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EMM Draft of June 4, 1998
Exhibit 4.2
Exhibit A to Amended and Restated Deposit Agreement
CERTAIN RIGHTS OF THE OWNERS AND HOLDERS OF THIS AMERICAN DEPOSITARY RECEIPT
MAY BE WITHHELD IN ACCORDANCE WITH THE PROVISIONS OF AND UNDER CIRCUMSTANCES AS
SET OUT IN ARTICLE (22) HEREOF, INCLUDING, WITHOUT LIMITATION, VOTING RIGHTS
AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER DISTRIBUTIONS
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AMERICAN DEPOSITARY SHARES (Each
American Depositary Share represents one
twelfth (1/12) of one deposited Share,
without nominal value)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR AMERICAN DEPOSITARY SHARES REPRESENTING
NON-VOTING PREFERENCE BEARER SHARES,
WITHOUT NOMINAL VALUE, OF
SAP AKTIENGESELLSCHAFT SYSTEME, ANWENDUNGEN,
PRODUKTE IN DER DATENVERARBEITUNG
(A STOCK CORPORATION ORGANIZED UNDER THE LAWS OF
THE FEDERAL REPUBLIC OF GERMANY)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that ________________________________________________________
_____________________, or registered assigns IS THE OWNER OF _________________
AMERICAN DEPOSITARY SHARES
representing deposited Non-Voting Preference Bearer Shares, without nominal
value, (herein called "Shares") of SAP Aktiengesellschaft Systeme, Anwendungen,
Produkte in der Datenverarbeitung, a stock corporation organized under the laws
of the Federal Republic of Germany (herein called the "Company"). At the date
hereof, each American Depositary Share represents one twelfth (1/12) of one
Share, without nominal value, which is either deposited or subject to deposit
under the Deposit Agreement (as hereinafter defined) at the Frankfurt/Main
office of DG Bank Deutsche Genossenschaftsbank (herein called the "Custodian").
The Depositary's Corporate Trust Office is located at a different address than
its principal executive office. Its Corporate Trust Office is located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is
located at 00 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
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1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set
forth in the deposit agreement, dated as of September 12, 1995 as amended and
restated as of , 1998 (herein called the "Deposit Agreement"),
by and among the Company, the Depositary, and all Owners and Holders from time
to time of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and become bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights of Owners and
Holders of the Receipts and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in Article 7 of
this Receipt and Section 5.9 of the Deposit Agreement, and subject to the terms
and conditions of the Deposit Agreement, the Articles of Association of the
Company, the Deposited Securities and applicable law, the Owner hereof is
entitled to due assignment, transfer and delivery of all right, title, legal
ownership and interest, to it or upon its order, of such whole number of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued and a new Receipt for the number of American
Depositary Shares representing any fractional Deposited Securities and any
Deposited Securities not being withdrawn. Delivery of such Deposited Securities
may be made by (a)(i) delivery of certificates in the name of the Owner hereof
or as ordered by it or by the delivery of certificates properly endorsed or
accompanied by proper instruments of transfer to such Owner or as ordered by it,
subject to the Articles of Association of the Company, or (ii)
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delivery or transfer to the account of a German securities bank with Deutsche
Borse Clearing AG, or through the facilities of Cedel, S.A. or Xxxxxx Guaranty
Trust of New York, Brussels office, as operator of the Euroclear System, for the
benefit of such Owner or as ordered by it and (b) any other securities, property
and cash to which such Owner is then entitled in respect of this Receipt. Such
delivery will be made without unreasonable delay at the option of the Owner
hereof, either at the office of the Custodian or at the Corporate Trust Office
of the Depositary, provided that the forwarding of certificates for Shares or
other Deposited Securities for such delivery at the Corporate Trust Office of
the Depositary shall be at the risk and expense of the Owner hereof.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
be suspended only for (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, and (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing in the aggregate a fractional interest in one
Share or other Deposited Security. In the case of surrender of a Receipt
evidencing any number of American Depositary Shares representing in the
aggregate other than a whole number of Deposited Securities, together with
payment and delivery of written instructions for withdrawal of Deposited
Securities as required under this Article (2), the Depositary shall cause the
whole number of Deposited Securities requested to be withdrawn by the Owner of
such Receipt to be withdrawn and delivered to or upon the order of such Owner
and shall issue and deliver to or upon the order of the person surrendering such
Receipt, a new Receipt evidencing American Depositary Shares representing the
Deposited Securities not requested to be withdrawn, including any fractional
interests in the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
upon surrender at the Corporate Trust Office of the Depository of this Receipt,
by the Owner hereof in person or by a duly authorized attorney, properly
endorsed for transfer or accompanied by proper instruments of transfer and duly
stamped as may be required by the laws of the State of New York and of the
United States of America. Thereupon, the
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Depositary shall execute and deliver a new Receipt or Receipts to or upon the
order of the person entitled thereto, subject to receipt of any certifications
as the Depositary or the Company may require to comply with applicable laws.
This Receipt may be split into other such Receipts, or may be combined with
other such Receipts into one Receipt, evidencing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered. 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, the Custodian, or Registrar may require
(i) payment from the depositor of Shares or the 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 Deposited
Securities being withdrawn) and payment of any applicable fees as provided in
the Deposit Agreement, (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature and (iii) compliance with any
regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement or this Receipt. This Receipt may be surrendered for the
purpose of effecting a split-up or combination of such Receipt, and the
Depositary, subject to the terms and conditions of the Deposit Agreement, shall
execute and deliver a new Receipt for any authorized number of Shares
requested, evidencing the same aggregate number of American Depositary Shares
as the Receipt or Receipts surrendered.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended or withheld, or deposits of
Shares may be refused, or the registration of transfer, split-up or combination
of outstanding Receipts in particular instances may be refused, or the
registration of transfer, split-up or combination of outstanding Receipts
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable
by the Depositary or the Company at any time or from time to time because of
any requirement of applicable law or of any government or governmental or
regulatory authority, body or commission, or under any provision of the Deposit
Agreement or this Receipt or the Articles of Association of the Company, or for
any other reason, subject to the provisions of Article 24. Without limitation
of the foregoing, neither the Depositary nor the Custodian shall knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
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4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or
other governmental charge shall be payable by the Owner or Holder hereof to the
Depositary. The Depositary may, and at the request of the Company shall,
refuse to effect any registration of transfer of this Receipt (or any split-up
or combination hereof) or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by this Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner or Holder hereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
or Holder hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant (i) that such Shares and each certificate
therefor are validly issued, fully paid and nonassessable, (ii) that such
Shares are free and clear of any lien, encumbrance, security interest, charge,
mortgage, pledge or restriction on transfer, (iii) that such Shares are
accompanied by any dividend coupons for dividends to be paid in the future and
rights to receive any such dividend coupons or appropriate evidence thereof and
(iv) that the person making such deposit is duly authorized to do so. Every
such person shall also be deemed to represent that the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing
such Shares by that person are not restricted under the Securities Act of 1933.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval and
payment of all taxes and other governmental charges, legal or beneficial
ownership of Receipts, Deposited Securities and other securities and the nature
of such ownership or compliance with all applicable laws, regulations and
provisions of or governing Deposited Securities and the terms of the
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Deposit Agreement, or other information and to execute and deliver such
certificates and to make such representations and warranties, as the Depositary
or the Company may deem necessary or proper. The Depositary may, and upon the
request of the Company shall, withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are
executed and delivered or such representations and warranties made. Upon the
request of the Company, the Depositary shall provide the Company in a timely
manner copies of any such proofs and certificates and such written
representations and warranties that it receives. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that all
conditions to such deposit have been satisfied by the person depositing such
Shares under the laws and regulations of Germany and any necessary approval has
been granted by any governmental authority or body in Germany which is then
performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares and by any dividend
coupons for dividends to be paid in the future and rights to receive such
dividend coupons or appropriate evidence thereof.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of
the Custodian are for the sole account of the Depositary.
Subject to applicable law and the regulations of any exchange upon which
the American Depositary Shares are listed, the following charges shall be
incurred by any party depositing or withdrawing Shares or by any party
surrendering Receipts or to whom Receipts are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split declared by
the Company or an exchange of stock regarding the Receipts or Deposited
Securities or a distribution of Receipts pursuant to Section 4.3 of the Deposit
Agreement), whichever applicable: (1) taxes and other governmental charges, (2)
such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally applicable to transfers of Shares
to the name of the Depositary or its
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nominee or the Custodian or its nominee on the making of deposits or
withdrawals under the Deposit Agreement, (3) such air courier, cable, telex and
facsimile transmission expenses as are expressly provided in the Deposit
Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of Foreign Currency pursuant to Section 4.5 of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Section
2.3, 4.3 or 4.4, and the surrender of Receipts pursuant to Section 2.5 or 6.2
of the Deposit Agreement, (6) a fee of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement including, but not limited to Sections 4.1 through 4.4
thereof, except for any distribution of cash dividends and (7) a fee for the
distribution of securities pursuant to Section 4.2 of the Deposit Agreement,
such fee being in an amount equal to the fee for the execution and delivery of
Receipts referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause (7) treating all such
securities as if they were Shares), but which securities are instead
distributed by the Depositary to Owners.
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. LOANS AND PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.2 of the Deposit Agreement (a "Pre-Release") unless the Company requests the
Depositary to cease doing so. The Depositary may, pursuant to Section 2.5 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. In no event will the Depositary deliver Shares
prior to the receipt and cancellation of Receipts for Shares. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered ("Pre-Releasee"), that the
Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be remitted,
as the case may be, (ii) assigns all beneficial rights, title and interest in
such Shares or Receipts, as the case may be, to the Depositary in its capacity
as such and for the benefit of the Owners, and (iii) will not take any action
with respect to such Shares or Receipts, as the
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case may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be), other than in satisfaction of a Pre-Release, (b)
at all times fully collateralized with cash, U.S. government securities or such
other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application; provided, further, that the Company shall have the right to request
in writing that the Depositary cease any further Pre-Releases and the Depositary
shall be required to act upon such a request only with respect to proposed
Pre-Releases made two business days following the Depositary's receipt of the
request by the Company. The Depositary will also set Dollar limits with respect
to Pre-Release transactions to be entered into under the Deposit Agreement with
any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities under the Deposit
Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing. The Company shall have no liability to any
Holder or Owner with respect to any representations, actions or omissions by
the Depositary, or any of its agents pursuant to Section 2.9 of the Deposit
Agreement.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt (and the American Depositary Shares evidenced hereby) when
properly endorsed or
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accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument under the laws of the
State of New York; provided, however, that the Company and the Depositary,
notwithstanding any notice to the contrary, may treat the Owner hereof as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes, and neither the Depositary
nor the Company will have any obligation or be subject to any liability under
the Deposit Agreement to any holder of this Receipt, unless such holder is the
Owner hereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar (other than the
Depositary) for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized signatory of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with
the Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying by Holders and Owners at the public reference facilities maintained by
the Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. Upon the
receipt of such reports furnished by the Company pursuant to Section 5.6 of the
Deposit Agreement, the Depositary shall promptly send copies to the Owners. Any
such reports and communications, including
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any such proxy soliciting material, furnished to the Depositary by the Company
shall be furnished in English to the extent such materials are required to be
translated into English pursuant to any regulations of the Commission.
The Company shall furnish to the Depositary the name of each dealer known
to the Company depositing Shares against issuance of American Depositary Shares
evidenced by Receipts during the period covered by reports required to be filed
with the Commission.
The Depositary will keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts. At the reasonable
written request of the Company, the Company shall have the right to (i) inspect
transfer and registration records of the Depositary or its agent and take copies
thereof and (ii) require the Depositary or its agent, the Registrar and any
co-transfer agents or co-registrars to supply promptly copies of such portions
of such records as the Company may reasonably request.
The Depositary may close the transfer books, at any time or from time to
time, when transfer agents located in The City of New York generally close their
transfer books or when deemed expedient by it in connection with the performance
of its duties under the Deposit Agreement or at the request of the Company.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if any amounts
received in a Foreign Currency can in the reasonable judgment of the Depositary
be converted on a reasonable basis into United States dollars transferable to
the United States, and subject to the provisions of Section 4.5 of the Deposit
Agreement and Article 13 hereof, convert such dividend or distribution into
Dollars and shall as promptly as practicable distribute the amount thus received
(net of the expenses of the Depositary in connection with the conversion of such
Foreign Currency into Dollars and such other fees and expenses as provided in
Section 5.9 of the Deposit Agreement) to the Owners of Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such
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Deposited Securities held by them respectively; provided, however, that in the
event that the Company 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 or other governmental
charges, the amount distributed to the Owners of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly; provided, further, that the Company may elect, but is not
obligated, to convert any such dividend or distribution into Dollars on behalf
of the Holders, either (x) through distribution of Dollars rather than Deutsche
Marks to the Depositary or (y) upon reasonable notice to the Depositary given in
advance of any such dividend or distribution, through payment to the Depositary
of the number of Dollars equivalent to (on the basis of an exchange rate which
approximates the offer rate of exchange as quoted by the Federal Reserve Bank of
Germany or the new European Central Bank as of the date of receipt of such
currency) the number of Deutsche Marks received by the Depositary pursuant to
such dividend or distribution, in exchange for such Deutsche Xxxx and the
Company shall be responsible for establishing the appropriate rate or
distribution and the timely delivery of funds.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Custodian or the Depositary receives any distribution
other than a distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit
Agreement, the Depositary shall, as promptly as practicable, cause the
securities or property received by it or the Custodian to be distributed to the
Owners of Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if the
Company shall so direct or if in the reasonable opinion of the Depositary such
Distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary determines that it
is not lawful or feasible to make such a distribution to all or certain Owners,
the Depositary may adopt such method as it may deem lawful, equitable and
practicable for the purpose of effecting a distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.9 of the Deposit Agreement)
shall be distributed by the Depositary to the Owners of Receipts entitled
thereto as in the case of a distribution received in cash. To the extent such
securities or property, or the net proceeds thereof, are not effectively
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distributed to Owners as provided in the Deposit Agreement, the same shall
constitute Deposited Securities and each American Depositary Share shall
thereafter represent its proportionate interest, in such securities, property or
net proceeds.
If any distribution upon Deposited Securities consists of a dividend in,
or free distribution of, Shares, the Depositary may and shall if the Company
shall so request, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary will sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions set forth in Section 4.1 of the Deposit Agreement. If for any
reason (including any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges) the Depositary
determines that it is not lawful or feasible to make a distribution of Shares to
all or certain Owners, the Depositary may adopt such method as it may deem
lawful, equitable and practicable for the purpose or effecting such
distribution, including, but not limited to, the public or private sale of the
Shares thus received, or any part thereof, and the net proceeds of any such sale
(net of fees and expenses of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners entitled
thereto, all in the manner and subject to the conditions of Section 4.1 of the
Deposit Agreement. To the extent such Shares, or the net proceeds thereof, are
not effectively distributed to Owners as provided in the Deposit Agreement, the
same shall constitute Deposited Securities and each American Depositary Share
shall thereafter also represent its proportionate interest in the additional
Shares distributed upon the Deposited Securities represented thereby and such
net proceeds.
In the event that the Depositary determines in its reasonable discretion
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any
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tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary 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 any 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 Owners of Receipts
entitled thereto in proportion to the number of American Depositary Shares held
by them respectively and the Depositary shall distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement. The
Depositary or its agent shall remit to appropriate governmental authorities and
agencies in the United States all amounts, if any, withheld and owing to such
authorities and agencies by the Depositary.
In addition, to the extent practicable, and in accordance with instructions
from the Company, the Depositary and the Custodian will take all practicable
administrative actions necessary to obtain all tax refunds and to reduce German
withholding taxes on dividends and other distributions on the Deposited
Securities.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive Foreign Currency, by
way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
Foreign Currency so received can in the reasonable judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, as promptly as practicable, by sale or in any other manner that it
may determine, such Foreign Currency into Dollars, and such Dollars shall be
distributed, as promptly as practicable, to the Owners entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation and in
accordance with the terms thereof, provided, however, that the Company may
convert Foreign Currency in accordance with Article 12 hereof. Such distribution
may be made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
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If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable; provided
that if such application involves or refers to the Company or is made on behalf
of the Company, such application shall not be filed until approved by the
Company.
If at any time the Depositary shall determine that in its reasonable
judgment any Foreign Currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
in its reasonable discretion distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to, or hold such Foreign Currency uninvested and without liability
for interest thereon for the respective accounts of, the Owners entitled to
receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be
effected for distribution in Dollars to some of the Owners entitled thereto, the
Depositary may in its reasonable discretion make such conversion and
distribution in Dollars to the extent permissible to the Owners entitled thereto
and may distribute the balance of the Foreign Currency received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
14. RIGHTS.
------
(a) In the event that the Company shall offer or cause to be offered
to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall,
following Consultation with the Company as to the procedure to be followed, (i)
make such rights available to any Owners as provided in clause (A) below, (ii)
dispose of such rights on behalf of any Owners and make the net cash proceeds
available in Dollars to such Owners as provided in clause (B) below or, (iii) if
by the terms of such rights offering or, for any reason, the Depositary may not
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either make such rights available to any Owners or dispose of such rights and
make the net proceeds available to such Owners, then the Depositary shall allow
the rights to lapse.
(A) If at the time of the offering of any rights the Depositary
determines, following Consultation with the Company, that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees of the Depositary
and any other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, exercise the rights and purchase the
Shares, and the Company shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.2 of
the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to such Owner. Such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to such
restrictions on sale, deposit, cancellation, and transfer as the Depositary
shall deem necessary, in its reasonable discretion, in order to comply with
legal requirements or as shall be instructed by the Company.
(B) If at the time of the offering of any rights, the Depositary
determines, following Consultation with the Company, that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net cash
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and
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conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise and distribute the net cash proceeds, as in the case of a
distribution received in cash pursuant to Section 4.1 of the Deposit Agreement.
(b) The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from counsel in the United States for the Company upon which the Depositary may
rely that such distribution to such Owner is exempt from such registration.
Nothing in this Receipt or in the Deposit Agreement shall create, or shall be
construed to create, any obligation on the part of the Company to file a
registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective.
(c) The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary 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 respect of any matter, the
Depositary shall fix a record date which shall be, to the extent practicable,
the same date as the record date for the Shares or other Deposited Securities,
as the case may be, or as close thereto as practicable, after Consultation with
the Company, (a) for the determination of the Owners of Receipts who shall be
(i) entitled to
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receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to exercise, or give instructions for the exercise of,
voting rights at any such meeting, or (b) for fixing the date on or after which
each American Depositary Share will represent the changed number of Shares.
Subject to the provisions of Sections 4.1 through 4.5 of the Deposit Agreement
and to the other terms and conditions thereof, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof or to exercise the rights of Owners
under the Deposit Agreement with respect to such changed number of Shares
represented by each American Depositary Share in proportion to the number of
American Depositary Shares held by them respectively and to exercise, or give
instructions for the exercise of, voting rights and to act in respect of any
other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of (a) notice from the Company of any meeting of holders of
Shares or other Deposited Securities and (b) the statement of the Custodian or
such other major commercial German bank as may be reasonably chosen by the
Depositary to act as a proxy bank (the "Proxy Bank"), setting forth its
recommendations with regard to voting of the Shares as to any matter which is
set forth in the notice from the Company on which a vote is to be taken by
holders of Shares, together with an English translation thereof (the
"Recommendation"), unless otherwise requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement that the Owners and Holders ("Voters") as of
the close of business on a specified record date will be entitled, subject to
any applicable provision of German law, the Articles of Association of the
Company, the Receipts and the Deposited Securities, to exercise, or to give
instructions for the exercise of, the voting rights, if any, pertaining to the
whole number of Shares or other Deposited Securities represented by their
respective American Depositary Shares on such date (c) the Recommendation and
(d) a statement as to the manner in which such instructions may be given,
including an express indication that if no voting instructions are received on
or before the date established by the Depositary for such purpose in accordance
with Section 4.7 of the Deposit Agreement (the "Instruction Date") then the
Voters shall in each case be deemed to have instructed the Depositary to vote
or cause the shares to be voted in accordance with the Recommendation.
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In addition, each Voter who desires to exercise, or give instructions for
the exercise of, voting rights shall be required to execute and return to the
Depositary on or before the Instruction Date, a document provided by the
Depositary which (a) either (1) authorizes such Voter's American Depositary
Shares to be delivered to a blocked account established for such purpose at The
Depository Trust Company ("DTC") (as provided below), or (2) instructs the
Depositary to block the Shares without delivering the American Depositary
Shares to the Depositary and (b) instructs the Depositary as to how the whole
number of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Voter's Receipts are to be voted.
Upon the written request of a Voter, as applicable, on such record date,
received on or before the Instruction Date, the Depositary shall endeavor,
insofar as practicable and permitted under German law, the Articles of
Association of the Company and the Receipts, to vote or cause to be voted the
amount of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company agrees, without any liability to the
Voters arising hereunder, to provide notice, to the extent practicable, of any
meeting of Voters of Shares or other Deposited Securities containing the
requisite information, together with English translations, to the Depositary
within the twelve days following the publication of the invitation to the
shareholders meeting in the German Federal Gazette. Voting rights may be
exercised only in respect of twelve (12) American Depositary Shares, or
integral multiples thereof. The Depositary shall not vote or attempt to
exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions received from the Voters, as applicable, as of such record date.
Subject to the following paragraph of this Article (16), if no specific
voting instructions are received by the Depositary from any Voter (to whom
Notice was sent by the Depositary) with respect to the Deposited Securities
represented by the American Depositary Shares evidenced by such American
Depositary Receipts on or before the Instruction Date, such Voter shall be
deemed, and the Depositary shall deem such Voter, to have instructed the
Depositary to vote such Deposited Securities or to cause such Deposited
Securities to be voted in accordance with the Recommendation. In no event may
the Depositary itself exercise any voting discretion over any Shares or other
Deposited Securities.
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Anything in this Deposit Agreement to the contrary notwithstanding, in the
event that the Proxy Bank shall fail to supply the Recommendation to the
Depositary at least twenty-one (21) calendar days prior to any meeting of
holders of Shares or other Deposited Securities with respect to which the
Depositary has received notice from the Company, the Depositary shall mail the
Notice (which in this case will not contain the Recommendation or the indication
concerning the proxy to be given to the Proxy Bank) to the Voters as herein
above provided, and, thereafter, in any case in which no specific voting
instructions are received by the Depositary from a Voter on or before the
Instruction Date with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such American Depositary Receipts, no
votes shall be cast at such meeting with respect to such Deposited Securities.
Nothing in this Deposit Agreement shall be construed to grant to a Voter
any voting rights with respect to Deposited Securities to which, by their
terms, voting rights do not otherwise attach.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value (including, without
limitation, the restatement of nominal value in any other currency), change in
par value, split-up, 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 is a
party, any securities which shall be received by the Depositary or a Custodian
in exchange for or in conversion, replacement or otherwise in respect of
Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the new Deposited Securities so received, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, and upon the request of the Company shall, execute and deliver additional
Receipts as in the case of a distribution in the Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Article 17 in respect of the Deposited Securities, the
Depositary shall give notice thereof in writing to all Owners. Notwithstanding
the foregoing, in the event that
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any security so received may not be lawfully distributed to some or all Owners,
the Depositary may, and upon the request of Company shall, sell such securities
at a public or private sale, at such place or places and upon such terms as it
may deem proper, and may allocate the net proceeds of such sale for the account
of the Owners otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Owners and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
None of the Depositary, the Company or any of their respective officers,
directors, employees, agents or affiliates shall incur any liability to any
Owner or Holder of any Receipt, if by reason of any provision of any present or
future law, order, decree, moratorium, fiat or regulation of the United States
or any other country, or of any other governmental or regulatory authority or
stock exchange, or by reason of any provision, present or future, of the
Articles of Association of the Company, or by reason of any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary, or the Company or any of
their respective officers, directors, employees, agents or affiliates shall be
prevented or forbidden from or delayed in, or be subject to any civil or
criminal penalty on account of doing or performing any act or thing which by the
terms of the Deposit Agreement or Deposited Securities it is provided shall be
done or performed; nor shall the Depositary, the Company or any of their
respective officers, directors, employees, agents or affiliates incur any
liability to any Owner or Holder of a Receipt by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.4 of the Deposit Agreement,
or for any other reason, such distribution or offering may not be made available
to Owners of Receipts, and the Depositary may not dispose of such distribution
or offering on behalf of such Owners and make the net cash proceeds available to
such Owners, then the Depositary shall not make such distribution or offering,
and shall allow any rights, if applicable, to lapse.
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Each of the Company, its agents and their respective officers,
employees and affiliates assumes no obligation nor shall it be subject to any
liability under the Deposit Agreement to Owners or Holders or any other
persons, other than as set forth below to the Depositary and the Custodian, and
any agent of the Custodian or the Depositary appointed under the Deposit
Agreement with the Company's prior written consent. Each of the Company, its
agents and their respective officers, directors, employees and affiliates
assumes no obligation nor shall it be subject to any liability under the
Deposit Agreement to the Depositary, except that it agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. Each of the Company, its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement to the Custodian or any
agent of the Depositary or the Custodian, except under Section 5.8 of the
Deposit Agreement. Each of the Depositary, its agents and their respective
officers, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement to any Owner or Holder
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in the Deposit Agreement without negligence or bad
faith. The Depositary and the Company undertake to perform such duties and only
such duties as are specifically set forth in the Deposit Agreement, and no
implied covenants or obligations shall be read into the Deposit Agreement
against the Depositary or the Company or their respective agents. None of the
Depositary, the Company or any of their respective 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 in its sole discretion against all expense and
liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary. None of the
Depositary, the Company or any of their respective agents shall be liable for
any action or nonaction by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Owner, or any other person believed by it in good faith to be competent to give
such advice or information including, but not limited to, any such action or
nonaction based upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether, in connection with a
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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 negligence or bad faith while
it acted as Depositary. The Depositary shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
The Company agrees to indemnify the Depositary, its officers, directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any loss, liability or reasonable expense which may arise
out of acts performed or omitted, in accordance with the provisions of the
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or any Custodian
or their respective officers, directors, employees, agents and affiliates,
except for any liability or expense arising out of the negligence, willful
misconduct or bad faith of any of them, or (ii) by the Company or any of its
officers, directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release transaction (as defined in Section 2.9 of the Deposit Agreement) of
a Receipt or Receipts in accordance with Section 2.9 of the Deposit Agreement
and which would not otherwise have arisen had such Receipt or Receipts not been
the subject of a Pre-Release pursuant to Section 2.9 of the Deposit Agreement;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or
preliminary prospectus (or preliminary placement memorandum), relating to the
offer of sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary
or any Custodian (other than the Issuer), as applicable, furnished in writing
and not materially changed or altered by the Company expressly for use in any
of the foregoing
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documents, or, (ii) if such information is provided, the failure to state a
material fact necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its officers, directors,
employees, agents and affiliates and hold them harmless from any loss,
liability or expense which may arise out of acts performed or omitted by the
Depositary or the Custodian or their respective officers, directors, employees,
agents and affiliates due to their negligence, willful misconduct or bad faith.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. In case at
any time the Depositary shall resign or be removed, the Company will use its
best efforts to appoint a successor depositary, which will be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Every successor depositary will execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment under the Deposit
Agreement, and thereupon such successor depositary, without any further act or
deed, will become fully vested with all the rights, powers, duties, and
obligations of its predecessor; but such predecessor, upon payment of all sums
due it and on the written request of the Company, will execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor under the Deposit Agreement, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor, and
shall deliver to such successor a list of the Owners of all outstanding Receipts
and any other information relating to the Deposit Agreement or the Receipts
reasonably requested by such successor. Any such successor depositary will
promptly mail notice of its appointment to the Owners. Whenever the Depositary
determines in its reasonable discretion that it is in the best interest of the
Owners to do so, it may discharge any Custodian under the Deposit Agreement and
appoint a substitute Custodian, upon Consultation with the Company. Whenever the
Depositary determines in its reasonable
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discretion that it is in the best interest of the Owners to do so, it may
appoint an additional custodian or custodians, which shall thereafter be one of
the Custodians under the Deposit Agreement.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of Owners or Holders. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, air courier, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty (30) days
after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner and Holder of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive herefor the
Deposited Securities represented hereby except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement by mailing notice of such termination to the
Company and the Owners of all Receipts then outstanding if at any time 30 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in the Deposit
Agreement. On and after the date of termination, the Owner of a Receipt will,
upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.5 of the Deposit Agreement, and (c) payment
of any applicable taxes or governmental charges, be entitled to delivery, to
him or upon his order, of the amount of Deposited
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Securities represented by the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends or other
distributions with respect thereto to the Owners 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 and other
property as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of
Receipts, any expenses for the account of the Owner of such Receipts in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it thereunder, unsegregated and without liability for interest, for the
pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case,
the fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges). Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary under Sections 5.8 and 5.9 of the Deposit
Agreement.
22. COMPLIANCE WITH LAW.
The Depositary agrees to comply with all applicable laws. Each Owner and
Holder agrees that it is bound by and subject to the Articles of Association of
the Company as if such Owner or Holder were a holder of Shares, and each Owner
and Holder agrees to comply with all applicable provisions of German law and
the Articles of Association of the Company with regard to notification to the
Company, the German Federal Supervisory Authority for Securities Trading
(Bundesaufsichtsamt fur den
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Wertpapicrhandel) and any additional governmental authorities of such Owner's
or Holder's interest in Shares, including any provision requiring such Owner or
Holder to disclose voting rights amounting to, exceeding or falling below, 5,
10, 25, 50 and 75 percent of the voting rights in the Company or such other
percentage as may be required from time to time pursuant to any provision of
German law or otherwise and which may under certain circumstances be applicable
to non-voting preference shares such as the Deposited Securities if pursuant to
the provisions of German law such non-voting preference shares acquire a voting
right.
Each Owner and Holder acknowledges that failure by such Owner or Holder to
provide on a timely basis any such required notification of such Owner's or
Holder's voting rights or interests in Shares may result in the withholding of
certain rights, including, without limitation, voting rights and the rights to
receive dividends or other payments in respect of the Shares represented by
such American Depositary Shares.
Each such Owner or Holder required to provide the notification described
above may deliver such notification to the Depositary for forwarding to the
Company. The Depositary agrees to forward to the Company, as soon as
practicable, any such notifications received by the Depositary from any Owner
or Holder.
23. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS.
The Company and the Depositary may from time to time request Owners and
Holders or former Owners or former Holders to provide information as to the
capacity in which they hold or held Receipts and regarding the identity of any
other persons then or previously interested in such Receipts and various other
matters. Each such Owner and Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to Section 3.5
of the Deposit Agreement and such agreement shall survive any disposition of
such Owner's or Holder's interest in Shares or Receipts.
24. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not
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limited to, 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.
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