Effective December 9, 2002 Digitale Telekabel AG has
changed its name to DTA Holding Aktiengesellschaft
Exhibit A to Deposit Agreement
THE RIGHTS OF OWNERS OF AMERICAN DEPOSITARY SHARES TO
EXERCISE RIGHTS AS BENEFICIAL OWNERS
OF ORDINARY SHARES MAY BE LIMITED OR RESTRICTED AS
DESCRIBED IN ARTICLES 16, 22 AND 23 BELOW
No.
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents one
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF DM 5 EACH OF
DIGITALE TELEKABEL AG
(INCORPORATED 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 ordinary shares (herein called
"Shares") of Digitale Telekabel AG, incorporated under
the laws of the Federal Republic of Germany (herein
called the "Company"). At the date hereof, each American
Depositary Share represents one Share which is either
deposited or subject to deposit under the deposit
agreement at the main Frankfurt, Germany offices of
Dresdner Bank AG and Deutsche Bank AG (herein collectively
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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
and its principal executive office is located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
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 December 30, 1996, as amended
and restated as of September 27, 1999 (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 this Receipt, and
subject to the terms and conditions of the Deposit
Agreement, the Owner hereof is entitled to delivery,
to him or upon his order, of the Deposited Securities
at the time represented by the American Depositary
Shares for which this Receipt is issued. Delivery of
such Deposited Securities may be made by the delivery
of (a) certificates in the name of the Owner hereof
or as ordered by him or by the delivery of certificates
properly endorsed or accompanied by proper instruments
of transfer 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 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. A Receipt surrendered for such
purposes may be required by the Depositary to be
properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary
so requires, the Owner hereof 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 at the Frankfurt, Germany office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and
to the other terms and conditions of the Deposit
Agreement, to or upon the written order of the
person or persons designated in the order delivered
to the Depositary as above provided, the amount of
Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except
that the Depositary may make delivery to such person
or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with
respect to the Deposited Securities represented by
the American Depositary Shares evidenced 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. 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.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable, without
unreasonable delay, on the books of the Depositary at
its Corporate Trust Office by the Owner hereof in person
or by a duly authorized attorney, upon surrender of
this Receipt properly endorsed for transfer or accompanied
by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses
of the Depositary and upon compliance with such regulations,
if any, as the Depositary may establish for such purpose.
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 payment from
the presentor 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 as
provided in this Receipt, may require the production
of proof satisfactory to it as to the identity and
genuineness of any signature and may also require
compliance with any regulations the Depositary
may establish consistent with the provisions of the
Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares
generally or against deposits of particular Shares
may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration
of transfer 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 law or of
any government or governmental body or commission,
or under any provision of the Deposit Agreement or
this Receipt, or for any other reason, subject to
the provisions of the following sentence. Notwithstanding
anything to the contrary in the Deposit Agreement
or this Receipt, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may not be
suspended 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, 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. Without limitation of the foregoing, the
Depositary shall not 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.
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 hereof to the Depositary.
The Depositary may, and at the request of the Company shall,
refuse to effect any transfer of this Receipt or any
withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such
payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner
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
hereof shall remain liable for any deficiency.
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.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant that
such Shares and each certificate therefor are validly
issued, fully paid, nonassessable, and free of any
pre-emptive rights of the holders of outstanding Shares
and that the person making such deposit is duly
authorized so to do. 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
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,
or such information relating to the registration on
the books of the Company or the Foreign Registrar,
if applicable, to execute such certificates and to
make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary
may (and at 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
or such representations and warranties made. If
requested by the Company, the Depositary shall
provide, in a timely manner, copies of any such proof
and certificates that it receives. No Share shall
be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary
approval has been granted by any governmental body
in Germany which is then performing the function of
the regulation of currency exchange.
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.
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 on the Share register of the
Company or Foreign Registrar and applicable to
transfers of Shares to the name of the Depositary
or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals under the Deposit
Agreement, (3) such 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 of the Deposit Agreement,
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 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
American Depositary Shares 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. PRE-RELEASE OF 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 ("Pre-Release"). 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 satisfactory
of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation
from the person to whom Receipts are to be delivered
that such person, or its customer, owns the Shares
or Receipts to be remitted, as the case may be, (b)
at all times fully collateralized with cash 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 number of American
Depositary Shares which are 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 change or disregard such limit
from time to time as it deems appropriate.
The Depositary may retain for its own account any
compensation received by it in connection with the
foregoing.
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
when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable
instrument, provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat
the person in whose name this Receipt is registered
on the books of the Depositary 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.
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 for the Receipts shall
have been appointed, countersigned by the manual or
facsimile signature of a duly authorized officer 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 at the
public reference facilities maintained by the Commission
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
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.
The Depositary will also send to Owners of Receipts
copies of such reports when furnished by the Company
pursuant to the Deposit Agreement. Any such reports
and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company
shall be furnished in English.
The Depositary will keep books 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.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or
other cash distribution on any Deposited Securities,
the Depositary will, if at the time of receipt thereof
any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable
basis into United States dollars transferable to the
United States, and subject to the Deposit Agreement,
convert such dividend or distribution into dollars
and will distribute the amount thus received to the
Owners of Receipts entitled thereto, 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, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be
reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9
of the Deposit Agreement, whenever 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 will cause the securities
or property received by it to be distributed to the
Owners of Receipts entitled thereto, in any manner
that the Depositary may deem equitable and practicable
for accomplishing such distribution; provided, however,
that if in the 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 deems such
distribution not to be feasible, the Depositary
may adopt such method as it may deem equitable and
practicable for the purpose of effecting such
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.
If any distribution 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, 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 the Deposit Agreement.
If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth
also represent the additional Shares distributed
upon the Deposited Securities represented thereby.
Notwithstanding any other provision of the Deposit
Agreement, 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 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,
if any, of any such sale after deduction of such
taxes or charges to the Owners of Receipts entitled
thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary 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 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, by sale or in any other manner that
it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed 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. 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.
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.
If at any time the Depositary shall determine that in
its judgment any foreign currency received by the
Depositary 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 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 distribute the foreign currency
(or an appropriate document evidencing the right to
receive such foreign currency) received by the Depositary
to, or in its discretion may 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 to some of
the Owners entitled thereto, the Depositary may in its
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.
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 have
discretion as to the procedure to be followed in
making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and
making the net proceeds available to such Owners or,
if by the terms of such rights offering or, for any
other reason, the Depositary may not 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.
If at the time of the offering of any rights the Depositary
determines in its discretion 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.
In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution
of warrants or other instruments in order to exercise the
rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make
such rights available to such Owner upon written notice
from the Company to the Depositary that (a) the Company
has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents
as the Company has determined in its sole discretion are
reasonably required under applicable law.
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 to exercise such rights,
upon payment by such Owner to the Depositary 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. In the case of a distribution
pursuant to the second paragraph of this Article, such
Receipts shall be legended in accordance with applicable
U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its discretion 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 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 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.
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 recognized
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.
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, the Depositary shall fix
a record date (a) for the determination of the Owners
of Receipts who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds
of the sale thereof or (ii) entitled to give instructions
for the exercise of voting rights at any such meeting,
or (b) on or after which each American Depositary
Share will represent the changed number of Shares,
subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of
Shares or other Deposited Securities, if requested
in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners
of Receipts a notice, the form of which notice shall
be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in
such notice of meeting, (b) a statement that the
Owners of Receipts as of the close of business on a
specified record date will be entitled, subject to any
applicable provision of German law and of the Articles
of Association of the Company, to instruct the Depositary
as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited
Securities represented by their respective American
Depositary Shares, and (c) a statement as to the manner
in which such instructions may be given, including an
express indication that such instructions may be
given or deemed given in accordance with the last
sentence of this paragraph if no instruction is received,
to the Depositary to give a discretionary proxy to a
person designated to the Company. Upon the written
request of an Owner of a Receipt on such record date,
received on or before the date established by the
Depositary for such purpose (the "Instruction Date"),
the Depositary shall endeavor in so far as practicable
to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by such American
Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. 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. If no instructions
are received by the Depositary from any Owner with
respect to any of the Deposited Securities represented
by the American Depositary Shares evidenced by such
Owner's Receipts on or before the date established by
the Depositary for such purpose, the Depositary shall
deem such Owner to have instructed the Depositary to
give a discretionary proxy to a person designated by
the Company with respect to such Deposited Securities
and the Depositary shall give a discretionary proxy
to a person designated by the Company to vote such
Deposited Securities; provided, that no such instruction
shall be given with respect to any matter as to which
the Company informs the Depositary (and the Company
agrees to provide such information as promptly as
practicable in writing) that (x) the Company does
not wish such proxy given, (y) substantial opposition
exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or
any Owner in particular will receive the notice described
in the preceding paragraph sufficiently prior to the
Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance
with the provisions set forth in the preceding paragraph.
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, 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 of or 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 in exchange or conversion, unless
additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary
may, and shall if the Company shall so request, execute
and deliver additional Receipts as in the case of a
dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company shall incur any
liability to any Owner or holder of any Receipt, if by
reason of any provision of any present or future law of
the United States or any other country, or of any other
governmental or regulatory authority, or by reason of
any provision, present or future, of the Articles of
Association of the Company, or by reason of any act of
God or war or other circumstances beyond its control,
the Depositary or the Company shall be prevented or
forbidden from 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 it
is provided shall be done or performed; nor shall the
Depositary or the Company 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, 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 proceeds available
to such Owners, then the Depositary shall not make
such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company
nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement
to Owners or holders of Receipts, except that they
agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or
bad faith. The Depositary shall not be subject to any
liability with respect to the validity or worth of the
Deposited Securities. Neither the Depositary nor the
Company 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 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. Neither the Depositary nor
the Company 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 holder of a Receipt,
or any other person believed by it in good faith to be
competent to give such advice or information. 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. The Depositary
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
a 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 Company agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any
Custodian against, and hold each of them harmless from,
any liability or expense (including, but not limited to,
the fees and expenses of counsel) 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 a Custodian or their
respective directors, employees, agents and affiliates,
except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by
the Company or any of its directors, employees, agents
and affiliates. The Depositary agrees to indemnify the
Company, its directors, employees, agents and affiliates
and hold them harmless from any liability or expense which
may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors,
employees, agents and affiliates due to their negligence
or bad faith. If any action or claim shall be brought or
threatened to be brought against any party in respect of
which indemnity may be sought pursuant to Section 5.8 of
the Deposit Agreement (the "indemnified party"), the
indemnified party shall, as soon as practicable (or,
in the case of any action or claim which is threatened
to be brought, as soon as practicable after such party
becomes aware of the same), notify the party against
whom indemnity may be sought (the "indemnifying party")
in writing of such action or claim, and the indemnifying
party shall be entitled to participate therein and, to the
extent that it wishes, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party;
provided however, that the indemnifying party shall not
be entitled to assume such defense if the indemnified
party reasonably objects on the ground that there may be
legal defenses available to it which are different from
or in addition to those available to the indemnifying
party; in such circumstances, and also in the event of
any action or claim being brought or threatened to be
brought against any of the parties hereto, the other
parties hereto shall provide, to the party against whom
such action or claim is brought or threatened to be
brought, such information and assistance as such party
shall reasonably request, subject always to the provisions
of the indemnity contained in Section 5.8 of the Deposit
Agreement. Each party shall to the extent reasonable
and practicable in all circumstances consult with each
of the other parties as and when reasonably requested by
such party in respect of any action or claim referred
to in Section 5.8 of the Deposit Agreement. After notice
from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action,
unless the indemnified party objects within a reasonable
period as provided above, the indemnifying party shall not
be liable to the indemnified party for any legal or other
expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying
party, in connection with any one such proceeding or separate
but substantially similar or related actions or proceedings
in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for fees and
expenses of more than one counsel for the indemnified
party (in addition to one local counsel in each such
jurisdiction). The indemnifying party shall not be
liable for any settlement of any proceeding effected
without its written consent, which consent shall not
be unreasonably withheld. The obligations set forth in
this paragraph and Section 5.8 of the Deposit Agreement
shall survive the termination of the Deposit Agreement
and the succession or substitution of any indemnified
person. No Owner or other holder of Receipts shall
have any rights under this paragraph or Section 5.8 of
the Deposit Agreement. No disclaimer of liability under
the Securities Act of 1933 is intended by any provision
of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of its election
so to do 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. Whenever the Depositary in its
discretion determines that it is in the best interest
of the Owners of Receipts to do so, it may appoint a
substitute or additional custodian or custodians.
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
without the consent of the owners or holders of outstanding
Receipts by agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or
charges (other than taxes and other governmental charges,
registration fees, 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 days after notice of such amendment shall have
been given to the Owners of outstanding Receipts. Every
Owner 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 therefor the Deposited Securities represented
thereby 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 90 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 90 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, will be entitled to
delivery, to him or upon his order, of the amount of
Deposited 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 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
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 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). 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
with respect to indemnification, charges, and expenses.
22. DISCLOSURE OF INTERESTS.
To the extent that provisions of or governing any
Deposited Securities may require the disclosure of
beneficial or other ownership of Deposited Securities,
other Shares and other securities to the Company and
may provide for blocking transfer and voting or other
rights to enforce such disclosure or limit such ownership,
the Depositary shall use its reasonable efforts to comply
with Company instructions as to Receipts in respect of any
such limitation or blocking of rights and Owners shall
comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's
compliance with such Company instructions and are deemed
by their holding of Receipts to consent to any such
limitation or blocking of rights.
23. COMPLIANCE WITH GERMAN LAW.
Each Owner agrees that such Owner is bound by and subject
to German law and the Satzung of the Company as if such
Owner were a holder of Shares, and each Owner agrees to
comply with the provision of German law requiring such
Owner to disclose within a prescribed period of time an
interest in Shares in excess of 25% of such Shares
outstanding, and/or such other percentage as may be
required from time to time pursuant to any provision
of German law, the Satzung of the Company or otherwise.
Each Owner acknowledges that failure by an Owner to
provide on a timely basis any such required notification
of such Owner's interest in Shares may result in the
withholding of certain rights in respect of such Owner's
American Depositary Shares including, without limitation,
voting rights and the right to receive dividends or other
payments in respect of the Shares represented by such
American Depositary Shares.
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 permit the withdrawal or
delivery of Deposited Securities in a manner which would
violate the U.S. securities laws, including, but not
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.
- 18 -
Exhibit A
