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SAP
AG
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
As
Depositary
AND
OWNERS
AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as of November __, 2009
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ARTICLE
1.
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DEFINITIONS
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2
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SECTION
1.1
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AMERICAN
DEPOSITARY SHARES
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2
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SECTION
1.2
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ARTICLE;
SECTION
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2
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SECTION
1.3
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COMMISSION
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2
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SECTION
1.4
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COMPANY
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2
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SECTION
1.5
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CONSULTATION
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3
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SECTION
1.6
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CUSTODIAN
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3
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SECTION
1.7
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DELIVER,
DELIVERY
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3
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SECTION
1.8
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DEPOSIT
AGREEMENT
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3
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SECTION
1.9
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DEPOSITARY'S
CORPORATE TRUST OFFICE
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3
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SECTION
1.10
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DEPOSITED
SECURITIES
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4
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SECTION
1.11
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DOLLARS;
EURO
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4
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SECTION
1.12
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DRS/PROFILE
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4
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SECTION
1.13
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DTC
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4
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SECTION
1.14
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FOREIGN
CURRENCY
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5
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SECTION
1.15
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GERMANY
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5
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SECTION
1.16
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HOLDER
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5
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SECTION
1.17
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OWNER
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5
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SECTION
1.18
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RECEIPTS
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5
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SECTION
1.19
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REGISTRAR
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5
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SECTION
1.20
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RESTRICTED
SECURITIES
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6
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SECTION
1.21
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SECURITIES
ACT OF 1933
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6
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SECTION
1.22
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SHARES
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6
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ARTICLE
2.
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FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS
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7
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SECTION
2.1
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FORM
AND TRANSFERABILITY OF RECEIPTS
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7
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SECTION
2.2
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DEPOSIT
OF SHARES
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8
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SECTION
2.3
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EXECUTION
AND DELIVERY OF RECEIPTS.
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10
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SECTION
2.4
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TRANSFER
OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS
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10
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SECTION
2.5
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SURRENDER
OF RECEIPTS AND WITHDRAWAL OF SHARES
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12
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SECTION
2.6
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LIMITATIONS
ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
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14
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SECTION
2.7
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LOST
RECEIPTS, ETC.
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15
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SECTION
2.8
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CANCELLATION
AND DESTRUCTION OF SURRENDERED RECEIPTS
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15
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SECTION
2.9
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PRE-RELEASE
OF RECEIPTS
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16
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SECTION
2.10
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MAINTENANCE
OF RECORDS
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17
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ARTICLE
3.
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CERTAIN
OBLIGATIONS OF HOLDERS AND OWNERS OF RECEIPTS
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17
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SECTION
3.1
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FILING
PROOFS, CERTIFICATES AND OTHER INFORMATION
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17
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SECTION
3.2
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LIABILITY
OF OWNER OR HOLDER FOR TAXES
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18
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SECTION
3.3
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WARRANTIES
ON DEPOSIT OF SHARES
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19
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SECTION
3.4
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COMPLIANCE
WITH LAW
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19
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SECTION
3.5
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DISCLOSURE
OF BENEFICIAL OWNERSHIP OF RECEIPTS
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20
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ARTICLE
4.
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THE
DEPOSITED SECURITIES
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20
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SECTION
4.1
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CASH
DISTRIBUTIONS
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20
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SECTION
4.2
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DISTRIBUTIONS
OTHER THAN CASH, SHARES OR RIGHTS
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22
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SECTION
4.3
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DISTRIBUTIONS
IN SHARES
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22
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SECTION
4.4
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RIGHTS
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23
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SECTION
4.5
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CONVERSION
OF FOREIGN CURRENCY
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26
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SECTION
4.6
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FIXING
OF RECORD DATE
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27
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SECTION
4.7
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VOTING
OF DEPOSITED SECURITIES
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28
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SECTION
4.8
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CHANGES
AFFECTING DEPOSITED SECURITIES
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30
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SECTION
4.9
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REPORTS
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31
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SECTION
4.10
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LISTS
OF OWNERS
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32
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SECTION
4.11
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WITHHOLDING
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32
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ARTICLE
5.
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THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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33
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SECTION
5.1
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MAINTENANCE
OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY
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33
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SECTION
5.2
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PREVENTION
OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE COMPANY
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34
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SECTION
5.3
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OBLIGATIONS
OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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34
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SECTION
5.4
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RESIGNATION
AND REMOVAL OF THE DEPOSITARY
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36
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SECTION
5.5
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THE
CUSTODIANS
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37
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SECTION
5.6
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NOTICES
AND REPORTS
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38
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SECTION
5.7
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DISTRIBUTION
OF ADDITIONAL SHARES, RIGHTS, ETC.
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39
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SECTION
5.8
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INDEMNIFICATION
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40
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SECTION
5.9
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CHARGES
OF DEPOSITARY
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42
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SECTION
5.10
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RETENTION
OF DEPOSITARY DOCUMENTS
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43
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SECTION
5.11
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EXCLUSIVITY
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44
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ARTICLE
6.
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AMENDMENT
AND TERMINATION
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44
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SECTION
6.1
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AMENDMENT
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44
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SECTION
6.2
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TERMINATION
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45
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ARTICLE
7.
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MISCELLANEOUS
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46
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SECTION
7.1
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COUNTERPARTS
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46
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SECTION
7.2
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NO
THIRD PARTY BENEFICIARIES
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46
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SECTION
7.3
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SEVERABILITY
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46
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SECTION
7.4
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HOLDERS
AND OWNERS AS PARTIES; BINDING EFFECT
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47
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SECTION
7.5
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NOTICES
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47
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SECTION
7.6
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GOVERNING
LAW
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48
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SECTION
7.7
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COMPLIANCE
WITH U.S. SECURITIES LAWS
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48
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SECTION
7.8
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ASSIGNMENT
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49
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SECTION
7.9
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OUTSTANDING
RECEIPTS
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49
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SECTION
7.10
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UNDERTAKING
OF DEPOSITARY
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50
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AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT
AGREEMENT
dated as of November , 2009 among SAP AG,
a stock corporation organized under the laws of the Federal Republic of Germany
(the “Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New
York corporation (the “Depositary”), and all Owners and Holders from
time to time of American Depositary Receipts issued hereunder (the “Deposit
Agreement”). Capitalized terms used herein are defined in Article 1
or elsewhere in this Deposit Agreement or the form of American Depositary
Receipt set forth in Exhibit A.
W I T N E S S E T H
:
WHEREAS
, the Company and the
Depositary entered into the Amended and Restated Deposit Agreement on December
3, 2004 in connection with the appointment of the Depositary as successor
Depositary (the “Original Amended and Restated Deposit Agreement”);
WHEREAS
, the Company and the
Depositary entered into Amendment No.1 to the Original Amended and
Restated Deposit Agreement on December 21, 2006 (“Amendment No.
1”);
WHEREAS
, the Company and the
Depositary desire to enter into this further amended and restated Deposit
Agreement to amend and restate certain provisions of the Original Amended and
Restated Deposit Agreement, as amended by Amendment No. 1; 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 and Exhibit A;
NOW, THEREFORE
, in
consideration of the premises, it is agreed by and between the parties hereto as
follows:
ARTICLE
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 one Share until
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.
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 AG, 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 Deutsche Bank AG, Eschborn, Domestic Custody Services
Germany, Alfred-Herrhausen-Allee 16-24, Eschborn 65760, Germany, 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, as appropriate, including, without
limitation, through DRS/Profile. With respect to DRS/Profile ADRs,
the terms "
execute
", "
issue
", "
register
", "
surrender
", "
transfer
" or "
cancel
" refer to
applicable entries or movements to or within DRS/Profile.
Section
1.8
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's Corporate Trust
Office
.
The
Depositary's "Corporate Trust Office" means at any particular time the office of
the Depositary in The City of New York at which its depositary receipt business
is then administered. At the date of this Agreement the Depositary's
Corporate Trust Office is 60 Wall Street, New York, New York 10005, United
States of America.
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.
The term
"Dollars" shall mean United States dollars. The term "euro" shall mean the
lawful currency of the member states of the European Union that adopt the single
currency under the legislation of the European Union for European Monetary
Union.
Section
1.12
DRS/Profile.
The
term “DRS/Profile” shall mean the system for the uncertificated registration of
ownership of securities pursuant to which ownership of American Depositary
Shares is maintained on the books of the Depositary without the issuance of a
physical certificate and pursuant to which transfer instructions may be given to
allow for the automated transfer of ownership between the books of DTC and the
Depositary. Ownership of uncertificated American Depositary Shares
held in DRS/Profile are evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto.
Section
1.13 DTC.
The
term “DTC” shall mean The Depository Trust Company, the central book-entry
clearinghouse and settlement system for securities traded in the United States,
and any successor thereto. Participants within DTC are hereinafter
referred to as "DTC Participants".
Section
1.14
Foreign
Currency.
The term
"Foreign Currency" shall mean any currency other than Dollars.
Section
1.15
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
1.16
Holder.
The term
"Holder" shall mean any person who has a beneficial interest in any Receipt or
American Depositary Share(s).
Section
1.17
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
1.18
Receipts.
The term
"Receipts" shall mean the American Depositary Receipts, substantially in the
form of and having the terms and conditions set forth in (or in the case of
uncertificated American Depositary Shares, having the terms and conditions set
forth in) Exhibit A hereto, issued hereunder evidencing American Depositary
Shares. A Receipt may evidence any whole number of American Depositary
Shares. References to Receipts shall include physical certificated Receipts as
well as uncertificated American Depositary Shares issued through DRS/Profile,
unless the context otherwise requires.
Section
1.19
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
1.20
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
1.21
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.
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.
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ARTICLE
2.
|
FORM OF RECEIPTS,
DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS.
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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, certificated
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 certificated 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 in the case of
certificated Receipts, and each uncertificated Receipt issued through the
DRS/Profile, in either case as hereinafter provided and the transfer of each
such Receipt shall be registered. Receipts in certificated form bearing
the manual or facsimile signature of a duly authorized signatory of the
Depositary 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.
Notwithstanding
anything in this Deposit Agreement or in the Receipt to the contrary, to the
extent available by the Depositary, American Depositary Shares shall be
evidenced by uncertificated Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the Owner. Owners
and Holders shall be bound by the terms and conditions of this Deposit Agreement
and of the form of Receipt, regardless of whether their Receipts are
certificated or are issued in uncertificated form through
DRS/Profile.
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.
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 Eschborn office of the Custodian or at Deutsche
Börse 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, SWIFT, facsimile or electronic 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 in the case
of a certificated Receipt or accompanied by, or in the case of an uncertificated
Receipt issued through DRS/Profile receipt by the Depositary of, 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.
At the
request of an Owner, the Depositary shall, for the purpose of substituting a
certificated Receipt with an uncertificated Receipt issued through DRS/Profile,
or vice versa, execute and deliver a certificated Receipt or a DRS/Profile
statement, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or DRS/Profile statement,
as the case may be, substituted.
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
Banking, société anonyme, or Euroclear Bank S.A./N.V., 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 Eschborn 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.
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Section
2.6
|
Limitations on
Execution and Delivery, Transfer and Surrender of
Receipts.
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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 (which, in the discretion of the
Depositary may be issued through DRS/Profile unless specifically requested
otherwise) in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt. Before the Depositary shall execute and deliver a new
Receipt in substitution for a destroyed, lost or stolen Receipt, the 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 Depositary will limit
the number of Receipts involved in such Pre-Release Transactions at any one time
to thirty percent (30%) of the American Depositary Shares outstanding (excluding
from the denominator any Receipts outstanding as a result of Pre-Releases
), except to the extent that such limitation is exceeded as
a result of the withdrawal of Deposited Securities subsequent to the execution
and delivery of Pre-Released Receipts in compliance with such limitation;
provided
,
however
, that the
Depositary may, with the prior written consent of the Company, change such limit
from time to time and for a period of time specified by the Company;
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.
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ARTICLE
3.
|
CERTAIN OBLIGATIONS OF
HOLDERS AND OWNERS OF
RECEIPTS.
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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.
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 Financial Supervisory Authority (Bundesanstalt für
Finanzdienstleistungsaufsicht, BaFin) 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, 3, 5, 10, 15, 25, 30, 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 as 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.
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.
ARTICLE
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 euro 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 European Central Bank as of the date of receipt
of such currency) the number of euro received by the Depositary pursuant to such
dividend or distribution, in exchange for such euro 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) 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.
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.
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.
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 calendar days following the publication of the invitation to the
shareholders meeting in the German electronic Federal Gazette.
Voting rights may be exercised only in respect of whole American
Depositary Shares, or integral multiples thereof. Neither the Depositary
nor the Custodian shall 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 or the Custodian
exercise any voting discretion over any Shares or other 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.
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.
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ARTICLE
5.
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THE DEPOSITARY, THE
CUSTODIAN AND THE COMPANY.
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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 or any 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 exchanges or markets.
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Prevention or Delay in
Performance by the Depositary or the
Company.
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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.
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Section
5.3
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Obligations
of the Depositary, the Custodian and the
Company.
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Each of
the Company, its agents and their respective officers, employees and affiliates
assumes no obligation nor shall it be subject to any liability under 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 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 and 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 (provided that any such action or nonaction was in good
faith and without negligence) or the effect of any such vote.
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 Deutsche Bank AG, Eschborn, 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
calendar 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.
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,
wilful 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, wilful 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 maximum aggregate
service fee of U.S.$2.00 per 100 American Depositary Shares (or portion thereof)
per calendar year for the services performed by the Depositary in administering
and maintaining the Receipts program, including for processing any cash
dividends and other cash distributions made pursuant to the Deposit Agreement,
including but not limited to Sections 4.1 through 4.4 (which service fee shall
be assessed against Owners as of the record date or record dates set by the
Depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Owners for such service fee or by deducting
such service fee from one or more cash dividends or other cash
distributions)
, 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.
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 Deutsche Bank
Trust Company Americas 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.
ARTICLE
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) calendar 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 calendar 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 calendar 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.
ARTICLE
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
Owners and Holders as
Parties; Binding Effect.
The
Owners and Holders 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.
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, by facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary) confirmed by letter, addressed to SAP AG, Dietmar-Hopp-Allee
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 or electronic transmission confirmed by letter, addressed to
Deutsche Bank Trust Company Americas, 60 Wall Street, New York, New York 10005,
Attention: ADR Department, facsimile number: (212) 797 0327. 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 or
electronic 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, facsimile or
electronic 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, facsimile or electronic 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 (and any claims or disputes arising out of or
related thereto or to the transactions contemplated thereby or to the inducement
of any party to enter therein, whether for breach of contract, tortious conduct,
or otherwise and whether predicated on common law, statute or otherwise) shall
in all respects be governed by and construed in accordance with the laws of the
State of New York, including all matters of construction, validity and
performance, in each case without reference to any conflict of law rules that
might lead to the application of the laws of any other
jurisdiction. Each party to this Deposit Agreement further agrees
that the laws of the State of New York bear a reasonable relationship to this
Deposit Agreement and irrevocably and unconditionally waives, pursuant to
Section 5-1401 of the New York General Obligations Law, any objection to the
application of the laws of the State of New York to any action, suit or
proceeding arising out of this Deposit Agreement or the transactions
contemplated hereby and further irrevocably and unconditionally waives and
agrees not to plead or claim that any such action, suit or proceeding should not
be governed by the laws of the State of New York. This Deposit
Agreement has been negotiated, executed and delivered in the State of New
York.
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.
Unless
otherwise agreed in writing, this Deposit Agreement may not be assigned by
either the Company or the Depositary.
Section
7.9
Outstanding
Receipts.
Receipts
issued prior to the date hereof, which do not reflect the changes to the
Receipts effected hereby, do not need to be called in for exchange and may
remain outstanding until such time as the Holders thereof choose to surrender
them for any reason under this Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The
Company hereby instructs the Depositary to (i) promptly send notice of the
execution of the Deposit Agreement to all Owners and Holders of American
depositary receipts outstanding under the Deposit Agreement as of the date
hereof and (ii) inform all Owners and Holders of American depositary receipts
outstanding under the Deposit Agreement as of the date hereof that they have the
opportunity, but are not required, to exchange their Receipts for one or more
Receipts issued pursuant to this Deposit Agreement.
Owners
and Holders of Receipts issued pursuant to the Deposit Agreement issued prior to
the date hereof and outstanding as of the date hereof, shall, from and after the
date hereof, be deemed Owners and Holders of Receipts issued pursuant and be
subject to all of the terms and conditions of this Deposit Agreement, in all
respects;
provided
,
however
, that any
amendment effectuated by this Deposit Agreement that prejudices any substantial
existing right of Holders or Owners of Receipts issued under the Deposit
Agreement prior to the date hereof shall not become effective as to Owners and
Holders until thirty (30) calendar days after notice of the amendment
effectuated by this Deposit Agreement shall have been given to holders of
Receipts outstanding as of the date hereof.
Section
7.10
Undertaking of
Depositary.
The
Depositary hereby undertakes to promptly mail notice of its appointment as
Depositary under the Deposit Agreement to all Owners and Holders of Receipts
outstanding as of the date hereof.
IN
WITNESS WHEREOF, SAP AG and DEUTSCHE BANK TRUST COMPANY AMERICAS 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.
By:
______________________________________
Name: Dr.
Werner Brandt
Title:
Chief Financial Officer
By:
______________________________________
Name:
Michael Junge
Title:
General Counsel
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as Depositary
By:
______________________________________
Name:
Title:
By:
______________________________________
Name:
Title:
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
AMERICAN DEPOSITARY
SHARES
|
|
|
(Each American
Depositary Share
represents
one Share (as defined
in
the Deposit Agreement)
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES REPRESENTING
ORDINARY
SHARES,
WITHOUT
NOMINAL VALUE, OF
SAP
AG
(A
STOCK CORPORATION ORGANIZED UNDER THE LAWS OF
THE
FEDERAL REPUBLIC OF GERMANY)
Deutsche
Bank Trust Company Americas 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 AG, 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 Share, which is either
deposited or subject to deposit under the Deposit Agreement (as hereinafter
defined) with the Custodian, which at the date of execution of the Deposit
Agreement is Deutsche Bank AG, Eschborn, Domestic Custody Services Germany
(the "Custodian").
THE
DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS 60 WALL STREET, NEW YORK, N.Y.
10005
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 amended
and restated deposit agreement, dated as of November __, 2009 (as thereafter
amended from time to time, 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 Clearstream Banking, société anonyme or Euroclear Bank
S.A./N.V., 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.
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 in the case of a certificated Receipt 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.
At the
request of an Owner, the Depositary shall, for the purpose of substituting a
certificated Receipt with an uncertificated Receipt issued through DRS/Profile,
or vice versa, execute and deliver a certificated Receipt or a DRS/Profile
statement, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or DRS/Profile statement,
as the case may be, substituted.
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
.
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 maximum aggregate
service fee of U.S.$2.00 per 100 American Depositary Shares (or portion thereof)
per calendar year for the services performed by the Depositary in administering
and maintaining the Receipts program, including for processing any cash
dividends and other cash distributions made pursuant to the Deposit Agreement,
including but not limited to Sections 4.1 through 4.4 (which service fee shall
be assessed against Owners as of the record date or record dates set by the
Depositary during each calendar year and shall be payable at the sole discretion
of the Depositary by billing such Owners for such service fee or by deducting
such service fee from one or more cash dividends or other cash
distributions
) 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 Depositary will limit the number of
Receipts involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the American Depositary Shares outstanding (without giving
effect to Receipts outstanding as a result of Pre-Releases), except to the
extent that such limitation is exceeded as a result of the withdrawal of
Deposited Securities subsequent to the execution and delivery of Pre-Released
Receipts in compliance with such limitation;
provided
,
however
, that the
Depositary may, with the prior written consent of the Company, change such limit
from time to time;
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 Owner and Holder 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, or in the case of uncertificated
Receipts when issued through DRS/Profile, 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, as amended (the “Securities 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 100 F
Street, N.E., 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 euro 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
European Central Bank as of the date of receipt of such currency) the number of
euro received by the Depositary pursuant to such dividend or distribution, in
exchange for such euro and the Company shall be responsible for establishing the
appropriate rate of distribution and the timely delivery of
funds.