SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES
EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT")
SAP AKTIENGESELLSCHAFT SYSTEME,
ANWENDUNGEN, PRODUKTE IN DER DATENVERARBEITUNG
(Exact name of registrant specified in Charter)
SAP CORPORATION SYSTEMS,
APPLICATIONS AND PRODUCTS IN DATA PROCESSING
(Translation of Registrant's name into English)
FEDERAL REPUBLIC OF GERMANY NOT APPLICABLE (State of Incorporation or Organization) (I.R.S. Employer Identification No.) NEUROTTSTRASSE 16 NOT APPLICABLE 69190 WALLDORF (Zip Code) FEDERAL REPUBLIC OF GERMANY (Address of Principal Executive Offices) If this form relates to the If this form relates to the registration of a class of registration of a class of securities pursuant to Section securities pursuant to Section 12(b) of the Exchange Act and is 12(g) of the Exchange Act and is effective pursuant to General effective pursuant to General Instruction A. (c), please check Instruction A. (d), please check the following box. [X] the following box. [ ] |
Securities Act registration statement file number to which this form
relates:_____ (If applicable)
Securities to be registered pursuant to Section 12(b) of the Exchange Act:
Title of Each Class Name of Each Exchange on Which
To be so Registered Each Class is to be Registered
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ORDINARY SHARES WITHOUT NOMINAL VALUE NEW YORK STOCK EXCHANGE(1)
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Securities to be registered pursuant to Section 12(g) of the Exchange Act:
Title of Each Class Name of Each Exchange on Which To be so Registered Each Class is to be Registered ------------------- ------------------------------ None |
(1) Application made for listing, not for trading pursuant to the requirements of the United States Securities and Exchange Commission.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
INTRODUCTION
SAP Aktiengesellschaft Systeme, Anwendungen, Produkte in der Datenverarbeitung (the "Company") believes that simplifying its current share structure by converting its outstanding non-voting preference shares without nominal value (the "Preference Shares") into ordinary shares without nominal value ("Ordinary Shares") will increase its transparency and the liquidity of its shares. Accordingly, on May 3, 2001, at the annual general shareholders meeting, the holders of the Company's Ordinary Shares approved amendments to the Company's Articles of Association (Satzung) permitting this conversion at a ratio of one Ordinary Share for each outstanding Preference Share. The holders of Preference Shares also approved these amendments at a special meeting of holders of Preference Shares on the same day.
The conversion will become effective, and all Preference Shares will be converted automatically, once the shareholder resolutions approving it are entered into the German commercial register (Handelsregister) at the court of Heidelberg, which is expected to occur in June 2001. The following description assumes the effectiveness of the conversion.
CAPITAL STOCK
The Company's authorized, issued and outstanding share capital consists of Ordinary Shares. The Company is also authorized to issue Preference Shares in limited circumstances, as described in paragraphs (6) and (7) below. Its issued share capital (Grundkapital) currently amounts to EUR 314,714,655, consisting of 314,714,655 Ordinary Shares. All issued Ordinary Shares are in bearer form.
Generally, the Company's share capital may be increased and the Company may issue new shares in consideration of share capital contributions in cash or other property upon prior approval of the holders of Ordinary Shares at a general shareholders' meeting. In order for the Company to issue new Ordinary Shares for a contribution in cash or kind, a resolution approving the increase must be passed by the holders of three-fourths of the Ordinary Shares present or represented at the annual general shareholders' meeting scheduled to vote on the subject.
The Company's Articles of Association provide for the following capital increases and issuances of Ordinary Shares:
(1) A conditional increase of the Company's share capital of up to EUR 1,032,495 (Contingent Capital IIa or Bedingtes Kapital IIa), pursuant to which the share capital increase will become effective and Ordinary Shares will be issued, if and to the extent that the holders of the bonds the Company issued in 1994 to executives and employees (the "1994 Bonds") exercise their conversion rights.
(2) Additional authorized share capital of up to EUR 60,000,000 (Authorized Capital I or Genehmigtes Kapital I), pursuant to which the Executive Board of the Company with the consent of the Supervisory Board of the Company may issue Ordinary Shares in exchange for cash contributions from existing shareholders.
(3) A conditional increase in the Company's share capital of up to EUR 7,376,311 (Contingent Capital IIIa or Bedingtes Kapital IIIa), pursuant to which the share capital increase will become effective and Ordinary Shares will be issued, if and to the extent that the holders of convertible bonds and stock options issued on or before March 16, 2001 in connection with the Company's "2000 Long Term Incentive Plan" for members of the Executive Board and other executives exercise their conversion and subscription rights and the Company does not satisfy those rights from shares owned by the Company.
(4) Additional capital of up to EUR 60,000,000 (Authorized Capital II or Genehmigtes Kapital II), pursuant to which the Executive Board with the consent of the Supervisory Board may issue Ordinary Shares against contributions in cash or for shares in the context of the acquisition of another enterprise in whole or in part.
(5) A conditional increase in the Company's share capital of up to EUR 25,000,000 (Contingent Capital IV or Bedingtes Kapital IV), pursuant to which such share capital increase will become effective and Ordinary Shares will be issued, if and to the extent holders of warrants or conversion rights attaching to bonds with detachable warrants or to convertible bonds issued or guaranteed by the Company or its wholly-owned direct or indirect affiliates exercise such rights on or before May 1, 2006.
(6) A conditional increase of the Company's share capital of up to EUR 1,032,495 (Contingent Capital II or Bedingtes Kapital II), pursuant to which such share capital increase will become effective and Preference Shares will be issued, if and to the extent that the holders of the 1994 Bonds are entitled to convert their 1994 Bonds to Preference Shares and actually exercise those conversion rights.
(7) A conditional increase in the Company's share capital of up to EUR 7,376,311 (Contingent Capital III or Bedingtes Kapital III), pursuant to which such share capital increase will become effective and Preference Shares will be issued, if and to the extent that (a) the holders of convertible bonds and stock options issued in 2000 and 2001 in connection with the Company's "2000 Long Term Incentive Plan" for members of the Executive Board and other executives are entitled to conversion and subscription rights in respect of Preference Shares, (b) those holders actually exercise
their conversion and subscription rights, and (c) the Company does not satisfy those rights from shares owned by the Company.
(8) A conditional increase in the Company's share capital of up to EUR 9,978,199 (Contingent Capital V or Bedingtes Kapital V), pursuant to which such share capital increase will become effective and Ordinary Shares will be issued, if and to the extent that the holders of convertible bonds and stock options issued in 2000 and 2001 in connection with the Company's "2000 Long Term Incentive Plan" exercise their conversion and subscription rights by December 31, 2004 and the Company does not satisfy those rights from shares owned by the Company.
The Company no longer has Contingent Capital I because the shares reserved under that category were all issued prior to 2000.
PREFERENCE SHARES
The Company does not intend to issue any Preference Shares. However, the Company has outstanding convertible bonds and stock options which carry conversion rights in respect of Preference Shares. The Company will issue to the holders of those convertible bonds and stock options Ordinary Shares in lieu of Preference Shares upon exercise of their conversion rights and options. As a precautionary measure, however, the Company maintains its Contingent Capital II and III, described above, for any new issuances of Preference Shares to these holders.
VOTING RIGHTS; SHAREHOLDER MEETINGS
Each Ordinary Share entitles its holder to one vote. Resolutions are passed at a general meeting of the holders of Ordinary Shares of the Company by a majority of the votes cast, except that the following significant resolutions, among others, require the affirmative vote of the holders of three-fourths of the Ordinary Shares present or represented at a general shareholders meeting:
(1) Amendment of the Company's Articles of Association;
(2) Capital increases;
(3) Capital decreases;
(4) Elimination of preemptive rights;
(5) Execution, termination or amendment of intercompany agreements;
(6) Change of the Company's corporate form;
(7) Dissolution of the Company;
(8) Merger into or consolidation of the Company with another stock corporation; and
(9) Transfer of all of the Company's assets.
A general meeting of the shareholders of the Company may be called by the Executive Board (Vorstand), the Supervisory Board (Aufsichtsrat) or by shareholders holding in the aggregate at least 5% of the Company's capital stock. The right to attend and vote at a shareholders' meeting is only accorded to those shareholders who deposit their shares with the Company, at another place specified in the notice of the meeting, or with a German notary public during normal
business hours. The shares must be deposited at least seven days before the date of the general meeting. Shares are also deemed to have been validly deposited if, with the consent of and on behalf of a depositary, they are blocked in the bank account in which they are held until the end of the general meeting. In the event that the shares are deposited with a German notary public, the original depositary receipt issued by the notary or a certified copy thereof must be provided to the Company by the day following the deposit deadline. Voting rights may be exercised by proxy.
Notice of shareholder meetings must be published in the German Federal Gazette (Bundesanzeiger) at least one month prior to the last day on which the shares may be deposited. The notice must advise shareholders of the conditions that govern attendance at the meeting and the exercise of voting rights. Although notice of each shareholder meeting (whether the annual general meeting or a special meeting) is required to be given as described above, neither the German Stock Corporation Act nor the Articles of Association have any minimum quorum requirement applicable to shareholder meetings.
There are no limitations on the right of nonresident or foreign Holders to own or vote shares imposed by German law or the Company's Articles of Association.
DIVIDEND AND LIQUIDATION RIGHTS; ANNUAL FINANCIAL STATEMENTS
Dividends may be declared at the annual general meeting of shareholders, which must be held within the eight months following the end of a fiscal year, and are paid once a year.
The Company's annual financial statements are deemed to have been approved upon their acceptance by the Supervisory Board, unless the Executive Board and the Supervisory Board resolve that the shareholders shall approve the financial statements at their annual general meeting. The Supervisory Board and the Executive Board recommend the disposition of any net retained profits, including the amount of net profits of the Company to be distributed by way of dividend among the shareholders, to the extent that the shareholders do not specify any other use by action at the annual general meeting.
In accordance with the German Stock Corporation Act, upon a liquidation of the Company, any liquidation proceeds remaining after payment of all of the Company's liabilities would be distributed among the shareholders in proportion to the number of shares held.
PREEMPTIVE RIGHTS
Under the German Stock Corporation Act, a shareholder has a preferential right to subscribe for any issue of shares, debt instruments convertible into shares and participating debt instruments in proportion to the shares of the existing capital stock held by the shareholder. The German Stock Corporation Act provides that this preferential right can only be eliminated by the shareholders in the resolution authorizing the capital increase. The affirmative vote of the holders of at least three-quarters of the Ordinary Shares present or represented at a shareholder meeting is required to approve the elimination of preemptive rights with respect to a particular capital increase.
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
American Depositary Shares ("ADSs") representing Ordinary Shares will be evidenced by American Depositary Receipts ("ADRs") and will be issuable pursuant to a Deposit Agreement among the Company, The Bank of New York, as depositary (the "Depositary"), and the owners and holders of ADRs (the "Deposit Agreement"). As used herein, "ADR Owner" means the person in whose name an ADR is registered on the books of the Depositary, and "ADR Holder" means any person who has a beneficial interest in any ADR or ADS. The following is a summary of material provisions of the Deposit Agreement. Copies of the Deposit Agreement will be available for inspection at the Corporate Trust Office of the Depositary, currently located at 101 Barclay Street, New York, New York 10286. The Depositary's principal executive office is located at One Wall Street, New York, New York 10286.
AMERICAN DEPOSITARY RECEIPTS
ADRs evidencing ADSs will be executed and delivered by the Depositary pursuant to the Deposit Agreement. Each ADS represents one fourth of one Ordinary Share, or evidences the right to receive one fourth of one Ordinary Share. The Ordinary Shares represented by the ADSs will be held in the account of the Depository at the Frankfurt/Main office of DG Bank Deutsche Genossenschaftsbank AG, Dresdner Bank AG or Deutsche Bank AG, each as custodian and agent of the Depositary (the "Custodian") or at Clearstream International, and are, together with any additional Ordinary Shares at any time deposited or deemed deposited under the Deposit Agreement and any and all other securities and/or cash received by the Depositary or the Custodian in respect or in lieu of such Ordinary Shares, considered as the "Deposited Securities". Only persons in whose names ADRs are registered on the register of the Depositary will be treated by the Depositary and the Company as owners of such ADRs.
ADSs represent Ordinary Shares in bearer form. Pursuant to the terms of the Deposit Agreement and under German law, ADR Owners and ADR Holders are subject to any applicable disclosure requirements regarding acquisition and ownership of Ordinary Shares that are applicable to Ordinary Shares under German law. Failure to comply with these disclosure requirements may result in the withholding of certain rights, including voting, dividend and other rights relating to Deposited Securities for so long as such failure continues. In order to facilitate compliance with these notification requirements, an ADR Owner or ADR Holder may deliver such notification to the Depositary with respect to Ordinary Shares represented by ADSs and the Depositary shall, as soon as practicable thereafter, forward such notification to the Company.
DEPOSIT, TRANSFER AND WITHDRAWAL OF ORDINARY SHARES AND ISSUANCE OF ADRS
Upon deposit with the Custodian of Ordinary Shares or evidence of rights to receive Ordinary Shares, accompanied by any appropriate instruments of transfer or endorsement, and any dividend coupons for dividends to be paid in the future or rights to receive in the future such dividend coupons, if any, and upon payment of applicable fees, taxes and other charges, the Depositary will, subject to the terms of the Deposit Agreement, execute and deliver an ADR or ADRs registered in the name of the person depositing such Ordinary Shares or as directed by such person for the number of ADSs representing such deposited Ordinary Shares. Each deposit
of Ordinary Shares will be accompanied by evidence satisfactory to the Depositary that all conditions to such deposit under German law have been satisfied and that all necessary German governmental approvals have been granted and, if required by the Depositary, an agreement or assignment, or other instrument satisfactory to the Depositary which will provide for the prompt transfer to the Custodian of any dividend, right to subscribe for additional Ordinary Shares or any other securities or right to receive other property or right to vote which the person depositing Ordinary Shares may thereafter receive.
Upon surrender of ADRs at the Corporate Trust Office of the Depositary for the purpose of withdrawal of the Ordinary Shares represented by the ADSs evidenced thereby, and upon payment of the fees of the Depositary and all taxes and governmental charges, if any, payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of the Deposit Agreement and the Articles of Association, the Deposited Securities and applicable law, ADR Owners are entitled to due assignment, transfer and delivery of all right, title, legal ownership and interest, of such whole number of Deposited Securities requested to be withdrawn at the time represented by the ADS or ADSs evidenced by such ADR through the facilities of Clearstream International or Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear"), or in the form of certificated Ordinary Shares and delivery to the ADR Owner or as ordered by it of any other securities, property and cash to which such ADR Owner is entitled in respect of the ADRs surrendered and a new ADR for the number of ADSs representing any fractional Deposited Securities and any Deposited Securities not being withdrawn, except that the Depositary may deliver any dividends or distributions with respect to the Ordinary Shares represented by the ADSs or any proceeds of sale of any dividends, distributions or rights, which may at the time be held by the Depositary at its Corporate Trust Office.
PRE-RELEASES
Subject to the terms and conditions of the Deposit Agreement and any limitations established by the Depositary, unless requested by the Company to cease doing so, the Depositary may execute and deliver ADRs prior to the receipt of Ordinary Shares (a "Pre-Release"), may deliver Ordinary Shares upon the receipt and cancellation of ADRs 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 ADR has been Pre-Released, and may receive ADRs in lieu of Ordinary Shares in satisfaction of a Pre-Release of ADRs. In no event will the Depositary deliver Ordinary Shares prior to the receipt and cancellation of ADRs for Ordinary Shares. Each Pre-Release must be (1) preceded or accompanied by a written representation and agreement from the person to whom the ADRs are to be delivered (the "Pre-Releasee") that such Pre-Releasee, or its customer, (a) owns the Ordinary Shares or ADRs to be remitted, as the case may be, (b) assigns all beneficial right, title and interest in such Ordinary Shares or ADRs to the Depositary for the benefit of the owners of the ADRs, and (c) will not take any action with respect to such Ordinary Shares or ADRs, as the case may be, that is inconsistent with the transfer of beneficial ownership (including, without the consent of the Depositary, disposing of such Ordinary Shares or ADRs, as the case may be), other than in satisfaction of such Pre-Release, (2) at all times fully
collateralized with cash, government securities or such other collateral as the Depositary determines in good faith, will provide substantially similar liquidity and security, (3) terminable by the Depositary on not more than five business days' notice, and (4) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Company will not incur any liability to any ADR Owner or ADR Holder with respect to any representations, actions or omissions by the Depositary or any of its agents in connection with any Pre-Release transaction.
The Depositary will also set dollar limits with respect to Pre-Release transactions to be entered into under the Deposit Agreement with any Pre-Releasee on a case-by-case basis, as the Depositary deems appropriate. The collateral referred to in clause (2) 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 Ordinary Shares or ADRs upon termination of a Pre-Release transaction (and shall not, for the avoidance of doubt, constitute Deposited Securities under the Deposit Agreement). The number of Ordinary Shares not deposited but represented by ADRs outstanding at any time as a result of Pre-Releases will not normally exceed 30% of the Ordinary Shares deposited under the Deposit Agreement; provided, however, that the Depositary reserves the right to disregard such limits from time to time as it reasonably deems appropriate. 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 ADR Holder or ADR Owner with respect to any representations, actions or omissions by the Depositary, or any of its agents, pursuant to the section of the Deposit Agreement regarding Pre-Releases.
DIVIDENDS, OTHER DISTRIBUTIONS AND RIGHTS
Whenever the Depositary, or, on its behalf, its agent, receives any cash dividend or other cash distribution on any Deposited Securities, which dividend or distribution is denominated in currency ("Foreign Currency") other than United States dollars ("Dollars"), the Depositary will, or will cause its agent, as promptly as practicable after receipt of such dividend or distribution, to, convert, by sale or in any other manner that it may determine, such Foreign Currency into Dollars; provided, however, that such Foreign Currency can, in the reasonable judgment of the Depositary, be converted on a reasonable basis into Dollars transferable to the United States. Upon conversion, the amount received and subsequently converted will be distributed as promptly as practicable (net of expenses incurred by the Depositary in converting such Foreign Currency) to the ADR Owners entitled thereto, in proportion to the number of ADSs representing Deposited Securities evidenced by ADRs held by them respectively. The amount distributed will be reduced by any amounts required to be withheld by the Company or the Depositary, including amounts on account of any applicable taxes and certain other expenses. If the Depositary determines in its judgement that any Foreign Currency received by it cannot be so converted on a reasonable basis into Dollars transferable to the United States, or if any approval or license necessary for 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 discretion distribute such Foreign Currency received by the Depositary to, or may hold such Foreign Currency uninvested and without liability for interest for the respective accounts of, the ADR Owners entitled to receive the same. If any such conversion of Foreign Currency cannot be effected for distribution in Dollars to some of the ADR Owners entitled thereto, the Depositary may in its discretion make such conversion and distribution in Dollars to the extent permissible to the ADR Owners entitled thereto, and may distribute the balance of the Foreign Currency
received by it to, or hold such balance uninvested for the respective accounts of, the ADR Owners entitled thereto.
If the Company declares a dividend in, or free distribution of, additional Ordinary Shares, upon receipt by or on behalf of the Depositary of additional Ordinary Shares, the Depositary may, and upon the request of the Company will, distribute to ADR Owners entitled thereto, in proportion to the number of ADSs representing Deposited Securities evidenced by ADRs held by them respectively, additional ADRs for an aggregate number of ADSs representing the number of Ordinary Shares so received as such dividend or free distribution, in each case subject to the terms and conditions of the Deposit Agreement, including the withholding of taxes or any other governmental charges and the payment of fees required under the Deposit Agreement. If such adjustments in the record of the Depositary are not made or additional ADRs are not so issued, each ADS shall thereafter also represent the additional securities distributed in respect of the Ordinary Shares represented by such ADS prior to such dividend or free distribution. In lieu of delivering ADRs for fractional ADSs in the event of any such distribution, the Depositary will sell the amount of Ordinary Shares represented by the aggregate of such fractions and will distribute the net proceeds, converted into Dollars if in a Foreign Currency, to ADR Owners in accordance with the terms and conditions of the Deposit Agreement. The Depositary may withhold any such distribution of ADSs or ADRs if it has not received satisfactory assurances from the Company that such distribution does not require registration under the United States Securities Act of 1933, as amended (the "Securities Act") or is exempt from registration under the provisions of the Securities Act. If for any reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such Ordinary Shares must be registered under the Securities Act in order to be distributed to ADR Owners or ADR Holders) the Depositary determines that it is not lawful and feasible to make a distribution of Ordinary Shares to all ADR Owners or to certain ADR Owners, the Depositary may adopt such method as it may deem lawful, equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the Ordinary Shares thus received, or any part thereof, and the net cash proceeds of any such sale will be distributed by the Depositary to the ADR Owners entitled thereto as in the case of a distribution received in cash.
If the Company offers, or causes to be offered, to the owners of Deposited Securities any rights to subscribe for additional Ordinary Shares or any rights of any other nature, the Depositary will, following consultation with the Company as to the procedure to be followed, (1) make such rights available to ADR Owners, (2) dispose of such rights on behalf of any ADR Owners and make the net proceeds available in Dollars to such ADR Owners, or (3) allow the rights to lapse if, by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any ADR Owner or dispose of such rights and make the proceeds available to such ADR Owners. If at the time of the rights offering the Depositary, following consultation with the Company, determines it to be lawful and feasible to make such rights available to all or to certain but not to other ADR Owners, the Depositary may make such rights available to such ADR Owners to whom it determines such distribution, following consultation with the Company, to be lawful and feasible through the distribution in proportion to the number of ADSs evidenced by ADRs held by such ADR Owners, of rights, warrants or other instruments therefor in such form and upon such terms and representations as it may determine. If the Depositary determines, following consultation with the Company, that it is not lawful or feasible
to make such rights available to all or certain ADR Owners, it may sell the warrants or other instruments and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in 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), converted into Dollars if in a Foreign Currency, for the account of such ADR Owners otherwise entitled to such rights, warrants or other instruments as in the case of a distribution received in cash, upon an averaged or other practical basis without regard to any distinctions among such ADR Owners because of exchange restrictions or the date of delivery of any ADR or otherwise.
The Depositary will not offer rights to ADR Owners unless both the rights and the securities to which such rights relate either are exempt from registration under the Securities Act with respect to a distribution to all ADR Owners or are registered under the provisions of the Securities Act. If an ADR Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act, the Depositary will not effect such distribution unless it has received an opinion from counsel in the United States for the Company upon which it may rely that such distribution to such ADR Owner is exempt from such registration. The Depositary will not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to ADR Owners in general or any ADR Owner in particular.
If the Depositary has distributed warrants or other instruments for rights to all or certain ADR Owners, then upon instruction of such ADR Owner pursuant to such warrants or other instruments to the Depositary to exercise such rights, upon payment by such ADR Owner to the Depositary for the account of such ADR Owner of an amount equal to the purchase price of the Ordinary Shares receivable upon exercise of such rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such ADR Owner, exercise the rights and purchase the Ordinary Shares, and the Company will cause the delivery of such Ordinary Shares to the Depositary on behalf of such ADR Owner. As agent for such ADR Owner, the Depositary will cause such Ordinary Shares to be deposited as described above and execute and deliver ADRs to such ADR Owner as described above. See "-- Description of American Depositary Shares -- Deposit and Withdrawal of Shares and Issuance of Receipts."
Whenever the Custodian or the Depositary will receive any distribution other than cash, Ordinary Shares or rights in respect of the Ordinary Shares, the Depositary shall, as promptly as practicable, cause the securities or property received by it or the Custodian to be distributed to the ADR Owners entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary or any taxes or other governmental charges, in proportion to their holdings, respectively, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution; provided, however, that if the Company so directs or in the reasonable opinion of the Depositary such distribution cannot be made proportionately among the ADR Owners entitled thereto, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act in order to be distributed to ADR Owners) the Depositary deems such distribution to all or certain ADR Owners not to be lawful or feasible, the Depositary may adopt such method as it may reasonably deem lawful, equitable and practicable for the
purpose of effecting such distribution, including the sale (public or private) of the securities or property thus received, or any part thereof, and the net cash proceeds of any such sale will be distributed by the Depositary to the ADR Owners 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 distributed to ADR Owners as provided in this paragraph, each ADS shall thereafter also represent the additional securities or property distributed in respect of the Ordinary Shares represented by such ADS prior to such distribution.
If the Depositary determines that any distribution of property (including Ordinary Shares and rights to subscribe therefor) is subject to any taxes or governmental charges that the Depositary is obliged to withhold, the Depositary may, by public or private sale, dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes or governmental charges, and thereafter will distribute the net proceeds of any such sale after deduction of such taxes or governmental charges to the ADR Owners entitled thereto in proportion to the number of ADRs held by them respectively. Upon any change in nominal or par value, any split-up, consolidation or 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 that shall be received by the Depositary or the Custodian in exchange for, in conversion of or in respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit Agreement, and ADSs shall thereafter represent the new securities so received in exchange or conversion, unless additional ADSs are issued. In any such case the Depositary may, and upon the request of the Company shall, execute and deliver additional ADRs as in the case of a distribution in Ordinary Shares, or call for the surrender of outstanding ADRs to be exchanged for new ADRs specifically describing such new Deposited Securities. In the event that any securities so received may not be lawfully distributed to some or all ADR Owners, the Depositary may and, if the Company so requests, shall sell such securities at a public or private sale and allocate the net proceeds of such sale for the account of the ADR Owners otherwise entitled to such securities upon an averaged or other practicable basis without regard to any distinctions among such ADR Owners and distribute the net proceeds so allocated to the extent practicable as in the case of a distribution received in cash.
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 Ordinary Shares that are represented by each ADS, or whenever the Depositary shall receive notice of any meeting of holders of Ordinary Shares or other Deposited Securities, or whenever the Depositary finds that it is 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 Ordinary Shares or other Deposited Securities, as the case may be, or as close thereto as practicable, after consultation with the Company, (1) for the determination of the ADR Owners who shall be (a) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof or (b) entitled to exercise, or give instructions for the exercise of, voting rights at any such meeting,
or (2) for fixing the date on or after which each ADS will represent the changed number of Ordinary Shares.
VOTING OF DEPOSITED SECURITIES
Upon receipt of (1) notice from the Company of any meeting of holders of Ordinary Shares or other Deposited Securities (the "Notice"), (2) 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 Ordinary Shares represented by ADSs 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 Ordinary Shares represented by ADSs, together with an English translation thereof (the "Recommendation"), unless otherwise requested by the Company, the Depositary shall, as soon as practicable thereafter, mail to all ADR Owners a notice containing (a) such information as is contained in the notice of such meeting sent by the Company to the Depositary, (b) a statement that each ADR Owner and Holder ("Voters") at the close of business on a specified record date will be entitled, subject to any applicable provisions of German law, the Articles of Association, the ADRs 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 Ordinary Shares or other Deposited Securities evidenced by such ADR Owner's ADSs, (3) the Recommendation, and (4) 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 the Deposit Agreement (the "Instruction Date"), then the Holders shall in each case be deemed to have instructed the Depositary to vote the shares or cause the shares to be voted in accordance with the Recommendation. See "-- Description of Ordinary Shares -- Voting Rights."
Pursuant to the terms of the Deposit Agreement, and under German law, holders and beneficial owners of ADRs will be subject to any disclosure requirements regarding acquisition and ownership of Ordinary Shares as are applicable to Ordinary Shares pursuant to the terms of the Articles of Association of the Company or German law, as each may be amended from time to time. Failure to comply with such disclosure requirements will, for so long as such failure continues, disqualify such ADR Owner from exercising voting rights.
Each ADR Owner 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 (1) either (a) authorizes such Voter's ADSs to be delivered to a blocked account established for such purpose at the Depository Trust Company ("DTC") (as provided below), or (b) instructs the Depositary to block the Ordinary Shares without delivering the ADSs to the Depositary, or (2) instructs the Depositary as to how the whole number of Ordinary Shares or other Deposited Securities represented by the ADSs evidenced by such ADRs 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 will endeavor, insofar as practicable and permitted under
German law, the Articles of Association and the ADRs, to vote or cause to be voted the amount of Ordinary Shares or other Deposited Securities so represented 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 four ADSs, or integral multiples thereof. The Depositary will not vote or attempt to exercise the right to vote that attaches to the Ordinary 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.
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 ADSs evidenced by such ADRs on or before the Instruction Date, such Voter shall be deemed, and the Depositary shall deem such Holder, 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 Ordinary Shares or other Deposited Securities.
Anything in the Deposit Agreement to the contrary notwithstanding, in the event that the Proxy Bank shall fail to supply the Recommendation to the Depositary at least 21 calendar days prior to any meeting of holders of Ordinary Shares represented by ADSs 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 ADSs evidenced by such ADRs, no votes shall be cast at such meeting with respect to such Deposited Securities.
Nothing in the 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.
REPORTS AND NOTICES
The Depositary will make available for inspection by ADR Owners at its Corporate Trust Office any reports, notices and other communications, including any proxy soliciting material, received from the Company, which are both (1) received by the Depositary as the holder of the Deposited Securities, and (2) made generally available to the holders of Deposited Securities by the Company. The Depositary will also send to ADR Owners 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 only to the extent that such materials are required to be translated into English pursuant to any regulations of the United States Securities and Exchange Commission ("SEC").
DISCLOSURE OF INTERESTS
To the extent that provisions of, or governing, any Deposited Securities (including the Articles of Association or applicable law) may require disclosure of beneficial or other ownership of Deposited Securities, other Ordinary Shares or other securities and may provide for blocking voting or other rights to enforce such disclosure or limits, ADR Owners and ADR Holders agree to comply with all such disclosure requirements. The Depositary agrees to comply with all applicable laws.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of the ADRs and any provision 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 they may deem necessary or desirable without the consent of the ADR Owners or ADR Holders. Any amendment that imposes or increases 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 that otherwise prejudices any substantial existing right of ADR Owners will not take effect as to the outstanding ADRs until the expiration of 30 days after notice of such amendment has been given to the ADR Owners. Every ADR Owner and ADR Holder at the time such amendment becomes effective will be deemed, by continuing to hold such ADR, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of any ADR Owner to surrender its ADRs and receive therefor the Deposited Securities evidenced thereby, except in order to comply with mandatory provisions of applicable law.
The Depositary may at any time, at the direction of the Company, terminate the Deposit Agreement by mailing notice of such termination to all ADR Owners of ADRs 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 ADR Owners if, at any time 30 days after the Depositary shall have delivered to the Company a notice of its election to resign, a successor depositary shall not have been appointed and accepted its appointment as provided in the Deposit Agreement. On and after the termination date, the ADR Owner will, upon (1) surrender of the ADR to the Depositary, (2) payment of the Depositary's fee for surrender of ADRs, and (3) payment of any applicable taxes or governmental charges, be entitled to delivery of the amount of Deposited Securities represented by the ADSs evidenced by such ADR.
If any ADRs remain outstanding after the date of termination, the Depositary thereafter will discontinue the registration of transfers of ADRs subject to the Deposit Agreement, will suspend the distribution of dividends and other distributions to the holders thereof and will not give any further notice or perform any further acts under such Deposit Agreement, except that the Depositary shall continue (1) the collection of dividends and other distributions pertaining to the
Deposited Securities, (2) the sale of rights and other property as provided in the Deposit Agreement, and (3) the delivery of 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 ADRs surrendered to the Depositary, subject to the applicable terms of the Deposit Agreement, including the payment of the fees and other charges of the Depositary.
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 under the Deposit Agreement, unsegregated and without liability for interest, for the pro rata benefit of the owners of ADRs that have not theretofore been surrendered, such ADR 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 net proceeds and other cash and its obligations to the Company regarding indemnification under the Deposit Agreement. Upon termination of the Deposit Agreement, the Company shall be discharged from all obligations thereunder, except for certain obligations to the Depositary.
CHARGES OF DEPOSITARY
Subject to the applicable law and the regulations of any exchange upon which the ADSs are listed, the following charges, as applicable, shall be incurred by any party depositing or withdrawing Ordinary Shares or by any party surrendering ADRs or to whom ADRs are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company, an exchange of stock regarding the ADRs or Deposited Securities, or a distribution of ADRs pursuant to the Deposit Agreement):
(1) Taxes and other governmental charges.
(2) Registration fees as may from time to time be in effect for the registration of transfer of Ordinary Shares generally applicable to the transfer of Ordinary Shares to the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals of Ordinary Shares pursuant to the Deposit Agreement.
(3) Such air courier, cable, telex and facsimile transmission expenses as are expressly provided in the Deposit Agreement.
(4) Expenses as are incurred by the Depositary in the conversion of Foreign Currency pursuant to the Deposit Agreement.
(5) A fee not in excess of US$5.00 per 100 ADSs (or portion thereof) for the execution and delivery of ADRs pursuant to the Deposit Agreement and the surrender of ADRs pursuant to the Deposit Agreement.
(6) A fee not in excess of US$0.02 per ADS (or portion thereof) for any cash distribution made pursuant to the Deposit Agreement except for any distribution of cash dividends.
(7) A fee for the distribution of securities pursuant to the Deposit Agreement in an amount equal to the fee for the execution and delivery of ADRs which would have been charged as a result of the deposit of such securities but which securities are instead distributed to ADR Owners.
LIABILITY OF ADR OWNERS OR ADR HOLDERS FOR TAXES OR OTHER CHARGES
If any tax or other governmental charge shall become payable with respect to any ADR or any Deposited Securities represented by the ADSs evidenced by any ADR, such tax or other governmental charge shall be payable by the ADR Owner or ADR Holder. The Depositary may and at the request of the Company shall refuse to effect any transfer of such ADR (or any split-up or combination thereof) or any withdrawal of the Deposited Securities represented by the ADSs evidenced by such ADRs until such payment is made, and may withhold any dividends or other distributions or may sell for the account of the beneficial owner thereof any part or all of the Deposited Securities represented by the ADSs evidenced by such ADRs and may apply such dividends or other distributions or the proceeds of any such sale in payment of any such tax or other governmental charge. The ADR Owner or ADR Holder shall remain liable for any deficiency.
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.
LIMITATIONS ON EXECUTION, DELIVERY, TRANSFER AND SURRENDER OF ADRs
The ADRs are transferable on the books of the Depositary, and the Depositary may close the transfer books, at any time and from time to time, when transfer agents in New York City generally close their transfer books or when deemed expedient by it or at the request of the Company. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination or surrender of any Deposited Securities, or withdrawal of any Deposited Securities, the Depositary, or the Custodian or Registrar may require (1) payment from the person presenting the ADR or the depositor of such Ordinary Shares of an amount sufficient to reimburse it for any tax or other governmental charge and, if applicable, any stock transfer or registration fee with respect thereto and payment of any applicable fees payable to the Depositary pursuant to the Deposit Agreement, (2) the production of proof satisfactory to it as to the identity and genuineness of any signature, and (3) compliance with such regulations as the Depositary may establish consistent with the provisions of the Deposit Agreement. The execution and delivery or transfer of ADRs generally may be suspended during any period when the transfer books of the Depositary are closed or if 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 or applicable law or any government or governmental body or commission, or under any provisions of the Deposit Agreement or the Articles of Association of the Company, or for any other reason, subject to the provisions of the following sentence.
Notwithstanding any other provision of the Deposit Agreement or the ADRs, the
surrender of outstanding ADRs and withdrawal of Deposited Securities may not be
suspended subject only to (1) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Ordinary Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(2) the payment of fees, taxes and similar charges, and (3) compliance with any
United States or foreign laws or governmental regulations relating to the ADRs
or to the withdrawal of the Deposited Securities.
GENERAL
None of the Depositary, the Company or any of their respective officers, directors, employees, agents or affiliates will be liable to any ADR Owner or other person if by reason of any provision of any present or future law or regulation of the United States, Germany or any other country, or of any other governmental 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 any securities issued or distributed by the Company or any offering or distribution thereof, or by reason of any act of God or war or other circumstance beyond its control, the Depositary, the Company or any of their respective directors, employees, agents or affiliates shall be prevented, delayed 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 or the Deposited Securities it is provided shall be done or performed; nor will the Depositary, the Company or any of their respective officers, directors, employees, agents or affiliates incur any liability to any ADR Owner or ADR Holder by reason of any nonperformance or delay, caused as stated in the preceding clause, 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 by the Deposit Agreement.
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 or information from legal counsel, accountants, any person presenting Ordinary Shares for deposit, any ADR Owner or ADR Holder or any other person believed by it in good faith to be competent to give such advice or information. The obligations of the Depositary to ADR Owners and ADR Holders under the Deposit Agreement are expressly limited to performing its obligations specified therein without negligence or bad faith.
The Depositary will keep books at its Corporate Trust office, for the registration and transfer of ADRs, which at all reasonable times will be open for inspection by the ADR Owners or ADR Holders provided that such inspection shall not be for the purpose of communicating with holders 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 ADRs.
The Depositary may appoint one or more co-transfer agents upon the written request or with the approval of the Company for the purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by beneficial owners of ADSs or persons entitled to ADRs and will be entitled to protection and indemnity to the same extent as the Depositary.
GOVERNING LAW
The Deposit Agreement is governed by the laws of the State of New York.
GERMAN TAXATION OF HOLDERS OF ADSs OR ORDINARY SHARES
The following discussion generally summarizes the principal German tax consequences of the acquisition, ownership and disposition of Ordinary Shares or ADSs. It does not describe all of the tax considerations that may be relevant to a prospective purchaser of Ordinary Shares or ADSs.
This summary is based on the laws that are in force at the date hereof and is subject to any changes in German law, or in any applicable double taxation conventions to which Germany is a party, occurring after such date. In October 2000, the Tax Reduction Act (Steuersenkungsgesetz) was enacted in Germany as part of an extensive tax reform. The new law became effective as of January 1, 2001. However, for companies whose fiscal years are the calendar year, most of the regulations with regard to dividends, capital gains and other relevant provisions enter into effect for the tax year beginning in 2002. The following discussion addresses only those regulations which are valid in the 2001 tax year. Significant changes which are effective in 2002 may be mentioned herein but are not explained in detail. This discussion is also based, in part, on representations of the Depositary and assumes that each obligation of the Deposit Agreement and any related agreements will be performed in accordance with its terms.
The following discussion is not a complete analysis or listing of all potential German tax consequences to holders of ADSs or Ordinary Shares and does not address all tax considerations that may be relevant to all categories of potential purchasers or owners of ADSs or Ordinary Shares. In particular, the following discussion does not address the tax consequences for: (1) a person who owns, directly or indirectly, 10% or more of the Company's shares, (2) a holding which forms part of a German permanent establishment of a person not resident in Germany, or (3) a person that is resident in Germany and at the same time resident in another country. OWNERS AND PROSPECTIVE PURCHASERS OF ADSs OR ORDINARY SHARES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE OVERALL GERMAN TAX CONSEQUENCES OF THE ACQUISITION, OWNERSHIP AND DISPOSITION THEREOF.
For purposes of applying German tax law and the double tax conventions to which Germany is a party, a holder of ADSs will generally be treated as owning the Ordinary Shares represented thereby.
GERMAN TAXATION OF DIVIDENDS
Under German domestic income tax laws, German corporations are required to withhold tax on dividends in an amount equal to 25% of the gross amount paid to resident and non-resident shareholders. A 5.5% surtax on the German withholding tax is currently levied on dividend distributions paid by a German corporation, such as the Company. The surtax equals 1.375% (5.5% of 25%) of the gross amount of a cash dividend. Certain persons resident in Germany (e.g., qualifying investment funds or tax-exempt organizations) may obtain a partial or full refund of such taxes.
The Tax Reduction Act decreases the withholding tax on dividends from 25% to 20%. Accordingly, the respective surtax will be reduced from 1.375% to 1.10%. For companies whose fiscal year is the calendar year, the new regulation will be effective the first time for regular dividend distributions made in the year 2002 for previous years.
For a holder of ADSs or Ordinary Shares that is resident in Germany,
according to German income tax law, dividends are subject to German income tax
or corporation tax. For such a holder, the taxable amount will be the sum of:
(1) the cash payment by the Company, (2) the taxes withheld, and (3) 3/7 of the
sum of (1) and (2). Subject to certain conditions, the tax withheld and the
gross-up of 3/7 will be eligible for credit against the holder's income or
corporation tax. If the dividend is paid out of tax-exempt foreign income, there
will be neither the 3/7 gross-up of the income nor a credit for this amount. For
holders subject to German Trade Tax, such tax is also imposed on the dividends
received (including any gross-up).
With regard to the taxation of dividends, the full imputation system (tax credit system) will be applicable in 2001 for the last time provided that the fiscal year of the distributing company equals the calendar year. From 2002, the Tax Reduction Act replaces the full imputation system by the half-income system. Under this system only half of the distributed profits of a corporation will be included in the individual shareholder's personal income tax base. Therefore, it will no longer be possible to credit the corporation tax paid by the company against the shareholder's income tax. Accordingly, there will be neither the 3/7 gross-up of the income nor a credit for this amount. Dividends received by corporate shareholders in general will be tax-exempt.
REFUND OF GERMAN TAX TO U.S. HOLDERS
For purposes of this discussion, a "U.S. Holder" is a beneficial owner:
(1) who is an individual citizen or resident of the United States or a
corporation organized under the laws of the United States or any political
subdivision thereof, (2) who is not resident in Germany for German tax purposes,
(3) whose holding of ADSs or Ordinary Shares does not form part of the business
property or assets of a permanent establishment or fixed based in Germany, and
(4) who is fully entitled, in respect of such ADSs or Ordinary Shares, to the
benefits of the U.S.-German income tax treaty (Convention between the Federal
Republic of Germany and the United States of America for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with respect to taxes on Income
(German Federal Law Gazette (BGBl 1991 II page 355)) (the "Treaty").
A partial refund of the 25% withholding tax equal to 10% of the gross amount of the dividend and a full refund of the surtax can be obtained by a U.S. Holder under the Treaty. In addition, so long as the German imputation system provides German resident individual shareholders with a tax credit for corporate taxes with respect to dividends paid by German corporations, the Treaty provides that U.S. Holders are entitled to a further refund equal to 5% of the gross amount of the dividend. Thus, for each US$100 of gross dividends paid by the Company to a U.S. Holder, the dividends after partial refund of the 25% withholding tax and a refund of the surtax under the Treaty will be subject to a German withholding tax of US$15. If the U.S. Holder also applies for the additional 5% refund, then the German withholding tax is effectively reduced to US$10. Thus, the cash received per US$100 of gross dividends is US$90 after refund of German withholding tax from the German tax authorities.
As mentioned above the 25% withholding tax will be reduced to 20% and the full imputation system will be replaced beginning with the year 2002. Accordingly, the refund of German tax to U.S. holders will change.
To claim the refund of amounts withheld in excess of the Treaty rate, a U.S. Holder must submit (either directly or, as described below, through the Depositary) a claim for refund to the German tax authorities, with, in the case of a direct claim, the original bank voucher (or certified copy thereof) issued by the paying entity documenting the tax withheld, within four years from the end of the calendar year in which the dividend is received. Claims for refund are made on a special German claim for refund form, which must be filed with the German tax authorities: Bundesamt fur Finanzen, 53221 Bonn, Germany. The German claim for refund form may be obtained from the German tax authorities at the same address where applications are filed, or from the Embassy of the Federal Republic of Germany, 4645 Reservoir Road, N.W., Washington, D.C. 20007-1998.
U.S. Holders must also submit to the German tax authorities certification of their most recently filed U.S. federal income tax return (IRS Form 6166). Certification is obtained from the office of the Director of the Internal Revenue Service Center by filing a request for certification with the Internal Revenue Service ("IRS"), Philadelphia Service Center Foreign Certification Request, P.O. Box 16347, Philadelphia, PA 19114-0447. Requests for certification are to be made in writing and must include the U.S. Holder's name, social security number or employer identification number, tax return form number, and tax period for which certification is requested. This certification is valid for three years and need only be resubmitted in a fourth year in the event of a subsequent application for refund.
In accordance with arrangements under the Deposit Agreement, the Depositary (or a custodian as its designated agent) holds the Ordinary Shares and receives and distributes dividends to the U.S. Holders. The Depositary has agreed, to the extent practicable, to perform administrative functions necessary to obtain the refund of amounts withheld in excess of the Treaty rate for the benefit of U.S. Holders who supply the necessary documentation.
Under the Deposit Agreement, the Depositary has agreed to send to the U.S. Holders of ADSs a notice explaining how to claim a refund, the form required to obtain the IRS Form 6166 certification and the German claim for refund form. The notice will describe how to obtain the certification on IRS Form 6166. In order to claim a refund, the U.S. Holder should deliver the
certification provided to it by the IRS to the Depositary along with the completed claim for refund form. In the case of ADSs held through a broker or other financial intermediary, the required documentation should be delivered to such broker or financial intermediary for forwarding to the Depositary. In all other cases, the U.S. Holders should deliver the required documentation directly to the Depositary. The Depositary will file the required documentation with the German tax authorities on behalf of the U.S. Holders.
The German tax authorities will issue the refunds, which will be denominated in Marks, in the name of the Depositary. The Depositary will convert the refunds into Dollars and issue corresponding refund checks to the U.S. Holders or their brokers.
TAXATION OF CAPITAL GAINS
A capital gain derived from the sale or other disposition by a holder resident in Germany of ADSs or Ordinary Shares is taxable if the ADSs or Ordinary Shares are held as part of his or her trade or business or if the ADSs or Ordinary Shares are sold within a period of one year after acquisition.
The taxation of capital gains will also be subject to the above mentioned half-income system. The new treatment will apply the first time for capital gains derived in the year 2002 provided that the fiscal year of the company whose shares are sold equals the calendar year. Half of any capital gain derived from the sale or other disposition by an individual holder resident in Germany of ADSs or Ordinary Shares is taxable if the ADSs or Ordinary Shares are held as his or her trade or business subject to certain conditions or if the ADSs or Ordinary Shares are sold within a period of one year after acquisition. Capital gains derived by corporate shareholders resident in Germany are tax-exempt subject to certain conditions.
A holder resident in a country other than Germany is not subject to German income or corporation tax on the capital gain derived from the sale or other disposition of ADSs or Ordinary Shares.
OTHER GERMAN TAXES
There are no German net worth, transfer, stamp or similar taxes on the holding, purchase or sale of ADSs or Ordinary Shares.
GERMAN ESTATE AND GIFT TAXES
A transfer of ADSs or Ordinary Shares by gift or by reason of death of a holder will be subject to German gift or inheritance tax, respectively, if one of the following persons is resident in Germany: the donor or transferor or his or her heir, or the donee or other beneficiary. If one of the aforementioned persons is resident in Germany and another is resident in a country having a treaty with Germany, regarding gift or inheritance taxes, different rules may apply. If none of the aforementioned persons is resident in Germany, the transfer is not subject to German gift or inheritance tax. For persons giving up German residence, special rules apply during the first five years, and under specific circumstances, during the first ten years, after the end of the year in which the person left Germany. In general, in the case of a U.S. Holder, a transfer of ADSs or Ordinary Shares by gift or by reason of death that would otherwise be subject to German gift or
inheritance tax, respectively, will not be subject to such German tax by reason of the current estate tax treaty between the U.S. and Germany unless the donor or transferor, or the heir, donee or other beneficiary, is domiciled in Germany for purposes of the current estate tax treaty between the United States and Germany at the time of the making of the gift or at the time of the donor's or transferor's death.
In general, the U.S.-German estate tax treaty provides a credit against U.S. federal estate and gift tax liability for the amount of inheritance and gift tax paid in Germany, subject to certain limitations, in a case where the ADSs or Ordinary Shares are subject to German inheritance or gift tax and U.S. federal estate or gift tax.
ITEM 2. EXHIBITS
The following exhibits are filed as part of this registration statement:
Exhibit No. Exhibit Description
----------- -------------------
1. Articles of Association (Satzung), as amended
to date (English translation). Incorporated
by reference to the Company's Form 6-K, filed
on November 22, 2000.
2. Articles of Association (Satzung), as amended do
reflect amendments approved on May 3, 2001
(English translation).
3. Form of global share certificate for Ordinary
Shares (English translation).
4. Form of Amended and Restated Deposit Agreement among
the Company, The Bank of New York, as Depositary, and
all owners and holders from time to time of American
Depositary Receipts issued thereunder, including the
form of American Depositary Receipt.
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SIGNATURE
Pursuant to the requirements of Section 12 of the United States Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
SAP AKTIENGESELLSCHAFT
(Registrant)
Date: May 3, 2001 By: /s/ Prof. Dr. Henning Kagermann
----------------------------------------------
Name: Prof. Dr. Henning Kagermann
Title: Co-Chairman and Chief Executive Officer
By: /s/ Dr. Werner Brandt
--------------------------------------------
Name: Dr. Werner Brandt
Title: Chief Financial Officer
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Exhibit Description
1. Articles of Association (Satzung), as amended to date (English
translation). Incorporated by reference to the Company's Form
6-K, filed on November 22, 2000.
2. Articles of Association (Satzung), as amended to reflect
amendments approved on May 3, 2001 (English translation).
3. Form of global share certificate for Ordinary Shares (English
translation).
4. Form of Amended and Restated Deposit Agreement among the
Company, The Bank of New York, as Depositary, and all owners and
holders from time to time of American Depositary Receipts issued
thereunder, including the form of American Depositary Receipt.
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SAP Aktiengesellschaft Exhibit 2
Neurottstrasse 16
69190 Walldorf
Germany
Phone: +49 6227 7-47474
SAP AG
ARTICLES OF ASSOCIATION
I. GENERAL PROVISIONS
SECTION 1 CORPORATE NAME, REGISTERED OFFICE AND TERM OF THE COMPANY
1. The name of the Company is:
SAP Aktiengesellschaft Systeme, Anwendungen, Produkte in der Datenverarbeitung.
2. The Company's registered office is in Walldorf, Germany.
3. The Company is incorporated for an indefinite period of time.
SECTION 2 OBJECTIVES OF THE COMPANY
1. The objectives of the Company are: to develop software, to license such software to third parties, to provide business analysis and implementation consulting services as well as customer training; in addition, to sell, lease, rent or arrange the procurement and provision of IT systems and related equipment for other purposes.
2. As far as permitted by law, the Company may conduct all business and take all measures, which seem appropriate to support its objectives. The Company may in particular acquire or sell land, establish branch offices within Germany and abroad, acquire participations in businesses of the same or a similar kind - in special cases also of a different kind - and conclude corporate, cooperation and joint venture agreements.
SECTION 3 OFFICIAL NOTICES
The Company's official notices shall be published in the "Bundesanzeiger" (the official gazette of the Federal Republic of Germany) only.
II. CAPITAL STOCK AND SHARES
SECTION 4 CAPITAL STOCK
1. The Company's capital stock amounts to E314,714,655.00 and is divided into 314,714,655 no-par ordinary shares.E
2. The shares are individual shares. They are made out to the bearer.
3. The form of the share certificates, dividend coupons, and renewal coupons as well as bonds and interest coupons shall be determined by the Executive Board with the consent of the Supervisory Board. The Company may combine single shares of the same par values into share certificates certifying a majority of shares with the corresponding par value (multiple share certificates). Shareholders are not entitled to certificates for single shares.
4. When new shares are issued, the commencement of dividend entitlement in respect of these new shares may be determined in derogation of the German Stock Corporation Act, section 60 (2),
5. The Company's capital stock is subject to a contingent increase by E1,032,495, divided into up to 1,032,495 no-par ordinary voting bearer shares in the form of individual share certificates (Contingent Capital IIa). The contingent capital increase shall be effected only to the extent that the holders of the convertible bonds issued by the Executive Board by virtue of the resolution of the General Meeting of Shareholders of June 22, 1994 actually exercise their conversion rights in respect of ordinary shares in the Company. The new shares are eligible for dividends as of the beginning of the fiscal year in which they are issued. The Executive Board shall be entitled to determine the further details of the implementation of such contingent capital increase.
6. Subject to the consent of the Supervisory Board, the Executive Board is authorized to increase the Company's capital stock, on one or more occasions, by no later than May 1, 2006 by up to a total amount of E60 million against contribution in cash by issuing new no-par ordinary voting bearer shares (Authorized Capital I). The new shares shall be offered to the shareholders for subscription. Subject to the consent of the Supervisory Board, the Executive Board is authorized, however, to exclude fractional shares from the shareholders' subscription rights. Subject to the consent of the Supervisory Board, the Executive Board is authorized to determine the further details of the implementation of the capital increases from Authorized Capital I. The Supervisory Board is authorized to amend the wording of the Articles of Association after the full or partial implementation of the capital stock increase from Authorized Capital I or after the expiration of the authorization period in accordance with the scope of the capital increase from Authorized Capital I.
7. The Company's capital stock is subject to a contingent increase by an additional E7,376,311 by issuing up to 7,376,311 no-par ordinary voting bearer shares (Contingent Capital IIIa). Said contingent capital increase shall be effected only to the extent that the
holders of the convertible bonds and stock options issued by SAP AG on or before March 16, 2001 under the SAP AG 2000 Long Term Incentive Plan by virtue of the authorization resolution adopted by the general meeting of shareholders of January 18, 2000 actually exercise their conversion rights or subscription rights, as appropriate, in respect of ordinary shares in the Company and the Company does not grant own shares in satisfaction of such conversion rights or subscription rights, as appropriate. The new shares issued in connection with the exercise of such conversion or subscription rights are eligible for dividends as of the beginning of the fiscal year with regard to which, as at the time of the exercise of the conversion or subscription rights, no resolution by the General Meeting of Shareholders concerning the appropriation of retained earnings for the year has been adopted.
8. Subject to the consent of the Supervisory Board, the Executive Board is authorized to increase the Company's capital stock, on one or more occasions, by no later than May 1, 2006 by up to a total amount of E60 million against contributions in cash or in kind by issuing new no-par ordinary voting bearer shares (Authorized Capital II). Subject to the consent of the Supervisory Board, the Executive Board is authorized to exclude the shareholders' statutory subscription rights:
- in respect of fractional shares;
- where the capital is increased against contributions in
cash and the portion of the capital stock represented
by the new shares in respect of which the subscription
rights are excluded does not exceed 10% of such capital
stock at the time the new shares are issued and the
issue price of the new shares is not materially below
the stock exchange price of listed shares of the same
class carrying the same rights at the time the
Executive Board finally determines the issue price, as
provided in the German Stock Corporation Act, section
203 (1) and (2) and section 186 (3) sentence 4;
- where the capital is increased against contributions in kind to obtain shares for the acquisition of enterprises or interests therein.
Subject to the consent of the Supervisory Board, the Executive Board is authorized to determine the further details of the implementation of the capital increases from the Authorized Capital. The Supervisory Board is authorized to amend the wording of the Articles of Association after the full or partial implementation of the capital stock increase from Authorized Capital or after the expiration of the authorization period in accordance with the scope of the capital increase from Authorized Capital II.
9. The capital stock is subject to a further contingent increase of E25 million, divided into up to 25 million ordinary voting bearer shares (Contingent Capital IV). The contingent capital stock increase shall be effected only to the extent that holders of warrants or conversion rights attaching to bonds with detachable warrants or convertible bonds issued or guaranteed by no later than May 1, 2006 by SAP AG or by its fully-owned direct or indirect German or foreign affiliates exercise their warrant or conversion rights or to the extent that holders under a duty to convert convertible bonds issued or guaranteed by no
later than May 1, 2006 by SAP AG or by its fully-owned direct or indirect affiliates perform their conversion obligation. The new shares are eligible for dividends as of the beginning of the fiscal year in which they arise through the exercise of warrant rights or the conversion of convertible bonds.
10. The Company's capital stock is subject to a further contingent increase by E1,032,495, divided into up to 1,032,495 no-par non-voting preference bearer shares in the form of individual share certificates carrying preferential rights to profits in accordance with Section 23 (6) of the Articles of Association and ranking equally with any preference shares already issued under Contingent Capital II and Contingent Capital III (Contingent Capital II). The contingent capital increase shall be effected only to the extent that the holders of convertible bonds which the Executive Board was authorized to issue by the General Meeting of Shareholders of June 22, 1994 are entitled to conversion rights in respect of ordinary shares in the Company and actually exercise such rights. The new shares are eligible for dividends as of the beginning of the fiscal year in which they are issued. The Executive Board shall be entitled to determine the further details of the implementation of such contingent capital increase.
11. The Company's capital stock is subject to a further contingent increase by E7,376,311 by issuing up to 7,376,311 no-par voting preference shares carrying preferential right to profits in accordance with Section 23 (6) of the Articles of Association and ranking equally with any preference shares already issued under Contingent Capital II and Contingent Capital III (Contingent Capital III). Said contingent capital increase shall be effected only to the extent that the holders of convertible bonds and stock options issued by SAP AG on or before March 16, 2001 under the SAP AG 2000 Long Term Incentive Plan by virtue of the authorization resolution adopted by the General Meeting of Shareholders of January 18, 2000 are entitled to any conversion rights or subscription rights, as appropriate, in respect of ordinary shares in the Company and actually exercise said rights and the Company does not grant own shares in satisfaction of the conversion rights or subscription rights, as appropriate. The new shares issued in connection with the exercise of such conversion or subscription rights are eligible for dividends as of the beginning of the fiscal year with regard to which, as at the time of the exercise of the conversion or subscription rights, no resolution by the General Meeting of Shareholders concerning the appropriation of retained earnings for the year has been adopted.
12. The Company's capital stock is subject to a further contingent increase by E9,978,199 by issuing up to 9,978,199 no-par ordinary voting bearer shares (Contingent Capital V). Said contingent capital increase shall be effected only to the extent that the holders of the convertible bonds and stock options issued by SAP AG under the SAP AG 2000 Long Term Incentive Plan by virtue of the authorization resolution of the General Meeting of Shareholders of January 18, 2000 and the supplementing authorization of the General Meeting of Shareholders of May 3, 2001 in the period until December 31, 2004 actually exercise their conversion rights or subscription rights, as appropriate, in respect of ordinary shares in the Company and the Company does not grant own shares in satisfaction of such conversion rights or subscription rights, as appropriate. The new shares issued in connection with the exercise of such conversion rights or subscription rights are eligible for dividends as of the beginning of the fiscal year with regard to which, as at the time of the exercise of the conversion or subscription right, no resolution by the
General Meeting of Shareholders concerning the appropriation of retained earnings for the year has been adopted.
III. CONSTITUTION AND MANAGEMENT OF THE COMPANY
SECTION 5 CORPORATE BODIES
The Company's executive bodies are:
a) the Executive Board, b) the Supervisory Board, c) the General Meeting of Shareholders.
THE EXECUTIVE BOARD
SECTION 6 COMPOSITION OF THE EXECUTIVE BOARD
1. The Executive Board shall consist of at least two persons. The appointment of deputy members of the Executive Board is admissible. The latter have the same rights as the full members of the Executive Board regarding the external representation of the Company.
2. The determination of the number and the appointment of the full members and the deputy members of the Executive Board, the conclusion of their employment contracts, and the revocation of their appointments are the responsibility of the Supervisory Board, as are the appointment of a member of the Executive Board as chairman of the Executive Board and the appointment of one or more member/s of the Executive Board as deputy chairman/chairmen of the Executive Board.
SECTION 7 RULES OF PROCEDURE AND RESOLUTIONS OF THE EXECUTIVE BOARD
1. The Executive Board shall unanimously adopt its own rules of procedure.
2. Resolutions of the Executive Board shall be adopted by a majority vote. Should a vote end in a tie, the chairman of the Executive Board, or - if the chairman is unable to vote - the deputy chairman of the Executive Board shall have the casting vote.
SECTION 8 LEGAL REPRESENTATION OF THE COMPANY
The Company shall be legally represented
a) by two members of the Executive Board;
b) by one member of the Executive Board acting jointly with one Company officer with full power of attorney.
SECTION 9 LIMITATION OF THE EXECUTIVE BOARD'S AUTHORITY
The Executive Board shall be obliged to adhere to the limitations imposed by the Articles of Association or the Supervisory Board regarding the scope of its management authority or which result from a resolution adopted by the General Meeting of Shareholders pursuant to the German Stock Corporation Act, section 119.
IV. THE SUPERVISORY BOARD
SECTION 10 COMPOSITION, TERM OF OFFICE
1. The Supervisory Board shall consist of twelve members, six of whom shall be elected by the shareholders and six by the employees pursuant to the provisions of the 1976 German Codetermination Act.
2. Unless the General Meeting of Shareholders specifies a shorter term of office when electing individual members of the Supervisory Board or the entire Supervisory Board, the members of the Supervisory Board shall be appointed for a period ending with the General Meeting of Shareholders at which the actions of the Supervisory Board were formally approved for the fourth financial year following commencement of the term of office, not counting the financial year in which their term of office commences.
3. Substitutes for shareholders' representatives on the Supervisory Board may be elected to replace members who resign prior to the expiry of their term; the order of their succession shall be stipulated at the time of their election.
4. In the event that a shareholders' representative is elected to replace a member of the Supervisory Board who resigns, the successor shall be appointed for the remaining term of office of the resigning member. In the event that a substitute member succeeds the resigning member, his term of office shall expire either as of the conclusion of the next General Meeting of Shareholders at which new members of the Supervisory Board are elected or at the latest upon expiry of the term of office of the resigning member of the Supervisory Board. In the event that the General Meeting of Shareholders elects a new representative to replace a member who has already been succeeded by a substitute member, the successor reverts to his position as substitute member.
5. The members and substitute members of the Supervisory Board may resign from office by submitting a written statement addressed to the chairman of the Supervisory Board or to the Executive Board observing a period of notice of four weeks.
SECTION 11 DUTIES AND RESPONSIBILITIES OF THE SUPERVISORY BOARD
1. The Supervisory Board shall have all duties and rights that are conferred upon it by law, the Articles of Association or otherwise. Both the Executive and Supervisory Boards shall be entitled to call a General Meeting of Shareholders.
2. The Supervisory Board shall be authorized to amend the Articles of Association where such amendments only concern the wording.
3. The Supervisory Board shall be entitled at any time to supervise all management activities of the Executive Board and to this end to inspect and examine all books and records as well as the assets of the Company.
4. To the extent stipulated by law, the Executive Board shall be obliged to report to the Supervisory Board on the current affairs of the Company.
5. The Supervisory Board may set up committees made up of its own members. Where permitted by law, decision-making powers may be delegated to such committees.
SECTION 12 DECLARATIONS OF INTENT OF THE SUPERVISORY BOARD
1. Declarations of intent of the Supervisory Board and its committees shall be given on behalf of the Supervisory Board by the chairman or - should he be unable to do so - by the deputy chairman.
2. The chairman of the Supervisory Board or his deputy shall be the permanent representative of the Supervisory Board vis-a-vis third parties, especially vis-a-vis courts and authorities as well as the Executive Board.
SECTION 13 CHAIRMAN AND DEPUTY CHAIRMAN
1. Following an General Meeting of Shareholders at which all members of the Supervisory Board to be elected by the General Meeting of Shareholders have been newly appointed, a meeting of the Supervisory Board shall take place, which shall be held without special invitation. At this meeting the Supervisory Board shall elect one of its members as chairman and another as deputy chairman for the term of its office.
2. In the event that the required majority of votes is not reached to elect a chairman or deputy chairman of the Supervisory Board, a second ballot shall be held. In this ballot the members of the Supervisory Board representing the shareholders shall elect the chairman of the Supervisory Board, and the members representing the employees shall elect the deputy chairman by a majority vote.
3. Following the election of the chairman and the deputy chairman of the Supervisory Board, the Supervisory Board shall form a committee in order to exercise its duties as stipulated in the German Codetermination Act, section 31 (3)(1). This committee shall consist of the chairman and the deputy chairman of the Supervisory Board as well as two other members of the Supervisory Board, one to be elected by the employees' representatives and the other by the shareholders' representatives on the Supervisory Board. Both members shall be elected by a majority vote.
4. In the event that the chairman of the Supervisory Board is prevented from executing his office, the deputy chairman shall take his place. This provision shall not affect article 20 (1).
5. In the event that the chairman or deputy chairman resigns from office prior to expiry of the term of that office, the Supervisory Board shall elect a new chairman or deputy chairman without delay. The same shall apply in the event that one of the other members of the committee referred to in paragraph 3 resigns from office prior to expiry of the term of that office.
SECTION 14 INVITATIONS TO MEETINGS AND RESOLUTIONS
1. The Supervisory Board shall adopt its own rules of procedure by a majority vote. The following provisions apply to invitations to meetings, quorums and resolutions. Supplementary provisions may be stipulated in the rules of procedure.
2. Invitations to attend meetings of the Supervisory Board shall be issued in writing by the chairman no later than fourteen days prior to any meeting, not counting the day of dispatch of the invitation and the day of the meeting. In urgent cases, the chairman may shorten the term and call a meeting by issuing invitations orally or by telephone, telex, telegram, or facsimile.
3. The Supervisory Board may provide in its rules of procedure for the permissibility of the adoption of resolutions of the Supervisory Board and its committees in writing, by telegraph, telephone, facsimile, telex or similar forms, in particular by means of video conferences. Any resolutions adopted by telephone or by means of any other non-written transmission procedures shall be subsequently confirmed in writing.
4. The Executive Board may attend the meetings of the Supervisory Board in an advisory capacity.
5. A quorum shall be present if at least six members of the Supervisory Board attend a meeting. Unless otherwise stipulated by law or by the Articles of Association, resolutions of the Supervisory Board shall be adopted by a majority vote. Should a vote end in a tie, and should a repeated vote on the same item likewise end in a tie, the chairman shall have the casting vote. The casting vote may be given in one of the ways set forth in paragraph 3. The deputy chairman shall not be entitled to give a casting vote.
SECTION 15 DUTY OF SECRECY
1. The members of the Supervisory Board shall be obliged to maintain secrecy in respect of any confidential information and secrets of the Company, notably business and trade secrets, which have been imparted to them in their capacity as members of the Supervisory Board. Persons taking part in meetings of the Supervisory Board who are not members of the Supervisory Board shall be expressly enjoined to secrecy.
2. In the event that a member of the Supervisory Board intends to pass information on to a third party, he shall be obliged to notify the Supervisory Board and the Executive Board of his intention beforehand, naming the persons he wishes to inform. The Supervisory Board and the Executive Board must be given the opportunity to decide prior to the disclosure of information whether they consider such disclosure to violate paragraph 1 or not. The decision shall be made by the chairman of the Supervisory Board and the chairman of the Executive Board.
3. The members of the Supervisory Board shall be obliged to maintain secrecy as set forth in the foregoing paragraphs after their resignation from the Supervisory Board.
SECTION 16 REMUNERATION
Besides the reimbursement of his expenses, each member of the Supervisory Board shall receive a fixed remuneration amounting to E5,112.92, payable upon the expiry of the financial year, as well as an additional remuneration amounting to E1,789.52 for each percent of distributed profits, based on the capital stock, and a pro rata amount in the case of fractions of a percentage. The additional remuneration is payable on the first business day following the General Meeting of Shareholders. The chairman shall receive twice the amount, and the deputy chairman one and a half times the amount determined for the other members of the Supervisory Board. However, the total remuneration (not including sales tax) shall not exceed the following amounts per fiscal year:
- For the chairman: 14 times the fixed remuneration
- For the deputy chairman: 10.5 times the fixed remuneration
- For the other members of the Supervisory Board: 7 times the fixed remuneration.
In addition, any sales tax charged by a member of the Supervisory Board or shown in a credit advice for an invoice shall be refunded by the Company to the extent prescribed by law.
V. THE GENERAL MEETING OF SHAREHOLDERS
SECTION 17 INVITATION TO THE GENERAL MEETING OF SHAREHOLDERS
1. The General Meeting of Shareholders shall be held at the registered office of the Company, at a location within a radius of 50 km from the registered office of the company, or in a city in the Federal Republic of Germany where a stock exchange is located. In the event that it is difficult to hold the General Meeting of Shareholders at these venues, the Executive Board or the Supervisory Board may call the meeting at a different location. The invitation shall state the location of the General Meeting of Shareholders.
2. The Executive Board or the Supervisory Board shall call the General Meeting of Shareholders.
3. The General Meeting of Shareholders shall be called by publication of an announcement in the official gazette of the Federal Republic of Germany, giving the information required by law, in such a way that pursuant to article 18 (2) of the Articles of Association, there shall be a period of one month between the date of the publication and the last date of deposit, not counting these two days.
SECTION 18 RIGHT TO ATTEND THE GENERAL MEETING OF SHAREHOLDERS
1. Shareholders are entitled to participate in the General Meeting of Shareholders provided they have deposited their shares at the Company or at other places stipulated in the invitation or at a collective security deposit bank or with a notary public during normal business hours, and leave them there until the conclusion of the General Meeting of Shareholders.
2. The deposit shall be effected no later than seven days before the General Meeting of Shareholders. Should this day fall on a Sunday, a public holiday at the place of deposit, or a Saturday, the notice of deposit may be submitted on the immediately following business day, whereby Saturdays shall not be deemed business days.
3. Shares shall also be deemed properly deposited if, with the approval of and on behalf of a depository, they are lodged with and kept blocked at another bank until the conclusion of the General Meeting of Shareholders.
4. In the event that shares are deposited with a notary public, the original depository receipt issued by him or a certified copy thereof has to be filed with the Company at the latest on the day following expiry of the deposit deadline. Should this day fall on a Sunday, a public holiday at the Company's registered office, or a Saturday, the notice of deposit may
be submitted on the immediately following business day, whereby Saturdays shall not be deemed business days.
5. Details regarding the depositing of shares and the issuance of voting cards shall be published in the invitation.
SECTION 19 VOTING RIGHTS
1. Each ordinary share shall entitle its holder to a vote. In the event that any preference shares in the Company are issued, such preference shares shall not carry any voting rights, unless otherwise provided by law. To the extent that such preference shares carry voting rights in accordance with applicable law, each preference share shall entitle to one vote.
2. Voting rights may be exercised by proxy. A written statement shall be sufficient for the appointment of a proxy. If so provided in the invitation to the General Meeting of Shareholders, such statement may also be transmitted to the Company via facsimile or electronically.
3. If no share certificates have been issued, the invitation to the General Meeting of Shareholders shall stipulate the provisions that have to be fulfilled by the shareholders in order to prove their entitlement to voting rights.
SECTION 20 CHAIRMANSHIP OF THE GENERAL MEETING OF SHAREHOLDERS
1. The chairman of the Supervisory Board shall chair the General Meeting of Shareholders. Should the chairman be prevented from chairing the meeting, he shall determine another member of the Supervisory Board to take his place. In the event that the chairman is prevented from chairing the meeting and has not determined another member to act as his substitute, the General Meeting of Shareholders shall be chaired by a member of the Supervisory Board elected by the shareholders' representatives on the Supervisory Board.
2. The chairman shall conduct the proceedings and shall determine both the order of the agenda and the form of voting. The outcome of the ballots may be determined by subtracting the affirmative votes or the negative votes and the abstentions from the total number of voting rights to which the voters are entitled.
SECTION 21 RESOLUTIONS OF THE GENERAL MEETING OF SHAREHOLDERS
1. The resolutions of the General Meeting of Shareholders shall be adopted with the majorities provided by law.
2. Should a vote end in a tie, the motion shall be deemed rejected, except in the case of elections.
3. Should no candidate receive a simple majority of votes during the first ballot, a second ballot shall be conducted among those candidates who received the largest number of votes. Should the second ballot end in a tie, the election shall be determined by drawing lots.
SECTION 22 MINUTES OF THE GENERAL MEETING OF SHAREHOLDERS
1. A notary shall take minutes of the proceedings of the General Meeting of Shareholders; the notary and the chairman shall sign the minutes.
2. A list of those shareholders attending in person or represented at the meeting and their representatives shall be attached to the minutes. The chairman of the General Meeting of Shareholders shall sign this list. The minutes shall have full probative value for the shareholders both among themselves and in relation to their representatives.
3. The proxy documents need not be attached to the minutes.
VI. ANNUAL FINANCIAL STATEMENTS AND APPROPRIATION OF RETAINED EARNINGS
SECTION 23
FINANCIAL YEAR, ANNUAL REPORT AND FINANCIAL STATEMENTS, FORMAL APPROVAL
OF THE ACTIONS OF THE EXECUTIVE AND SUPERVISORY BOARDS,
DISTRIBUTION OF RETAINED EARNINGS
1. The financial year shall be the calendar year.
2. The Executive Board shall prepare the Financial Statements and the Review of Operations for the previous fiscal year and submit them to the Supervisory Board and to the Auditor in the first three months of each fiscal year. At that time the Executive Board shall submit to the Supervisory Board the proposal it wishes to make to the General Meeting of Shareholders concerning the appropriation of retained earnings.
3. As soon as an invitation to the General Meeting of Shareholders has been issued, the annual financial statements, the management report, the report of the Supervisory Board
and the Executive Board's proposal for the appropriation of the retained earnings shall be available for the shareholders' inspection on the business premises of the Company.
4. After receipt of the report to be rendered by the Supervisory Board pursuant to the German Stock Corporation Act, section 171 (2), the General Meeting of Shareholders shall resolve within the first eight months of the financial year on the formal approval of the actions of the Executive and Supervisory Boards, the appropriation of the retained earnings, the appointment of the auditors, and in cases provided for by law, the approval of the annual financial statements.
5. In approving the annual financial statements, the Executive and Supervisory Boards shall be authorized to appropriate to the retained earnings either all or part of the annual net income remaining after deduction of amounts to be allocated to the legal reserves and of any accumulated losses carried forward. The Executive and Supervisory Boards may not appropriate more then one half of the annual net income if, after such allocation, the other retained earnings would exceed one half of the capital stock.
6. In the event that any non-voting preference shares in the Company are issued, the holders of such preference shares shall receive a share of the retained earnings to be distributed that exceeds the dividend paid on ordinary shares by at least 1 euro cent and is equal to no less than 1 euro cent per preference share. In the event that the retained earnings of a financial year are not sufficient to pay the preferred amount pursuant to sentence 1, the retained earnings of the subsequent financial year shall first be used to pay the arrears without interest before the entire preferred amount for that financial year is distributed to the holders of preference shares. In the event of there being outstanding preferred amounts for several financial years, the retained earnings shall first be used to pay the arrears without interest in the order of their accrual, and when all arrears have been paid, the remainder shall be used to pay the preferred amount for the financial year preceding the dividend distribution. The right to back payment constitutes part of the share in the profits of that financial year whose retained earnings are used to make the back payment on the preference shares.
SECTION 24 COSTS OF INCORPORATION AND CONVERSION
The Company shall bear all costs connected with its incorporation and conversion. These costs are estimated at DM 250,000.
Exhibit 3
[Border]
SAP Aktiengesellschaft
Systems, Applications and Products in Data Processing Walldorf
Form of Global Share Certificate
for
_______________ Ordinary Shares
divided into
_______________ Individual Shares
No. 1 - _______________
In accordance with the Articles of Association, the holder of this Global Share Certificate is entitled to be the shareholder of ____________ Ordinary Shares of SAP Aktiengesellschaft Systems, Applications and Products in Data Processing, Walldorf.
Walldorf, [date]
SAP Aktiengesellschaft
Systems, Applications and Products in Data Processing
Supervisory Board Management Board -------------------- -------------------- Chair -------------------- -------------------- Second Signature |
[Border]
|
SAP Aktiengesellschaft Systems, Applications and Products in Data Processing Walldorf
Form of Dividend Coupon for the Global Share Certificate
for
_______________ Ordinary Shares divided into
_______________ Individual Shares No. 1 - _______________
The holder of this Global Dividend Coupon is entitled to secondary or accessory rights pertaining to the above-mentioned Global Share.
Walldorf, [date]
SAP Aktiengesellschaft
Systems, Applications and Products in Data Processing
Supervisory Board Management Board -------------------- -------------------- Chair |
Exhibit 4
SAP AKTIENGESELLSCHAFT
SYSTEME, ANWENDUNGEN,
PRODUKTE IN DER
DATENVERARBEITUNG
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
FORM OF AMENDED AND RESTATED DEPOSIT AGREEMENT
-0-
1. DEFINITIONS ............................................................... 2
SECTION 1.1 AMERICAN DEPOSITARY SHARES ..................................... 2
SECTION 1.2 ARTICLE; SECTION ............................................... 2
SECTION 1.3 COMMISSION ..................................................... 2
SECTION 1.4 COMPANY ........................................................ 3
SECTION 1.5 CONSULTATION ................................................... 3
SECTION 1.6 CUSTODIAN ...................................................... 3
SECTION 1.7 DELIVER, DELIVERY .............................................. 3
SECTION 1.8 DEPOSIT AGREEMENT .............................................. 3
SECTION 1.9 DEPOSITARY; CORPORATE TRUST OFFICE ............................. 4
SECTION 1.10 DEPOSITED SECURITIES ........................................... 4
SECTION 1.11 DOLLARS; DM .................................................... 4
SECTION 1.12 EFFECTIVE DATE ................................................. 4
SECTION 1.13 FOREIGN CURRENCY ............................................... 4
SECTION 1.14 GERMANY ........................................................ 4
SECTION 1.15 HOLDER ......................................................... 5
SECTION 1.16 OWNER .......................................................... 5
SECTION 1.17 RECEIPTS ....................................................... 5
SECTION 1.18 REGISTRAR ...................................................... 5
SECTION 1.19 RESTRICTED SECURITIES .......................................... 5
SECTION 1.20 SECURITIES ACT OF 1933 ........................................ 6
SECTION 1.21 SHARES ......................................................... 6
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS ................................................. 6
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS ........................... 6
SECTION 2.2 DEPOSIT OF SHARES .............................................. 8
SECTION 2.3 EXECUTION AND DELIVERY OF RECEIPTS ............................. 9
SECTION 2.4 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS ..... 10
SECTION 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES ................. 11
SECTION 2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS ....................................................... 13
SECTION 2.7 LOST RECEIPTS, ETC. ............................................ 15
SECTION 2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS ........... 15
SECTION 2.9 PRE-RELEASE OF RECEIPTS ........................................ 15
SECTION 2.10 MAINTENANCE OF RECORDS ......................................... 17
3. CERTAIN OBLIGATIONS OF HOLDERS AND OWNERS OF RECEIPTS ..................... 17
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION .............. 17
SECTION 3.2 LIABILITY OF OWNER OR HOLDER FOR TAXES ......................... 18
SECTION 3.3 WARRANTIES ON DEPOSIT OF SHARES ................................ 18
SECTION 3.4 COMPLIANCE WITH LAW ............................................ 19
SECTION 3.5 DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS ................. 20
4. THE DEPOSITED SECURITIES .................................................. 20
SECTION 4.1 CASH DISTRIBUTIONS ............................................. 20
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS ................ 22
SECTION 4.3 DISTRIBUTIONS IN SHARES ........................................ 23
SECTION 4.4 RIGHTS ......................................................... 24
SECTION 4.5 CONVERSION OF FOREIGN CURRENCY ................................. 26
|
SECTION 4.6 FIXING OF RECORD DATE .......................................... 27
SECTION 4.7 VOTING OF DEPOSITED SECURITIES ................................. 28
SECTION 4.8 CHANGES AFFECTING DEPOSITED SECURITIES ......................... 31
SECTION 4.9 REPORTS ........................................................ 32
SECTION 4.10 LISTS OF OWNERS ................................................ 32
SECTION 4.11 WITHHOLDING .................................................... 33
5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ............................. 34
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY ..... 34
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE
COMPANY ........................................................ 35
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ... 36
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY ...................... 38
SECTION 5.5 THE CUSTODIANS ................................................. 39
SECTION 5.6 NOTICES AND REPORTS ............................................ 40
SECTION 5.7 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC. ................ 41
SECTION 5.8 INDEMNIFICATION ................................................ 41
SECTION 5.9 CHARGES OF DEPOSITARY .......................................... 44
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS .............................. 45
SECTION 5.11 EXCLUSIVITY .................................................... 45
6. AMENDMENT AND TERMINATION ................................................. 46
SECTION 6.1 AMENDMENT ...................................................... 46
SECTION 6.2 TERMINATION .................................................... 46
7. MISCELLANEOUS ............................................................. 48
SECTION 7.1 COUNTERPARTS ................................................... 48
SECTION 7.2 NO THIRD PARTY BENEFICIARIES ................................... 48
SECTION 7.3 SEVERABILITY ................................................... 48
SECTION 7.4 HOLDERS AND OWNERS AS PARTIES; BINDING EFFECT .................. 49
SECTION 7.5 NOTICES ........................................................ 49
SECTION 7.6 GOVERNING LAW .................................................. 50
SECTION 7.7 COMPLIANCE WITH U.S. SECURITIES LAWS ........................... 50
SECTION 7.8 ASSIGNMENT ..................................................... 50
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DEPOSIT AGREEMENT
FORM OF AMENDED AND RESTATED DEPOSIT AGREEMENT among 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), THE BANK OF NEW YORK, a New York banking corporation (herein called the Depositary), and all Owners (as hereinafter defined) and Holders (as hereinafter defined) from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company and the Depositary desire to enter into this Deposit Agreement to provide, as hereinafter set forth, for the deposit of Shares (as hereinafter defined) of the Company from time to time with the Depositary or with the Custodian (as hereinafter defined) as agent of the Depositary for the purposes set forth in this Deposit Agreement, for the creation of American Depositary Shares (as hereinafter defined) representing the Shares so deposited and for the execution and delivery of American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties hereto as follows:
1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities representing the interests in the Deposited Securities and evidenced by the Receipts issued hereunder. Each American Depositary Share shall represent (a) one twelfth (1/12) of one Share prior to the Effective Date and (b) one fourth (1/4) of one Share thereafter until, in either case, there shall occur a distribution upon Deposited Securities covered by Section 4.3 or a change in Deposited Securities covered by Section 4.8 with respect to which additional Receipts are not executed and delivered, and thereafter American Depositary Shares shall represent the amount of Shares or Deposited Securities determined in accordance with such Sections.
Section 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article" or "Articles" or to a "Section" or "Sections", such references shall mean an article or articles or a section or sections of this Deposit Agreement, unless otherwise required by the context.
Section 1.3 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.
Section 1.4 Company.
The term "Company" shall mean SAP Aktiengesellschaft Systeme, Anwendungen, Produkte in der Datenverarbeitung, a stock corporation organized under the laws of the Federal Republic of Germany, and its successors.
Section 1.5 Consultation.
The term "Consultation" shall include within its meaning the good faith attempt by the Depositary to discuss, if practicable, the relevant issue in a timely manner with a person employed by the Company reasonably believed by the Depositary to be empowered by the Company to engage in such discussion on behalf of the Company.
Section 1.6 Custodian.
The term "Custodian" shall mean the Frankfurt/Main office of DG Bank Deutsche Genossenschaftsbank, as custodian and agent of the Depositary for the purposes of this Deposit Agreement, and any other firm or corporation which may hereafter be appointed by the Depositary pursuant to the terms of Section 5.5, as substitute or additional custodian or custodians hereunder, as the context shall require and shall also mean all of them collectively.
Section 1.7 Deliver, Delivery.
The terms "deliver" and "delivery" shall mean, when used in respect of American Depositary Shares, Receipts, Deposited Securities or Shares, either physical delivery of the certificate representing such security or electronic delivery of such security by means of book-entry transfer.
Section 1.8 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be amended from time to time in accordance with the provisions hereof.
Section 1.9 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking corporation, and any successor as depositary hereunder. The term "Corporate Trust Office", when used with respect to the Depositary, shall mean the office of the Depositary which at the date of this Deposit Agreement is 101 Barclay Street, New York, New York 10286.
Section 1.10 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such time deposited or deemed to be deposited under this Deposit Agreement and any and all other securities, property and cash received by the Depositary or the Custodian on behalf of the Owners in respect thereof and at such time held hereunder, subject as to cash to the provisions of Section 4.5.
Section 1.11 Dollars; DM.
The term "Dollars" shall mean United States dollars. The term "DM" shall mean the lawful currency of the Federal Republic of Germany.
Section 1.12 Effective Date.
The term "Effective Date" shall mean 5:00 p.m. on June 23, 2000 on which the ratio covered by Section 1.1(b) becomes effective.
Section 1.13 Foreign Currency.
The term "Foreign Currency" shall mean any currency other than Dollars.
Section 1.14 Germany.
The term "Germany" shall mean the Federal Republic of Germany, and the term "German" shall mean of or relating to the Federal Republic of Germany.
Section 1.15 Holder.
The term "Holder" shall mean any person who has a beneficial interest in any Receipt or American Depositary Shares.
Section 1.16 Owner.
The term "Owner" shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose.
Section 1.17 Receipts.
The term "Receipts" shall mean the American Depositary Receipts, substantially in the form of Exhibit A hereto, issued hereunder evidencing American Depositary Shares. A Receipt may evidence any whole number of American Depositary Shares.
Section 1.18 Registrar.
The term "Registrar" shall mean any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register Receipts and transfers of Receipts and to countersign Receipts as herein provided and shall include the Depositary and any co-Registrars appointed by the Depositary for such purpose.
Section 1.19 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts representing such Shares, which are acquired directly or indirectly from the Company or its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a transaction or chain of transactions not involving any public offering or which are subject to resale limitations under Regulation D under the Securities Act of 1933 or both, or which are
held by an officer, director (or persons performing similar functions) or other affiliate of the Company, or which are subject to other restrictions on sale or deposit under the laws of the United States or the Federal Republic of Germany, or under a shareholder agreement or the Articles of Association of the Company.
Section 1.20 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities Act of 1933, as from time to time amended.
Section 1.21 Shares.
The term "Shares" shall mean Ordinary Shares of the Company, without nominal value, heretofore or hereafter validly issued and outstanding and fully paid and nonassessable or interim certificates representing such Shares; provided, however, that if there shall occur any change in nominal value (including without limitation, the restatement of nominal value in any other currency), a split-up or consolidation or other reclassification or, upon the occurrence of an event described in Section 4.8, an exchange or conversion in respect of the Shares, the term "Shares" shall thereafter mean the successor securities resulting from such change in nominal value, split-up or consolidation or such other reclassification or such exchange or conversion.
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
Section 2.1 Form and Transferability of Receipts.
Subject to the requirements of any applicable rule or regulation of any securities market upon which the American Depositary Shares may be traded, definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter
provided. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have been 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. The Registrar shall maintain books on which each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered. Receipts bearing the manual or facsimile signature of a duly authorized signatory of the Depositary or Registrar who was at any time a proper signatory of the Depositary or Registrar, as the case may be, shall bind the Depositary or the Registrar, as the case may be, notwithstanding that such signatory has ceased to hold such office prior to the execution and delivery of such Receipts or did not hold such office on the date of issuance of such Receipts.
The Receipts may, and upon request of the Company shall, be endorsed with or have incorporated in the text thereof such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or as may be required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange or over-the-counter market upon which American Depositary Shares may be listed or traded or to conform with any custom and usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date or manner of issuance of the underlying Deposited Securities or otherwise.
The Receipts shall bear a CUSIP number that is different from any CUSIP number that is or may be assigned to any other depositary receipt facility relating to the Shares.
Title to a Receipt (and to the American Depositary Shares evidenced thereby), when properly endorsed or accompanied by proper instruments of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable instrument under the laws of the State of New York; provided, however, that the Company and the Depositary, notwithstanding any notice to the contrary, may treat the Owner thereof as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes, and neither the Depositary nor the Company will have any obligation or be subject to any liability under this Deposit Agreement to any holder of a Receipt, unless such holder is the Owner thereof.
Section 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of rights to receive Shares may be deposited by delivery or transfer thereof to an account maintained by any Custodian hereunder for such purpose, accompanied by any appropriate instrument or instruments of transfer, or endorsement, in form satisfactory to the Custodian, and any dividend coupons for dividends to be paid in the future and rights to receive such dividend coupons or appropriate evidence thereof, together with all such certifications as may be required by the Depositary or the Custodian in accordance with the provisions of this Deposit Agreement. If the Depositary so requires, such person shall also deliver a written order directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order, a Receipt or Receipts for the number of American Depositary Shares representing such deposit. 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. If required
by the Depositary and provided that no applicable German law is violated thereby, Shares presented for deposit at any time shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for the prompt transfer to the Custodian of the right to receive any dividend, the right to subscribe for additional Shares or any other securities or to receive other property or the right to vote which any person depositing the Shares has or may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to deposit Shares, and for the account of such person, the Depositary may receive certificates for Shares to be deposited, together with the other instruments herein specified, for the purpose of forwarding such Share certificates to the Custodian for deposit hereunder.
Deposited Securities shall be held by the Depositary or by the Custodian for the account and to the order of the Depositary as the legal owner of the Deposited Securities at the Frankfurt/Main office of the Custodian or at Deutsche Borse Clearing AG, the central securities clearing and deposit bank in Germany which holds all share certificates representing the shares of German stock corporations traded on a German stock exchange, or at such other place or places as the Depositary shall determine following the prior written consent of the Company. The Depositary agrees to instruct the Custodian to place all Shares accepted for deposit under this Deposit Agreement into segregated accounts separate from any Shares of the Company that may be held by such Custodian under any other depositary receipt facility relating to the Shares.
Section 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2 hereunder, together with the other documents required as specified in Section 2.2 above, such Custodian shall notify the Depositary of such deposit and the person or persons to
whom or upon whose written order a Receipt or Receipts are deliverable in respect thereof and the number of American Depositary Shares to be evidenced thereby. Such notification shall be made by mail or, at the request, risk and expense of the person making the deposit, by air courier, cable, telex or facsimile transmission. Upon receiving such notice from such Custodian, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver at its Corporate Trust Office, to or upon the order of the person or persons named in the notice delivered to the Depositary, a Receipt or Receipts, registered in the name or names requested by such person or persons and evidencing in the aggregate the number of American Depositary Shares to which such person or persons are entitled, but only upon payment to the Depositary of the fees of the Depositary for the execution and delivery of such Receipt or Receipts as provided in Section 5.9 and of all taxes and governmental charges and fees payable in connection with such deposit and the transfer of the deposited Shares.
Section 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register transfers of Receipts on its transfer books from time to time, upon any surrender at the Corporate Trust Office of the Depositary of a Receipt, by the Owner in person or by a duly authorized attorney, properly endorsed 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 Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto, subject to receipt of any certifications by such person as the Depositary or the Company may require in order to comply with applicable laws.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary upon the written request or with the approval of the Company may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of Receipts at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Owners or persons entitled to Receipts and will be entitled to protection and indemnity to the same extent as the Depositary.
Section 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a Receipt for the purpose of withdrawal of a whole number of Deposited Securities represented by the American Depositary Shares evidenced by such Receipt, and upon payment of the fee of the Depositary for the surrender of Receipts as provided in Section 5.9 and payment of all taxes and governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Articles of Association of the Company, the Deposited Securities and applicable law, the Owner of such Receipt shall be entitled to due assignment, transfer and delivery of all right, title, legal ownership and interest, to it or upon its order, of the amount of such whole number of Deposited Securities at the time represented by the American Depositary Shares evidenced by such Receipt 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 such Owner or as ordered by it or by certificates properly endorsed or accompanied by proper instruments of transfer to such Owner or as ordered by it, subject to the provisions of the Articles of Association of the Company or (ii) delivery or transfer to an account
through the facilities of Clearstream International, or Morgan 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) delivery of any other securities, property and cash to which such Owner is then entitled in respect of such Receipts to such Owner or as ordered by it. Such delivery shall be made, as hereinafter provided, without unreasonable delay.
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 thereof shall execute and deliver to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in such order. Thereupon the Depositary shall direct the Custodian to deliver at the Frankfurt/Main office of such Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and conditions of this 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.
At the request, risk and expense of any Owner so surrendering a Receipt, and for the account of such Owner, the Depositary shall direct the Custodian to forward any cash or other property (other than rights) comprising, and forward a certificate or certificates and other proper documents of title for, the Deposited Securities represented by the American Depositary Shares evidenced by such Receipt to the Depositary for delivery at the Corporate Trust Office of the Depositary. Such direction shall be given by
mail or, at the request, risk and expense of such Owner, by air courier, cable, telex or facsimile transmission.
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 Section 2.5, 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.
Section 2.6 Limitations on Execution and Delivery, Transfer and Surrender of Receipts.
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, 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 herein provided, (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 this Deposit Agreement, including, without limitation, this Section 2.6.
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 this Deposit Agreement, or the Articles of Association of the Company, or for any other reason, subject to the provisions of the following sentence. Notwithstanding any other provision of this Deposit Agreement or the Receipts, the surrender of outstanding Receipts and withdrawal of Deposited Securities may not be suspended, except as required in connection with (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, neither the Depositary nor the Custodian shall knowingly accept for deposit under this 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. The Depositary will, and will instruct the Custodian to, comply with written instructions of the Company not to accept for deposit under this Deposit Agreement any Shares identified in such instructions and under such circumstances as may reasonably be specified in such instructions in order to facilitate the Company's compliance with U.S. securities laws.
Section 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with the Depositary a request for such execution and delivery before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser, (b) deposited with the Depositary a sufficient indemnity bond and (c) satisfied any other reasonable requirements imposed by the Depositary.
Section 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary. Cancelled Receipts shall not be entitled to any benefits under this Deposit Agreement or be valid or enforceable for any purpose. The Depositary is authorized to destroy Receipts so cancelled.
Section 2.9 Pre-Release of Receipts.
Notwithstanding Section 2.3 hereof, the Depositary may execute and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 (a "Pre-Release") unless the Company requests the Depositary to cease doing so. The Depositary may, pursuant to Section 2.5, 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 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 hereunder; 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
hereunder 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 hereunder).
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 this Section 2.9.
Section 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all Receipts surrendered and Deposited Securities withdrawn under Section 2.5, of substitute Receipts delivered under Section 2.7 and of Receipts cancelled or destroyed under Section 2.8, in keeping with procedures ordinarily followed by stock transfer agents located in The City of New York.
3. CERTAIN OBLIGATIONS OF HOLDERS AND OWNERS OF RECEIPTS.
Section 3.1 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 (a) to file with the Depositary or the Custodian such proof of (i) citizenship or residence, (ii) exchange control approval and payment of all taxes and other governmental charges, (iii) legal or beneficial ownership of Receipts, Deposited Securities and other securities and the nature of such ownership or (iv) compliance with all applicable laws, regulations and provisions of or governing Deposited Securities and the terms of this Deposit Agreement, or (v) other information and (b) 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.
Section 3.2 Liability of Owner or Holder for Taxes.
If any tax or other governmental charge shall become payable with respect to any Receipt or any Deposited Securities represented by any Receipt, such tax or other governmental charge shall be payable by the Owner or Holder of such Receipt to the Depositary. The Depositary may and at the request of the Company shall refuse to effect any registration of transfer of such Receipt (or any split-up or combination thereof) 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 or Holder thereof any part or all of the Deposited Securities represented by the American Depositary Shares evidenced by such 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 of such Receipt shall remain liable for any deficiency.
Section 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this 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.
Section 3.4 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 Wertpapierhandel) 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.
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 will result in the withholding of voting rights and the rights to receive dividends or other payments in respect of the Shares represented by such American Depositary Shares for so long as such failure continues.
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.
Section 3.5 Disclosure of Beneficial Ownership of Receipts.
The Company and the Depositary may from time to time request Owners and Holders or former Owners and 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 or Holder agrees to provide any such information reasonably requested by the Company or the Depositary pursuant to this Section 3.5 and such agreement shall survive any disposition of such Owner's or Holder's interest in Shares or Receipts. The Depositary agrees to use its reasonable efforts to comply with written directions received from the Company requesting that the Depositary forward any such request to such Owners and to the last known address, if any, of such former Owners and to forward to the Company any responses to such requests received by the Depositary, and to use its reasonable efforts, at the Company's request, to assist the Company in obtaining such information with respect to the American Depositary Shares, provided that nothing herein shall be interpreted as obligating the Depositary to provide or obtain any such information not provided to the Depositary by such current or former Owners or Holders.
4. THE DEPOSITED SECURITIES.
Section 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash distribution on any Deposited Securities, the Depositary shall, subject to the provisions of Section 4.5, 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) to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively; provided, however, that in the event that the Company or the Depositary shall be required to withhold and does withhold from such cash dividend or such other cash distribution an amount on account of taxes or other governmental charges, the amount distributed to the Owner 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 Mark and the Company shall be responsible for establishing the appropriate rate of distribution and the timely delivery of funds. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The Company or its agent will remit to the appropriate governmental agency in Germany all amounts withheld and owing to such agency. The Depositary or its agent will remit to the appropriate governmental agency in the United States all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies,
and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Owners of Receipts.
Section 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever the Custodian or the Depositary shall receive any distribution other than a distribution described in Sections 4.1, 4.3 or 4.4, the Depositary shall, as promptly as practicable, cause the securities or property received by it or by the Custodian to be distributed to the Owners 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 entitled thereto, or if for any other reason (including, but not limited to, any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act of 1933 in order to be distributed to Owners) 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 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) shall be distributed by the Depositary to the Owners entitled thereto as in the case of a distribution received in cash pursuant to Section 4.1.
To the extent such securities or property, or the net proceeds thereof, are not effectively distributed to Owners as provided herein, the same shall constitute Deposited Securities and each American Depositary Share shall thereafter represent its proportionate interest in such securities, property or net proceeds.
Section 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend in, or free distribution of, Shares, the Depositary may, and upon the request of the Company shall, 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 and the payment of fees of the Depositary as provided in Section 5.9 hereof. In lieu of delivering Receipts for fractional American Depositary Shares in any such case, the Depositary shall 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 described in Section 4.1 hereof. 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 such 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 of 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) shall be distributed by the Depositary to the Owners entitled thereto as in the case of a distribution received in cash pursuant to Section 4.1.
To the extent such Shares, or the net proceeds thereof, are not effectively distributed to Owners as provided herein, 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.
Section 4.4 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 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 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 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 for such rights 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 this Deposit Agreement, and shall, pursuant to Section 2.3 of this 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 or 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 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this 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 proceeds, as in the case of a distribution received in cash pursuant to Section 4.1.
(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 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.
Section 4.5 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 Section 4.1 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.
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 distribute the balance of the Foreign Currency (or an appropriate document evidencing the right to receive such 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.
Section 4.6 Fixing of Record Date.
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 who shall be (i) entitled to 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 and to the other terms and conditions of this Deposit Agreement, 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 hereunder 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.
Section 4.7 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 hereof (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.
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 four (4) 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 Section 4.7, 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.
Anything in this Deposit Agreement to the contrary notwithstanding, in the event that the Proxy Bank shall fail to supply the four (4) Recommendation to the Depositary at least twenty-one (21) calendar days prior to any meeting of Voters 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.
Section 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 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 this 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 dividend in 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 Section 4.8 in respect of the Deposited Securities, the Depositary shall give notice thereof in writing to all Owners. Notwithstanding the foregoing, in the event that any security so received may not be lawfully distributed to
some or all Owners, the Depositary may, and upon the request of the 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.
Section 4.9 Reports.
The Depositary shall make available for inspection by Owners 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 receipt of such reports furnished by the Company pursuant to Section 5.6, the Depositary shall promptly send copies to the Owners. Any such reports and communications, including 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 Depositary shall furnish the Company with copies of reports it furnishes to the Commission pursuant to undertakings entered into by the Depositary with the Commission. In addition, when such information is furnished to the Commission, the Depositary shall also furnish the Company with the total number of Shares deposited at the account maintained by the Custodian for the purpose of this Deposit Agreement at the end of the period covered by such report.
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.
Section 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of American Depositary Shares by all persons in whose names Receipts are registered on the books of the Depositary and a list of all such persons who received such Receipts pursuant to a Pre-Release under Section 2.9 hereof.
Section 4.11 Withholding.
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 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 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 this 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.
The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file any necessary reports with governmental authorities and agencies. 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.
5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
Section 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain in the Borough of Manhattan, The City of New York, facilities for the execution and delivery, registration, registration of transfers and surrender of Receipts in accordance with the provisions of this Deposit Agreement.
The Depositary shall 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, provided that such inspection
shall not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this 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 hereunder or at the request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more stock exchanges in the United States, NASDAQ or any other over-the-counter market, the Depositary shall act as Registrar or appoint a Registrar or one or more co-Registrars for registry of such Receipts in accordance with any requirements of such exchange or exchanges or markets.
Section 5.2 Prevention or Delay in Performance by the Depositary or the Company.
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 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 this 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 any 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 this 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 this Deposit Agreement. Where, by the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of this Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of this Deposit Agreement, or for any other reason, such distribution or offering may not be
made available to Owners, 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.
Section 5.3 Obligations of the Depositary, the Custodian and the Company.
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 this 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 hereunder 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 this Deposit Agreement to the Depositary, except that it agrees to perform its obligations specifically set forth in this 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 this Deposit Agreement to the Custodian or any agent of the Depositary or the Custodian, except under Section 5.8 of this 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 this 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 this 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 this Deposit Agreement, and no implied covenants or obligations shall be read into this 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 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 this Deposit Agreement.
Section 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder 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 hereinafter provided.
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 hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; but such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, 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 this Deposit Agreement or the Receipts reasonably requested by such
successor. Any such successor depositary shall promptly mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
Section 5.5 The Custodians.
The Depositary has appointed DG Bank Deutsche Genossenschaftsbank, and may appoint from time to time one or more additional agents, to act for it as Custodian hereunder. Any such Custodian shall be subject at all times and in all respects to the directions of the Depositary and shall be responsible solely to it. Any Custodian may resign and be discharged from its duties hereunder by written notice of such resignation delivered to the Depositary at least 30 days prior to the date on which such resignation is to become effective. If upon such resignation there shall be no Custodian acting hereunder, the Depositary shall, promptly after receiving such notice and after Consultation with the Company when practicable, appoint a substitute custodian that is organized under the laws of and domiciled in Germany which shall thereafter be a Custodian hereunder. 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 hereunder and appoint a substitute Custodian, upon Consultation with the Company. Whenever the Depositary in its reasonable discretion determines 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 hereunder. Upon demand of the Depositary any Custodian shall deliver such of the Deposited Securities held by it as are requested of it to any other Custodian or such substitute or additional custodian or custodians. Each such substitute or additional custodian shall deliver to the Depositary, forthwith upon its appointment, an acceptance of such appointment satisfactory in form and substance to the Depositary. Immediately upon any such change, the Depositary
shall give notice in writing to the Company to all Owners and to each other Custodian, if any, of the name, address and appointment of any custodian not named in the Receipts.
Upon the appointment of any successor depositary hereunder, each Custodian then acting hereunder shall forthwith become, without any further act or writing, the agent hereunder of such successor depositary and the appointment of such successor depositary shall in no way impair the authority of each Custodian hereunder; but the successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority as agent hereunder of such successor depositary.
Section 5.6 Notices and Reports.
On or before the first date on which the Company gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such holders, or of the taking of any action in respect of any cash or other distributions or the offering of any rights in respect of Deposited Securities, the Company agrees to transmit to the Depositary and the Custodian a copy of the notice thereof in the form given or to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English if not already in English, to the extent required pursuant to any regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian of such notices and any other reports and communications which are made generally available by the Company to holders of its Shares. The Depositary will arrange for the mailing of copies of such notices, reports and communications to all Owners. The Company will timely provide the Depositary with the quantity of such notices, reports, and communications, as
requested by the Depositary from time to time, in order for the Depositary to effect such mailings.
Section 5.7 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution to Owners pursuant to the Deposit Agreement of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities convertible into Shares, or (4) rights to subscribe for such securities, (each a "Distribution") the Company will promptly furnish to the Depositary a written opinion from U.S. counsel for the Company, which counsel shall be reasonably satisfactory to the Depositary, stating whether or not the Distribution requires a registration statement under the Securities Act of 1933 to be in effect prior to making such Distribution available to Owners entitled thereto. If in the opinion of such counsel a registration statement is required, such counsel shall furnish to the Depositary a written opinion as to whether or not there is a registration statement in effect which will cover such Distribution. Nothing in this Deposit Agreement shall create, or shall be construed to create any obligation on the part of the Company to file any registration statement or to endeavor to have such a registration statement declared effective.
The Company agrees with the Depositary that neither the Company nor any company controlled by, controlling or under common control with the Company will at any time deposit any Shares pursuant to this Deposit Agreement, either originally issued or previously issued and reacquired by the Company or any such affiliate, unless a registration statement is in effect as to such Shares under the Securities Act of 1933.
Section 5.8 Indemnification.
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 (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed or omitted, in accordance with the provisions of this Deposit Agreement and of the 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 hereof) of a Receipt or Receipts in accordance with Section 2.9 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; 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 Company), as applicable, furnished in writing and not materially changed or altered by the Company expressly for use in any of the foregoing documents, or, (ii) if such information is provided, the failure to state a material fact necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its officers, directors, employees, agents and affiliates and hold each of them harmless from any loss, liability or expense (including, but not limited to, reasonable fees and expenses of counsel) 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.
If any action, claim or proceeding shall be brought or threatened to be brought against any party in respect of which indemnity may be sought pursuant to this Section 5.8 (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 Indemnified Party becomes aware of the same) notify the party against whom indemnity may be sought (the "Indemnifying Party") in writing of such action, claim or proceeding, 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 if the Indemnified Party reasonably believes that there may be legal defenses available to it which are different from or in addition to those available to the Indemnifying Party it may retain counsel at its expense and participate in such defense. In all circumstances, all 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 to the provisions of the indemnity contained in this Section 5.8. Each party shall, to the extent reasonable, practicable and consistent with such party's legal obligations and responsibilities, 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 this Section 5.8. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, 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 or investigation thereof. 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 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 Section 5.8 shall survive the termination of this Deposit Agreement and the succession or substitution of any indemnified person. No Owner or other holder of Receipts shall have any rights under this Section 5.8
Section 5.9 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), 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 nominee
or the Custodian or its nominee on the making of deposits or withdrawals
hereunder, (3) such air courier, cable, telex and facsimile transmission
expenses as are expressly provided in this Deposit Agreement, (4) such expenses
as are incurred by the Depositary in the conversion of Foreign Currency pursuant
to Section 4.5, (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, (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 hereof, except for any distribution of cash dividends and (7) a fee for the distribution of securities pursuant to Section 4.2, 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 Section 2.9 hereof, may own and deal in any class of securities of the Company and its affiliates and in Receipts.
Section 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by the laws or regulations governing the Depositary unless the Company requests that such papers be retained for a longer period or turned over to the Company or to a successor depositary.
Section 5.11 Exclusivity.
Subject to Section 5.4 of this Agreement, the Company agrees not to appoint any other depositary for issuance of American Depositary Receipts so long as The Bank of New York is acting as Depositary hereunder.
The Depositary agrees with the Company not to establish any unsponsored American depositary receipt program for any securities issued by the Company so long as the Depositary is acting hereunder.
6. AMENDMENT AND TERMINATION.
Section 6.1 Amendment.
The form of the Receipts and any provisions of this 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, 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 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.
Section 6.2 Termination.
The Depositary shall at any time at the direction of the Company terminate this 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 this 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 Section 5.4. 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 5.9, 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 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 this 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 this 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 referred to in Section 5.9, any expenses for the account of the Owner of such Receipts in accordance with the terms and conditions of this 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 hereunder and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, 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 this 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 this Deposit Agreement and any applicable taxes or governmental charges)
and its obligations to the Company under Section 5.8 hereof. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.8 and 5.9 hereof.
7. MISCELLANEOUS.
Section 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Holder or Owner of a Receipt during business hours.
Section 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.
Section 7.3 Severability.
In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Owners as Parties; Binding Effect.
The Holders and Owners of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance thereof.
Section 7.5 Notices.
Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail or air courier, or by facsimile transmission confirmed by letter, addressed to SAP Aktiengesellschaft Systeme, Anwendungen, Produkte in der Datenverarbeitung, Neurottstra(beta)e 16, D-69190, Walldorf, Federal Republic of Germany, facsimile number: 011-49-6227-7-42060 or any other place to which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
air courier, or by facsimile transmission confirmed by letter, addressed to The
Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, facsimile number: 212-571-3050 or
any other place to which the Depositary may have transferred its Corporate Trust
Office.
Any and all notices to be given to any Owner shall be deemed to have been duly given if personally delivered or sent by mail or air courier or by cable, telex or facsimile transmission confirmed by letter, addressed to such Owner at the address of such Owner as it appears on the transfer books for Receipts of the Depositary, or, if such Owner shall have filed with the Depositary a written request that notices intended for such Owner be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or air courier or by cable, telex or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box or, in the case of a letter sent by air courier, with the air courier company. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it, notwithstanding that such cable, telex or facsimile transmission shall not subsequently be confirmed by letter as aforesaid.
Section 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York, without regard to the principles of conflicts of laws thereof.
Section 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the Company and the Depositary each agrees that it will not exercise any rights it has under this 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 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.
Section 7.8 Assignment.
Unless otherwise agreed in writing, this Deposit Agreement may not be assigned by either the Company or the Depositary.
IN WITNESS WHEREOF, SAP AKTIENGESELLSCHAFT SYSTEME, ANWENDUNGEN, PRODUKTE IN DER DATENVERARBEITUNG and THE BANK OF NEW YORK have duly executed this agreement as of the day and year first set forth above and all Owners shall become parties hereto upon acceptance by them of Receipts issued in accordance with the terms hereof.
SAP AKTIENGESELLSCHAFT SYSTEME, ANWENDUNGEN,
PRODUKTE IN DER DATENVERARBEITUNG
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: _________________________________________
Name:
Title:
Exhibit A
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
(as defined in the Deposit Agreement)
and one fourth (1/4) of one Share,
thereafter)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR AMERICAN DEPOSITARY SHARES REPRESENTING
ORDINARY 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 Ordinary 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 prior to the Effective Date (as defined in the Deposit Agreement) and one fourth (1/4) of one Share thereafter, which is either deposited or subject to deposit under the Deposit Agreement (as hereinafter defined) at the Frankfurt/Main office of either DG Bank Deutsche Genossenschaftsbank or Dresdner Bank (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 101 Barclay Street, New York, N.Y. 10286, and its principal executive office is located at One Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
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 June 26, 1998, as further amended and restated as of June 23, 2000 and as further amended and restated as of __________, 2001 (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) delivery or
transfer to an account through the facilities of Clearstream International or
Morgan 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 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.
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 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 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 Sections 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, 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 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 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 at the public reference facilities maintained by the Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549.
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 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 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 Mark and the Company shall be responsible for establishing the appropriate rate of 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 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 of 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 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.
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 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.
(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 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 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.
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 four (4) 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.
Anything in the 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 the 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 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.
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 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 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 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 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 Wertpapierhandel) 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.
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 will result in the withholding of voting rights and the rights to receive dividends or other payments in respect of the Shares represented by such American Depositary Shares for so long as such failure continues.
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 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.