holder
during business hours.
38
Any
and
all notices to be given to the Depositary shall be in writing and deemed to
have
been duly given if personally delivered or sent by mail, air courier or cable,
telex, facsimile transmission or by electronic transmission (including, without
limitation, via email or SWIFT) (if agreed by the Company and the Depositary),
at the Company’s expense, unless otherwise agreed in writing between the Company
and the Depositary, confirmed by letter, addressed to Deutsche Bank Trust
Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX Attention:
ADR
Department, telephone: (x0) 000 000-0000, facsimile:
(x0) 000 000 0000 or to any other address which the Depositary
may specify in writing to the Company.
Any
and
all notices to be given to any Holder shall be in writing and deemed to have
been duly given if personally delivered or sent by mail or cable, telex,
facsimile transmission or by electronic transmission (including, without
limitation, via email or SWIFT) (if agreed to by the Company and the
Depositary), at the Company’s expense, unless otherwise agreed to in writing
between the Company and the Depositary, addressed to such Holder at the address
of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed
to
be notice to Beneficial Owners for all purposes of this Deposit
Agreement.
Delivery
of a notice sent by mail, air courier or cable, telex, facsimile or electronic
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex, facsimile or electronic transmission) is deposited, postage prepaid,
in a
post-office letter box or delivered to an air courier service. The Depositary
or
the Company may, however, act upon any cable, telex, facsimile or electronic
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex, facsimile or electronic transmission shall not
subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION
7.6 Governing
Law and Jurisdiction.
This
Deposit Agreement and the Receipts shall be interpreted in accordance with,
and
all rights hereunder and thereunder and provisions hereof and thereof shall
be
governed by, the laws of the State of New York without reference to the
principles of choice of law thereof. Except as set forth in the following
paragraph of this Section 7.6, the Company and the Depositary agree that the
federal or state courts in the City of New York shall have jurisdiction to
hear
and determine any suit, action or proceeding and to settle any dispute between
them that may arise out of or in connection with this Deposit Agreement and,
for
such purposes, each irrevocably submits to the non-exclusive jurisdiction of
such courts. The Company hereby irrevocably designates, appoints and empowers
Corporation
Service Company now at 0000 Xxxxxx xx xxx Xxxxxxxx - Xxxxx 0000, Xxx Xxxx,
XX
00000 (the "Agent"),
as its
authorized agent to receive and accept for and on its behalf, and on behalf
of
its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such,
the
Company agrees to designate a new agent in the City of New York on the terms
and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of
any
and all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air
mail,
postage prepaid, to its address provided in Section 7.5 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to
it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
39
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in
the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary,
in
any state or federal court of the United States, and the Depositary or the
Company have any claim, for indemnification or otherwise, against each other
arising out of the subject matter of such suit, action or proceeding, then
the
Company and the Depositary may pursue such claim against each other in the
state
or federal court in the United States in which such suit, action, or proceeding
is pending, and for such purposes, the Company and the Depositary irrevocably
submit to the non-exclusive jurisdiction of such courts. The Company agrees
that
service of process upon the Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or proceeding
brought against it as described in this paragraph.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The
provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.9 Titles.
All
references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of this Deposit Agreement unless expressly
provided otherwise. The words "this Deposit Agreement", "herein", "hereof",
"hereby", "hereunder", and words of similar import refer to the Deposit
Agreement as a whole as in effect between the Company, the Depositary and the
Holders and Beneficial Owners of ADSs and not to any particular subdivision
unless expressly so limited. Pronouns in masculine, feminine and neuter gender
shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the context
otherwise requires. Titles to sections of this Deposit Agreement are included
for convenience only and shall be disregarded in construing the language
contained in this Deposit Agreement.
40
SECTION
7.10 Agents.
The
Depositary shall be entitled, in its sole but reasonable discretion, to appoint
one or more agents (the “Agents”)
of
which it shall have control for the purpose, inter
alia,
of
making distributions to the Holders or otherwise carrying out its obligations
under this Agreement.
SECTION
7.11 Exclusivity.
The
Company agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as Depositary
hereunder.
[remainder
of page intentionally left blank; signature page to follow]
41
IN
WITNESS WHEREOF, GEA GROUP AG and DEUTSCHE BANK TRUST COMPANY AMERICAS have
duly
executed this Deposit Agreement as of the day and year first above set forth
and
all Holders and Beneficial Owners shall become parties hereto upon acceptance
by
them of American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof.
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By:_______________________________
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Name:
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Title:
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By:_______________________________
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS
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By:_______________________________
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Name:
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Title:
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By:_______________________________
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Name:
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Title:
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42
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Number
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CUSIP 361592
108
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American
Depositary Shares (Each American Depositary Share representing one
Fully
Paid Ordinary Share)
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EXHIBIT
A
[FORM
OF FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
(Incorporated
under the laws of Germany)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary (herein called the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADS"), representing deposited common shares,
each of no par value, including evidence of rights to receive such ordinary
shares (the "Shares") of GEA Group AG (the “Company”), a company incorporated
under the laws of Germany (the "Company"). As of the date of the Deposit
Agreement (hereinafter referred to), each ADS represents one Share deposited
under the Deposit Agreement with the Custodian which at the date of execution
of
the Deposit Agreement is Deutsche Bank AG, Frankfurt (the "Custodian"). The
ratio of Depositary Shares to shares of stock is subject to subsequent amendment
as provided in Article IV of the Deposit Agreement. The Depositary’s Principal
Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
(1) The
Deposit Agreement.
This
American Depositary Receipt is one of an issue of American Depositary Receipts
("Receipts"), all issued and to be issued upon the terms and conditions set
forth in the Deposit Agreement, dated as of July , 2008 (as amended from time
to
time, the "Deposit Agreement"), by and among the Company, the Depositary, and
all Holders and Beneficial Owners from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and becomes bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners of
Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time, received in respect of such Shares and held thereunder (such
Shares, other securities, property and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Principal
Office of the Depositary and the Custodian.
(i)
Each
owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound
by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement
and
the applicable ADR(s), to adopt any and all procedures necessary to comply
with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Association
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements
for
the acceptance of the American Depositary Shares into DTC. Each Beneficial
Owner
of American Depositary Shares held through DTC must rely on the procedures
of
DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name
of a
nominee of DTC. So long as the American Depositary Shares are held through
DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained
by
(i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
(2) Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by
this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making
of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof
and
in Section 5.9 and Condition 9 hereof) and (ii) all fees, taxes and governmental
charges payable in connection with such surrender and withdrawal, and, subject
to the terms and conditions of the Deposit Agreement, the Company’s Articles of
Association, Section 7.8 of the Deposit Agreement, Article (22) of this Receipt
and the provisions of or governing the Deposited Securities and other applicable
laws, the Holder of the American Depositary Shares evidenced hereby is entitled
to delivery, to him or upon his order, of the Deposited Securities represented
by the ADS so surrendered. Subject to the last sentence of this paragraph,
such
Deposited Securities may be delivered in certificated form or by electronic
delivery. ADS may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such ADS (if held in registered
form) or by book-entry delivery of such ADS to the Depositary.
(ii)
A
Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer
in
blank, and if the Depositary so requires, the Holder thereof shall execute
and
deliver to the Depositary a written order directing the Depositary to cause
the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of
the
Deposit Agreement, to the Company’s Articles of Association, and to the
provisions of or governing the Deposited Securities and applicable laws, now
or
hereafter in effect), to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such ADSs, together with any certificate
or
other proper documents of or relating to title for the Deposited Securities
or
evidence of the electronic transfer thereof (if available) as the case may
be to
or for the account of such person. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends
or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The
Depositary may, in its discretion, refuse to accept for surrender a number
of
American Depositary Shares representing a number of Shares other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number
of
ADSs representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net
of
(a) applicable fees and charges of, and expenses incurred by, the Depositary
and
(b) taxes withheld) to the person surrendering the Receipt. At the request,
risk
and expense of any Holder so surrendering a Receipt, and for the account of
such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents
of or
relating to title to, the Deposited Securities represented by such Receipt
to
the Depositary for delivery at the Principal Office of the Depositary, and
for
further delivery to such Holder. Such direction shall be given by letter or,
at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission
(3) Transfers,
Split-Ups and Combinations of Receipts.
Subject
to the terms and conditions of the Deposit Agreement, the Registrar shall
register transfers of Receipts on its books, upon surrender at the Principal
Office of the Depositary of a Receipt by the Holder thereof in person or by
duly
authorized attorney, properly endorsed or accompanied by proper instruments
of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of Germany and of any other applicable
jurisdiction. Subject to the terms and conditions of the Deposit Agreement,
including payment of the applicable fees and charges of the Depositary, the
Depositary shall execute and deliver a new Receipt(s) (and if necessary, cause
the Registrar to countersign such Receipt(s)) and deliver same to or upon the
order of the person entitled to such Receipts evidencing the same aggregate
number of ADSs as those evidenced by the Receipts surrendered. Upon surrender
of
a Receipt or Receipts for the purpose of effecting a split-up or combination
of
such Receipt or Receipts upon payment of the applicable fees and charges of
the
Depositary, and subject to the terms and conditions of the Deposit Agreement,
the Depositary shall, without unreasonable delay, execute and deliver a new
Receipt or Receipts for any authorized number of ADSs requested, evidencing
the
same aggregate number of ADSs as the Receipt or Receipts surrendered.
(iii)
(4) Pre-Conditions
to Registration, Transfer, Etc.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and
fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to
it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to
the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of Receipts generally may be suspended, during any period when the transfer
books of the Depositary are closed or if any such action is deemed necessary
or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of,
or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs
to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company
or
the deposit of Shares in connection with voting at a shareholders' meeting
or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities,
and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or
other
Deposited Securities required to be registered under the provisions of the
U.S.
Securities Act of 1933, as amended, unless a registration statement is in effect
as to such Shares.
(iv)
(5) Compliance
With Information Requests/Disclosure of Interests.
Notwithstanding any other provision of the Deposit Agreement, this Receipt,
the
Articles of Association of the Company and applicable law, each Holder and
Beneficial Owner agrees to (a) provide such information as the Company or the
Depositary may request pursuant to law (including, without limitation, relevant
German law, any applicable law of the United States, the Articles of Association
of the Company, any resolutions of the Company’s Management Board or Supervisory
Board adopted pursuant to such Articles of Association, the requirements of
any
markets or exchanges upon which the Shares, ADSs or Receipts are listed or
traded, or to any requirements of any electronic book-entry system by which
the
Shares, ADSs or Receipts may be transferred, and (b) be bound by and subject
to
applicable provisions of the laws of Germany, the Articles of Association of
the
Company and the requirements of any markets or exchanges upon which the ADSs,
Receipts or Shares are listed or traded, or pursuant to any requirements of
any
electronic book-entry system by which the ADSs, Receipts or Shares may be
transferred, to the same extent as if such Holder and Beneficial Owner held
Shares directly, in each case irrespective of whether or not they are Holders
or
Beneficial Owners at the time such request is made, and (c) without limiting
the
generality of the foregoing, comply with all applicable provisions of German
law, the rules and requirements of XETRA and any other stock exchange on which
the Shares are, or will be registered, traded or listed and the Company’s
Articles of Association regarding any such Holder or Beneficial Owner’s interest
in Shares (including the aggregate of ADSs and Shares held by each such Holder
or Beneficial Owner), in compliance with Sections 21 and 22 of the Securities
Trading Act (Wertpapierhandelsgesetz)
or, if
applicable, Section 20 of the Stock Corporation Act (Aktiengesetz),
or any
substitute or supplemental provision of German law that may be bought into
force
from time to time. Each Holder and Beneficial Owner acknowledges that, 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 and (ii) the statutory notification obligations of the Stock
Corporation Act apply to any enterprise that, either directly or by way of
imputation pursuant to the provisions of Section 20(2) or Section 16(4) of
the
Stock Corporation Act, owns more than 25% of the shares of, or 50% of the shares
or voting rights in, the Company or, after having exceeded either of these
thresholds, no longer owns such percentage. Each Holder and Beneficial Owner
acknowledge 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. Each Holder and Beneficial Owner of ADSs further agrees
to furnish the Company with any such notification made in accordance with this
Section 3.4 and to comply with requests from the Company pursuant to the laws
of
Germany, the rules and requirements of XETRA and any other stock exchange on
which the Shares are, or will be registered, traded or listed, and the Company’s
Articles of Association, whether or not they are Holders and/or Beneficial
Owner
at the time of such request. The Depositary agrees to use its reasonable efforts
to forward upon the request of the Company, and at the Company’s expense, any
such request from the Company to the Holders and to forward to the Company
any
such responses to such requests received by the Depositary. The
Company reserves the right to instruct Holders to deliver their American
Depositary Shares for cancellation and withdrawal of the Deposited Securities
so
as to permit the Company to deal directly with the Holder thereof as a holder
of
Shares and Holders agree to comply with such instructions. The Depositary agrees
to cooperate with the Company in its efforts to inform Holders of the Company's
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk, liability or expense on the part
of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder. To the extent under applicable German
law the Company is legally permitted to remove or limit the voting rights of
any
Shares on account of the act or omission to act by a Holder, the Company may
instruct the Depositary not to permit those Holders (other than DTC, Cede &
Co. or another nominee of DTC) designated in writing by the Company to provide
voting instructions with respect to the Shares represented by such Holders
American Depositary Shares and the Depositary agrees to withhold voting
instruction rights from such Holders (other than DTC, Cede & Co. or another
nominee of DTC).
(v)
(6) Liability
of Holder for Taxes, Duties and Other Charges.
If any
tax or other governmental charge shall become payable by the Depositary or
the
Custodian with respect to any Receipt or any Deposited Securities or ADSs,
such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary
may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares,
and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) hereof)
the withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian and each of
their
respective agents, directors, employees and Affiliates for, and hold each of
them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
(7) Representations
and Warranties of Depositors.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that (i) such Shares (and the certificates therefor)
are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any,
with
respect to such Shares, have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented
for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim and are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) the Shares presented for deposit
have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties
are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(vi)
(8) Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit, any Holder and any Beneficial Owner may
be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or
other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22) hereof and
the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of
the
proceeds thereof or the delivery of any Deposited Securities until such proof
or
other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation
are
provided.
(9) Charges
of Depositary.
The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement; provided, however, that no fees shall be payable
upon distribution of cash dividends so long as the charging of such fee is
prohibited by the exchange, if any, upon which the ADSs are listed:
(i) to
any
person to whom ADSs are issued or to any person to whom a distribution is made
in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock,
bonus
distributions, stock splits or
other
distributions (except where converted to cash), a fee not in excess of U.S.
$
5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the Deposit
Agreement to be determined by the Depositary;
(ii) to
any
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
including, inter
alia,
cash
distributions made pursuant to a cancellation or withdrawal, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to
any
Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100 ADS held for the
distribution of cash proceeds, including cash dividends or sale of rights and
other entitlements, not made pursuant to a cancellation or withdrawal;
(vii)
(iv) to
any
Holder of ADSs, a fee not in the excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) issued upon the exercise of rights; and
(v) to
any
Holder of ADSs an annual fee not in excess of U.S. $ 2.00 per 100 ADSs for
the
operation and maintenance costs associated with the administration of such
ADSs.
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit
and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges:
(i) taxes
(including applicable interest and penalties) and other governmental
charges;
(ii) such
registration fees as may from time to time be in effect for the registration
of
Shares or other Deposited Securities with the Foreign Registrar and applicable
to transfers of Shares or other Deposited Securities to or from the name of
the
Custodian, the Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such
cable, telex , facsimile and electronic transmission and delivery expenses
as
are expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners of
ADSs;
(iv) the
expenses and charges incurred by the Depositary in the conversion of foreign
currency;
(v) such
fees
and expenses as are incurred by the Depositary in connection with compliance
with exchange control regulations and other regulatory requirements applicable
to Shares, Deposited Securities, ADSs and ADRs;
(vi) the
fees
and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable;
(vii) any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time.
Any
other
charges and expenses of the Depositary under the Deposit Agreement will be
paid
by the Company upon agreement between the Depositary and the Company. All fees
and charges may, at any time and from time to time, be changed by agreement
between the Depositary and Company but, in the case of fees and charges payable
by Holders or Beneficial Owners, only in the manner contemplated by Article
(20)
of this Receipt.
(10) Title
to Receipts.
It is a
condition of this Receipt, and every successive Holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt
(and to each ADS evidenced hereby) is transferable by delivery of the Receipt,
provided it has been properly endorsed or accompanied by proper instruments
of
transfer, such Receipt being a certificated security under the laws of the
State
of New York. Notwithstanding any notice to the contrary, the Depositary may
deem
and treat the Holder of this Receipt (that is, the person in whose name this
Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or be subject
to any liability under the Deposit Agreement or this Receipt to any holder
of
this Receipt or any Beneficial Owner unless such holder is the Holder of this
Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s representative
is the Holder registered on the books of the Depositary.
(viii)
(11) Validity
of Receipt.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or enforceable for any purpose, unless this Receipt has been (i) dated,
(ii) signed by the manual or facsimile signature of a duly authorized signatory
of the Depositary, (iii) if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar and (iv) registered in the books
maintained by the Depositary or the Registrar, as applicable, for the issuance
and transfer of Receipts. Receipts bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time
of
signature was a duly-authorized signatory of the Depositary or the Registrar,
as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the execution and delivery
of
such Receipt by the Depositary or did not hold such office on the date of
issuance of such Receipts.
(12)
Available
Information; Reports; Inspection of Transfer Books.
The
Company is exempt from the periodic reporting requirements of the Exchange
Act.
The
Company will submit to the Commission or otherwise publish on its website
(xxxxxxxx.xxx) such notices, reports and communications which are required
to be
submitted to the Commission by Rule 12g3-2(b) of the Exchange Act. To the extent
submitted to the Commission, such notices, reports and communications may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of this Agreement at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The
Depositary shall make available during normal business hours on any Business
Day
for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b)
made
generally available to the holders of such Deposited Securities by the
Company.
The
Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable
times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of
the
Company or other than a matter related to the Deposit Agreement or the
Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in good faith in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Article (22) hereof.
(ix)
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Dated:
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DEUTSCHE
BANK TRUST
|
|
COMPANY
AMERICAS, as Depositary
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|
|
By:
__________________________________
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|
|
Name:
|
|
|
Title:
|
|
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By:
__________________________________
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|
|
Name:
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Title:
|
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
(x)
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(13) Dividends
and Distributions in Cash, Shares, etc.
Whenever the Depositary receives confirmation from the Custodian of receipt
of
any cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Shares, rights securities or other
entitlements under the Deposit Agreement, the Depositary will, if at the time
of
receipt thereof any amounts received in a foreign currency can, in the judgment
of the Depositary (upon the terms of the Deposit Agreement), be converted on
a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion
to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder
a
fraction of one cent. Any
such
fractional amount shall be rounded to the nearest whole cent and so distributed
to HolderolHols
entitled thereto.
If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Any foreign currency received by the Depositary shall
be
converted upon the terms and conditions set forth in the Deposit
Agreement.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) distribute
to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to
the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes),
or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interest in the additional Shares distributed upon
the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds
upon
the terms set forth in the Deposit Agreement.
In
the
event that (x) the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which
the
Depositary is obligated to withhold, or, (y) if the Company, in the fulfillment
of its obligations under the Deposit Agreement, has either (a) furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no
such
registration statement has been declared effective), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, the Depositary
may dispose of all or a portion of such property (including Shares and rights
to
subscribe therefor) in such amounts and in such manner, including by public
or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and fees and charges of, and expenses incurred by, the Depositary)
to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
(xi)
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation
required under the Deposit Agreement (including, without limitation, any legal
opinions the Depositary may reasonably request, to be furnished at the expense
of the Company) determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and conditions
of
the Deposit Agreement, establish an ADS Record Date according to Article (14)
hereof and establish procedures to enable the Holder hereof to elect to receive
the proposed distribution in cash or in additional ADSs. If a Holder elects
to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in
the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation set forth in
the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in
Germany in respect of the Shares for which no election is made, either (x)
cash
or (y) additional ADSs representing such additional Shares, in each case, upon
the terms described in the Deposit Agreement. Nothing herein shall obligate
the
Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of
Shares.
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares to be made available to Holders of ADSs,
the
Company shall determine whether it is lawful and reasonably practicable to
make
such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if the Company shall have timely requested that
such rights be made available to Holders, the Depositary shall have received
the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell
the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date and establish
procedures (x) to distribute such rights (by means of warrants or otherwise)
and
(y) to enable the Holders to exercise the rights (upon payment of the applicable
fees and charges of, and expenses incurred by, the Depositary and taxes).
Nothing herein or in the Deposit Agreement shall obligate the Depositary to
make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs). If (i) the Company does not timely request the
Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails
to
receive the documentation required by the Deposit Agreement or determines it
is
not lawful or reasonably practicable to make the rights available to Holders,
or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public and private sale) as it
may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and in the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded
to
the Holders on behalf of the Company in connection with the rights distribution.
(xii)
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
or
any other applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights or such
securities to Holders and to sell the securities represented by such rights,
the
Depositary will not distribute such rights to the Holders (i) unless and until
a
registration statement under the Securities Act covering such offering is in
effect or (ii) unless the Company furnishes to the Depositary opinion(s) of
counsel for the Company in the United States and counsel to the Company in
any
other applicable country in which rights would be distributed, in each case
satisfactorily to the Depositary, to the effect that the offering and sale
of
such securities to Holders and Beneficial Owners are exempt from, or do not
require registration under, the provisions of the Securities Act or any other
applicable laws. In the event that the Company, the Depositary or the Custodian
shall be required to withhold and does withhold from any distribution of
property (including rights) an amount on account of taxes or other governmental
charges, the amount distributed to the Holders shall be reduced accordingly.
In
the event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable
to
pay any such taxes or charges.
There
can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as
the
holders of Shares or to exercise such rights. Nothing herein shall obligate
the
Company to file any registration statement in respect of any rights or Shares
or
other securities to be acquired upon the exercise of such rights.
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make
such
distribution unless (i) the Company shall have timely requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall
have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution is reasonably
practicable; provided,
however,
that,
if in the opinion of the Depositary or its counsel, it cannot cause such
securities or property to be distributed or such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including without limitation any requirement (i) that the Company, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or (ii) that under applicable securities or exchange
control regulations or law such securities must be registered under the
Securities Act or other law in order to be distributed to Holders), the
Depositary deems such distribution not to be feasible, the Depositary may
require opinions of U.S. and German counsel to the Company, which opinions
the
Company agrees to ensure are provided, in such form and from such counsel as
is
reasonably satisfactory to the Depositary, as to the legality of such
distribution and such other matters as the Depositary may reasonably require
to
be covered thereby. Upon satisfaction of such conditions, the Depositary shall
distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties)
or
other governmental charges applicable to the distribution.
(xiii)
If
the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the proceeds of
such
sale received by the Depositary (net of (a) applicable fees and charges of,
and
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(14) Fixing
of Record Date.
Whenever necessary in connection with any distribution (whether in cash, shares,
rights or other distribution), or whenever for any reason the Depositary causes
a change in the number of Shares that are represented by each ADS, or whenever
the Depositary shall receive notice of any meeting of holders of Shares or
other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, or any other matter,
the
Depositary shall fix a record date ("ADS Record Date") for the determination
of
the Holders who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to
such
changed number of Shares represented by each ADS. Subject to applicable law
and
the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of record at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
(xiv)
(15) Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting at which the holders
of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
ADS Record Date in respect of such meeting or solicitation of such consent
or
proxy. The Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if the
request shall not have been received by the Depositary at least 30 days prior
to
the date of such vote or meeting), at the Company's expense and provided no
U.S.
legal prohibitions exist, mail by ordinary, regular mail delivery or by
electronic transmission (if agreed by the Company and the Depositary), unless
otherwise agreed in writing by the Company and the Depositary, to Holders as
of
the ADS Record Date: (a) such notice of meeting or solicitation of consent
or
proxies including the statement (as provided by the Company) of 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"), setting forth
its recommendations with regard to voting of the Shares pursuant to Section
128
(2) of the German Stock Corporation Act as to any matter concerning which the
notice from the Company indicates that a vote is to be taken by holders of
Shares, together with an English translation thereof (the "Recommendation");
(b)
a statement that the Holders as of the ADS Record Date will be entitled, subject
to any applicable law, the provisions of the Deposit Agreement, the Company’s
Articles of Association and the provisions of or governing Deposited Securities
(which provisions, if any, shall be summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Shares or other Deposited Securities represented by
such
Holder's ADSs; and (c) a brief statement as to the manner in which 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 Proxy Bank to vote the Shares in accordance
with the Recommendation pursuant to Section 128 (2) of the German Stock
Corporation Act. Upon the timely receipt of written instructions of a Holder
of
ADSs on the ADS Record Date, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Company’s Articles of Association and the provisions of the Deposited
Securities, to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities represented by ADSs held by such Holder in accordance
with
such instructions.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions
to
vote any of the Deposited Securities, or for the manner in which such vote
is
cast or the effect of any such vote.
(xv)
(16) Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it otherwise is a party, any securities which shall be received
by
the Depositary or a Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to
the
extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right
to
receive such additional securities. Alternatively, the Depositary may, with
the
Company's approval, and shall, if the Company shall so request, subject to
the
terms of the Deposit Agreement and receipt of satisfactory documentation
contemplated by the Deposit Agreement, execute and deliver additional Receipts
as in the case of a stock dividend on the Shares, or call for the surrender
of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to
this
form of Receipt specifically describing such new Deposited Securities and/or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such
place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred by,
the Depositary and taxes) for the account of the Holders otherwise entitled
to
such securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(17) Exoneration.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account
of,
or delayed in, doing or performing any act or thing required by the terms of
the
Deposit Agreement and this Receipt, by reason of any provision of any present
or
future law or regulation of the United States,
Germany
or any other country, or of any other governmental authority or regulatory
authority or stock exchange, or by reason of any provision, present or future
of
the Company’s Articles of Association or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii)
by
reason of any exercise of, or failure to exercise, any discretion provided
for
in the Deposit Agreement or in the Company’s Articles of Association or
provisions of or governing Deposited Securities, (iii) for any action or
inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents in reliance upon the advice of or information
from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS, (v) for any action or inaction
of the Proxy Bank, or (vi) for any consequential or punitive damages for any
breach of the terms of the Deposit Agreement. The Depositary, its controlling
persons, its agents, any Custodian and the Company, its controlling persons
and
its agents may rely and shall be protected in acting upon any written notice,
request, opinion or other document believed by it to be genuine and to have
been
signed or presented by the proper party or parties or
authorized party or parties. No disclaimer of liability under the Securities
Act
is intended by any provision of the Deposit Agreement.
(xvi)
(18) Standard
of Care.
The
Company and the Depositary and their respective agents assume no obligation
and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons (except for the
Company’s and the Depositary’s obligations specifically set forth in Section 5.8
of the Deposit Agreement), provided, that the Company and the Depositary and
their respective agents agree to perform their respective obligations
specifically set forth in the Deposit Agreement without gross negligence or
bad
faith. The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for
the
manner in which any vote is cast (provided that such act or omission is in
good
faith) or the effect of any vote, provided that any such action or omission
is
in good faith and in accordance with the terms of the Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that
any
distribution or action may be lawful or reasonably practicable, for the content
of any information submitted to it by the Company for distribution to the
Holders or for any inaccuracy of any translation thereof, for any investment
risk associated with acquiring an interest in the Deposited Securities, for
the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for
the
credit-worthiness of any third party, for allowing any rights to lapse upon
the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company. Notwithstanding the above, in no event shall the Company,
the
Depositary or any of their respective directors, officers, employees, agents
and/or Affiliates be liable for any indirect, special, punitive or consequential
damages to the Depositary, the Company, Holders, Beneficial Owners or any other
person.
(19) Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of resignation delivered to the Company, such resignation to
be
effective on the earlier of (i) the 60th
day
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to
the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation.
The
Company shall use reasonable efforts to appoint such successor depositary,
and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in
the
Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal which notice shall be effective on the later of (i) the 60th
day
after delivery thereof to the Depositary, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal. In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its commercially reasonable efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor,
and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof
as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into
or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(xvii)
(20) Amendment/Supplement.
Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges of the Depositary in connection with foreign exchange control
regulations, and taxes and other governmental charges, delivery and other such
expenses), or which shall otherwise materially prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties 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 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
or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
ADS, to consent and agree to such amendment or supplement and to be bound by
the
Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding
the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement
the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. 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 with such laws, or rules or regulations.
(xviii)
(21) Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the
terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time
to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice
of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either
case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary
may
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof
and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes or governmental charges,
be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Holder in accordance with the terms and conditions of the Deposit Agreement
and
any applicable taxes or governmental charges or assessments). At any time
following six months after the date of termination of the Deposit Agreement,
the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with
any
other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts
whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, Deposited Securities and ADSs,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for
the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges or assessments). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(xix)
(22) Compliance
with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to
the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of
1933.
(23) Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Article (23), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its affiliates and in ADSs. The Depositary
may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares
or
ADSs; provided,
however,
that
the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt and cancellation of ADSs pursuant to Section 2.6 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction
will
be (a) accompanied by or subject to a written agreement whereby the person
or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (1)
represents that at the time of the Pre-Release Transaction the Applicant or
its
customer owns the Shares or ADSs that are to be delivered by the Applicant
under
such Pre-Release Transaction, (2) agrees to indicate the Depositary as owner
of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust
for
the Depositary until such Shares or ADSs are delivered to the Depositary or
the
Custodian, (3) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (4) agrees to any additional
restrictions or requirements that the Depositary deems appropriate; (b) at
all
times fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate; (c) terminable by the Depositary
on not more than five (5) business days' notice; and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to twenty percent (20%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
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 also set limits with respect
to
the number of ADSs and Shares involved in Pre-Release Transactions with any
one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant).
(xx)
(24) Ownership
Restrictions.
Holders
and Beneficial Owners shall comply with any limitations on ownership of Shares
under the Articles of Incorporation of the Company or applicable German law
as
if they held the number of Shares their American Depositary Shares represent.
The Company shall inform the Holders, Beneficial Owners and the Depositary
of
any such ownership restrictions in place from time to time.
(25) Obligations
and other Rights of Holders and Beneficial Owners with Respect to Deposited
Securities.
The
Company intends that the rights and obligations of the Holders and Beneficial
Owners of ADSs representing Shares or other Deposited Securities be, in all
respects, as nearly identical as legally and practically possible to those
rights and obligations of the registered holders of Shares arising out of the
Stock Corporation Act (Aktiengesetz).
Notwithstanding any other provision of this Deposit Agreement, the Receipts,
the
Company’s Articles of Association and applicable law, each Holder and Beneficial
Owner agrees to be bound by and subject to applicable provisions of the laws
of
Germany, the Company’s Articles of Association and the requirements of any
markets or exchanges upon which the ADSs, Receipts or Shares are listed or
traded, or pursuant to any requirements of any electronic book-entry system
by
which the ADSs, Receipts or Shares may be transferred, including, but not
limited to, with respect to the obligations of such Holder or Beneficial Owner,
to the same extent as if such Holder or Beneficial Owner was a registered holder
of Shares. The Company agrees to make such rights arising out of the Stock
Corporation Act (Aktiengesetz)
available and to take such actions from time to time as may be necessary to
permit the Holders or Beneficial Owners to exercise such rights arising out
of
the Stock Corporation Act (Aktiengesetz)
as
though they were registered holders of Shares to the fullest extent possible
under applicable German law, U.S. law and the law of any other applicable
jurisdiction, regulation, requirements of any market or stock exchange upon
which the ADSs, Receipts or Shares are listed or traded and the Company’s
Articles of Association. The undertaking by the Company in this Section 3.5
is for the benefit of the Holders, the Beneficial Owners, the Company and the
registered holders of Shares. Nothing in this Section 3.5 is intended to
limit the rights and obligations of the Holders or Beneficial Owners hereunder
in their capacity as Holders or Beneficial Owners.
In
the
event that (i) any Holder or Beneficial Owner takes any action as the
holder or beneficial owner of an ADS evidenced by an ADR which action, if taken
by a registered holder of Shares, would be contrary to German law or the
Company’s Articles of Association, (ii) the Company so notifies the Holder
or Beneficial Owner and (iii) the Holder or Beneficial Owner has not ceased
such activity, the Company shall request in writing that such Holder or
Beneficial Owner, subject to satisfaction of the relevant provisions of this
Deposit Agreement, any applicable law, regulation, requirements of any market
or
stock exchange upon which the ADSs, Receipts or Shares are listed or traded
and
the Company’s Articles of Association and the rights of transfer or cancellation
of any ADR, effect a withdrawal of the Shares or other Deposited Securities
represented by ADSs evidenced by such ADRs in accordance with Article 2
(Surrender
of Receipts and Withdrawal of Deposited Securities)
of the
form of Receipt attached hereto as Exhibit A (face). If a Holder or Beneficial
Owner does not or cannot effect a withdrawal in accordance with the preceding
sentence and without prejudice to the foregoing, the Company shall have the
right to take such actions against such Holder (or the Beneficial Owner of
the
American Depositary Shares evidenced by such Holder's Receipts) as it shall
deem
necessary in order to equalize the rights and obligations of such Holder or
Beneficial Owner with the rights and obligations that such Holder or Beneficial
Owner would have under German law if it were a registered holder of Shares.
The
Depositary, if requested by the Company, shall provide a notice from the Company
to such Holder(s) as the Company so requests in connection with the Company’s
equalization efforts under this Section 3.5. Neither the Depositary nor any
of its agents shall have any obligations under this Section 3.5 other than
with
respect to forwarding the notice described in the preceding sentence.
(xxi)
(26) Return
of Unlawful Distribution.
If the
Company shall determine that any distribution previously made by the Company
to
the Depositary, whether initially to the Depositary in its capacity as a
shareholder of the Company or with respect to any onward distribution to Holders
or Beneficial Owners by the Depositary under the terms of this Deposit
Agreement, was not lawfully made or is required under applicable law to be
returned to the Company (an “Unlawful Distribution”), the Company shall so
notify the Depositary. If the Unlawful Distribution is still held by the
Depositary or the Custodian and no ex-date for such distribution has been
established with respect thereto, then the Depositary or the Custodian shall
promptly return such Unlawful Distribution to the Company, net of any and all
fees and expenses incurred by the Depositary, the Custodian and each of their
respective agents in connection therewith or otherwise related thereto
(including any costs of currency conversion and without liability for any
deficiency in the amount of the Unlawful Distribution being returned by reason
of any such costs incurred or any costs of re-converting such amount held by
the
Depositary or the Custodian into Euros to effect the return of such net Unlawful
Distribution amount to the Company, as the case may be). The Company shall
be
responsible and liable to the Depositary, the Custodian, each of their
respective agents, Holders and Beneficial Owners for any and all losses,
liabilities and expenses incurred by any of them in connection with any alleged
Unlawful Distribution and the acts or omissions to act under this Section 4.14
on the part of the Depositary, the Custodian or any of their respective agents.
If an Unlawful Distribution has already been forwarded to the Holders pursuant
to Section 4.1, 4.2, 4.3, 4.4 or 4.5 or otherwise, then, the Company may
comply with the provisions of Section 4.12 hereof and request a list of Holders
and the Depositary shall comply with the provisions of said Section 4.12 with
respect thereto. All Holders and Beneficial Owners agree to promptly return
to
the Company, the full amount of any Unlawful Distribution received by such
Holder or Beneficial Owner (net of any bank transfer or other charges reasonably
incurred in connection with the Unlawful Distribution and return of such funds
including any costs of currency conversion) and, in the event of an Unlawful
Distribution in cash required to be returned to the Company, in the currency
in
which such Unlawful Distribution was received and to cooperate with the Company
with respect to the return of such Unlawful Distribution. If any Holder or
Beneficial Owner shall refuse or fail to fulfill its obligation to return any
Unlawful Distribution to the Company in accordance with this Section 4.14,
then the Company shall have the right to take such actions as shall be necessary
to recover such Unlawful Distribution directly from such Holder or Beneficial
Owner.
(xxii)
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR
VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s)
unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
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Dated:
|
Name:________________________________
|
|
By:
|
|
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Title:
|
|
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NOTICE:
The signature of the Holder to this assignment must correspond with
the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
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If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority
to
act in such capacity, if not on file with the Depositary, must be
forwarded with this Receipt.
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SIGNATURE
GUARANTEED
____________________________
(xxiii)
