DEPOSIT AGREEMENT by and among ELSTER GROUP SE AND DEUTSCHE BANK TRUST COMPANY AMERICAS as Depositary, AND THE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER Dated as of [•], 2010
Exhibit 4.2
by and among
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of [•], 2010
DEPOSIT AGREEMENT,
dated as of , 2010, by and among (i) Elster Group SE, a
European public limited liability company (Societas Europaea, or SE) incorporated in the Federal
Republic of Germany (“Germany”) and organized under the laws of Germany and the European Union (the
“EU”), and its successors (the “Company”), (ii) Deutsche Bank Trust Company Americas, an indirect
wholly owned subsidiary of Deutsche Bank AG, acting in its capacity as depositary, and any
successor depositary hereunder (the “Depositary”), and (iii) all Holders and Beneficial Owners of
American Depositary Shares evidenced by American Depositary Receipts issued hereunder (all such
capitalized terms as hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company desires to establish an ADR facility with the Depositary to provide for
the deposit of the Shares and the creation of American Depositary Shares representing the Shares so
deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR facility upon the
terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American Depositary Shares issued
pursuant to the terms of this Deposit Agreement are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms of this Deposit
Agreement are listed on The New York Stock Exchange, Inc.; and
WHEREAS, the Administrative Board of the Company (or an authorized committee thereof) has duly
approved the establishment of an ADR facility upon the terms set forth in this Deposit Agreement,
the execution and delivery of this Deposit Agreement on behalf of the Company, and the actions of
the Company and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the meanings set
forth below, unless otherwise clearly indicated:
SECTION 1.1 “Affiliate” shall have the meaning assigned to such term by the Commission
under Regulation C promulgated under the Securities Act.
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SECTION 1.2 “Agent” shall mean such entity or entities as the Depositary may appoint
under Section 7.10, including the Custodian or any successor or addition thereto.
SECTION 1.3 “American Depositary Share(s)” and “ADS(s)” shall mean the
securities representing the rights and interests in the Deposited Securities granted to the Holders
and Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement and evidenced
by the American Depositary Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive one-fourth of a Share, until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.9 with respect to which additional American Depositary Receipts are not executed and
delivered, and thereafter each American Depositary Share shall represent the Shares or Deposited
Securities specified in such Sections.
SECTION 1.4 “ADS Record Date” shall have the meaning given to such term in Section
4.7.
SECTION 1.5 “Beneficial Owner” shall mean as to any ADS, any person or entity having a
beneficial interest in any ADSs. A Beneficial Owner need not be the Holder of the ADR evidencing
such ADSs. A Beneficial Owner may exercise any rights or receive any benefits hereunder solely
through the Holder of the ADR(s) evidencing the ADSs in which such Beneficial Owner has an
interest.
SECTION 1.6 “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not (a) a day on which banking institutions in the Borough of Manhattan, The City
of New York are authorized or obligated by law or executive order to close and (b) a day on which
the market(s) in which Receipts are traded are closed.
SECTION 1.7 “Commission” shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
SECTION 1.8 “Company” shall mean Elster Group SE, a European public limited liability
company (Societas Europaea, SE) organized under the laws of Germany and the EU, and its successors.
SECTION
1.9 “Custodian” shall mean, as of the date hereof, Deutsche Bank AG, Frankfurt Branch, having its principal
office at [•], as the custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereinafter be appointed by the Depositary pursuant to the terms of Section
5.5 as a successor or an additional custodian or custodians hereunder, as the context shall
require. The term “Custodian” shall mean all custodians, collectively.
SECTION 1.10 “Deliver” and “Delivery” shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the physical delivery of the
certificate representing such security, or the electronic delivery of such security by means of
book-entry transfer, as appropriate, including, without limitation, through DRS/Profile. With
respect to DRS/Profile ADRs, the terms “execute”, “issue”, “register”,
“surrender”, “transfer” or
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“cancel” refer to applicable entries or
movements to or within DRS/Profile.
SECTION 1.11 “Deposit Agreement” shall mean this Deposit Agreement and all exhibits
hereto, as the same may from time to time be amended and supplemented in accordance with the terms
hereof.
SECTION 1.12 “Depositary” shall mean Deutsche Bank Trust Company Americas, an indirect
wholly owned subsidiary of Deutsche Bank AG, in its capacity as depositary under the terms of this
Deposit Agreement, and any successor depositary hereunder.
SECTION 1.13 “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 or deemed to be received by the Depositary or the Custodian in respect
thereof and held hereunder, subject, in the case of cash, to the provisions of Section 4.6. The
collateral delivered in connection with Pre-Release Transactions described in Section 2.10 hereof
shall not constitute Deposited Securities.
SECTION 1.14 “Dollars” and “$” shall refer to the lawful currency of the
United States.
SECTION 1.15 “DRS/Profile” shall mean the system for the uncertificated registration
of ownership of securities pursuant to which ownership of ADSs is maintained on the books of the
Depositary without the issuance of a physical certificate and transfer instructions may be given to
allow for the automated transfer of ownership between the books of DTC and the Depositary.
Ownership of ADSs held in DRS/Profile are evidenced by periodic statements issued by the Depositary
to the Holders entitled thereto.
SECTION 1.16 “DTC” shall mean The Depository Trust and Clearing Corporation, 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 1.17 “EU” shall mean the European Union.
SECTION 1.18 “Exchange Act” shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION 1.19 “Foreign Currency” shall mean any currency other than Dollars.
SECTION 1.20 “Foreign Registrar” shall mean the entity, if any, that carries out the
duties of registrar for the Shares or any successor as registrar for the Shares and any other
appointed agent of the Company for the transfer and registration of Shares, which shall initially
be [•].
SECTION 1.21 “Germany” shall mean the Federal Republic of Germany.
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SECTION 1.22 “Holder” shall mean the person in whose name a Receipt is registered on
the books of the Depositary (or the Registrar, if any) maintained for such purpose. A Holder may
or may not be a Beneficial Owner. A Holder shall be deemed to have all requisite authority to act
on behalf of those Beneficial Owners of the ADRs registered in such Holder’s name.
SECTION 1.23 “Indemnified Person” and “Indemnifying Person” shall have the
meaning set forth in Section 5.8. hereof.
SECTION 1.24 “Pre-Release Transaction” shall have the meaning set forth in Section
2.10 hereof.
SECTION 1.25 “Principal Office” when used with respect to the Depositary, shall mean
the principal office of the Depositary at which at any particular time its depositary receipts
business shall be administered, which, at the date of this Deposit Agreement, is located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
SECTION 1.26 “Receipt(s)”; “American Depositary Receipt(s)” and
“ADR(s)” shall mean the certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of this Deposit
Agreement. References to Receipts shall include physical certificated Receipts as well as ADSs
issued through DRS/Profile, unless the context otherwise requires.
SECTION 1.27 “Registrar” shall mean the Depositary or any bank or trust company having
an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register ownership of Receipts and transfer of Receipts as herein provided,
shall include any co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary.
SECTION 1.28 “Restricted ADR(s)” and “Restricted ADS(s)” shall have the
respective meanings set forth in Section 2.11.
SECTION 1.29 “Restricted Securities” shall mean Shares, or American Depositary Shares
representing such Shares, which (i) have been acquired directly or indirectly from the Company or
any of its Affiliates in a transaction or chain of transactions not involving any public offering
and subject to resale limitations under the Securities Act or the rules issued thereunder, or (ii)
are held by an officer or director (or persons performing similar functions) or other Affiliate of
the Company, or (iii) are subject to other restrictions on sale or deposit under the laws of the
United States, Germany, the EU, or under a shareholders’ agreement, shareholders’ lock-up agreement
or the Company’s Articles of Association or under the regulations of an applicable securities
exchange unless, in each case, such Shares are being sold to persons other than an Affiliate of the
Company in a transaction (x) covered by an effective resale registration statement or (y) exempt from the registration requirements of the Securities
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Act (as
hereinafter defined), and the Shares are not, when held by such person, Restricted Securities.
SECTION 1.30 “Restricted Shares” shall mean Shares that are Restricted Securities.
SECTION 1.31 “Securities Act” shall mean the United States Securities Act of 1933, as
from time to time amended.
SECTION 1.32 “Shares” shall mean ordinary shares in registered form of the Company,
heretofore validly issued and outstanding and fully paid or hereafter validly issued and
outstanding and fully paid. References to Shares shall include evidence of rights to receive
Shares, whether or not stated in the particular instance; provided, however, that
in no event shall Shares include evidence of rights to receive Shares with respect to which the
full purchase price has not been paid or Shares as to which pre-emptive rights have theretofore not
been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification, conversion or any
other event described in Section 4.9, in respect of the Shares of the Company, the term “Shares”
shall thereafter, to the extent permitted by law, represent the successor securities resulting from
such change in par value, split-up, consolidation, exchange, conversion, reclassification or event.
SECTION 1.33 “United States” or “U.S.” shall mean the United States of
America.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the Depositary as
exclusive depositary for the Deposited Securities and hereby authorizes and directs the Depositary
to act in accordance with the terms set forth in this Deposit Agreement. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance with
the terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its attorney-in-fact,
with full power to delegate, to act on its behalf and to take any and all actions contemplated in
this Deposit Agreement, to adopt any and all procedures necessary to comply with applicable law and
to take such action as the Depositary in its sole discretion may deem necessary or appropriate to
carry out the purposes of this Deposit Agreement (the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
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(a) Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter
provided. Receipts may be issued in denominations of any number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary. The Depositary
shall maintain books on which each Receipt so executed and delivered, in the case of definitive
Receipts, and each Receipt issued through the DRS/Profile, in either case as hereinafter provided
and the transfer of each such Receipt shall be registered. Receipts in certificated form bearing
the manual or facsimile signature of a duly authorized signatory of the Depositary who was at any
time a proper signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of such Receipts by
the Registrar or did not hold such office on the date of issuance of such Receipts.
(b) In addition to the foregoing, the Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or modifications not inconsistent with the provisions of
this Deposit Agreement as may be reasonably required by the Depositary in order to comply with any
applicable law or regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying Deposited Securities or
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 Receipts issued through DRS/Profile. Certificated Receipts will be made available if:
(i) specifically requested by the Holder; (ii) in the Company’s sole discretion; or (iii) (a) DTC
ceases to operate as a book-entry clearing house and settlement system during a continuous period
lasting at least 14 days (other than by reason of holidays, statutory or otherwise) or (b) DTC
announces an intention permanently to cease and subsequently ceases business as a book-entry
clearing house and settlement system and no alternative book-entry clearing house and settlement
system satisfactory to the Depositary is available within 45 days. Holders and Beneficial Owners
shall be bound by the terms and conditions of this Deposit Agreement and of the form of Receipt,
regardless of whether their Receipts are certificated or issued through DRS/Profile.
(c) Subject to the limitations contained herein and in the form of Receipt, title to a Receipt
(and to the American Depositary Shares evidenced thereby), when properly endorsed (in the case of
certificated Receipts) or upon delivery to the Depositary of proper instruments of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable instrument under
the laws of the State of New York; provided, however, that the Depositary and the Company,
notwithstanding any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes and neither the Depositary nor the Company will have any obligation or be
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subject to any liability under the Deposit Agreement to any holder of a Receipt, unless such holder
is the Holder thereof.
SECTION 2.3 Deposits. (a) Subject to the terms and conditions of this Deposit
Agreement and applicable law, Shares or evidence of rights to receive Shares (including Restricted
Securities provided that any such Restricted Securities shall be held fully segregated from Shares
otherwise deposited hereunder) may be deposited by any person (including the Depositary in its
individual capacity but subject, however, in the case of the Company or any Affiliate of the
Company, to Section 5.7 hereof) at any time beginning on the 181st day after the date of
the prospectus contained in the registration statement on Form F-1 under which the ADSs are first
sold, whether or not the transfer books of the Company or the Foreign Registrar, if any, are
closed, by Delivery of the Shares to the Custodian. Except for Shares deposited by the Company,
the selling shareholders or underwriters or underwriter affiliates in connection with the initial
sale of ADSs under the registration statement on Form F-1, no deposits of Shares shall be accepted
under this Deposit Agreement prior to such date. Every deposit of Shares shall be accompanied by
the following: (A)(i) in the case of Shares delivered in physical form, such Shares or the
certificates representing such Shares and appropriate instruments of transfer or endorsement, in a
form satisfactory to the Custodian, and (ii) in the case of Shares delivered by book-entry
transfer, confirmation of such book-entry transfer to the Custodian or that irrevocable
instructions have been given to cause such Shares to be so transferred, (B) such certifications and
payments (including, without limitation, the Depositary’s fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such Shares by way of
receipt) as may be required by the Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, (C) if the Depositary so requires, a written order directing the Depositary
to execute and deliver to, or upon the written order of, the person or persons stated in such order
a Receipt or Receipts for the number of American Depositary Shares representing the Shares so
deposited, (D) evidence satisfactory to the Depositary (which may include an opinion of counsel
reasonably satisfactory to the Depositary provided at the cost of the person seeking to deposit
Shares) that all conditions to such deposit have been met and all necessary approvals have been
granted by, and there has been compliance with the rules and regulations of, any applicable
governmental agency in Germany, and (E) if the Depositary so requires, (i) an agreement, assignment
or instrument satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Shares are or have been recorded to the Custodian of any
distribution, or right to subscribe for additional Shares or to receive other property in respect
of any such deposited Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are registered in the name
of the person on whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Shares for any and all purposes until the
Shares so deposited are registered in the name of the Depositary, the Custodian or any nominee. No
Share shall be accepted for deposit unless accompanied by confirmation or such additional evidence,
if any is required by the Depositary, that is reasonably satisfactory to the Depositary or the
Custodian that all conditions to such deposit have been satisfied by the person depositing such
Shares under the laws and regulations of Germany and the EU and any necessary approval has been
granted by any governmental body in Germany and the EU, if any, which is then performing the function of the regulator of
currency exchange. The Depositary may issue Receipts against evidence of rights to receive
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Shares
from the Company, any agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under
this Deposit Agreement any Shares required to be registered under the provisions of the Securities
Act, unless a registration statement is in effect as to such Shares. The Depositary will use
commercially reasonable efforts to comply with reasonable written instructions of the Company that
the Depositary shall not accept for deposit hereunder any Shares specifically identified in such
instructions at such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company’s compliance with the securities laws in the United
States and other jurisdictions.
(b) As soon as practicable after receipt of any permitted deposit hereunder and compliance
with the provisions of this Deposit Agreement, the Custodian shall notify the Foreign Registrar
about the Shares so deposited, together with the appropriate evidence on the transfer or
endorsement of the Shares, for registration of the Shares by the Foreign Registrar (as soon as
registration can be accomplished and at the expense of the person for whom the deposit is made) in
the name of the Depositary, the Custodian or a nominee of either. Deposited Securities shall be
held by the Depositary or by the Custodian for the account and to the order of the Depositary or a
nominee, in each case for the account of the Holders and Beneficial Owners, at such place or places
as the Depositary or the Custodian shall determine.
(c) In the event any Shares are deposited which entitle the holders thereof to receive a
per-share distribution or other entitlement in an amount different from the Shares then on deposit,
the Depositary is authorized to take any and all actions as may be necessary (including, without
limitation, making the necessary notations on Receipts) to give effect to the issuance of such ADSs
and to ensure that such ADSs are not fungible with other ADSs issued hereunder until such time as
the entitlement of the Shares represented by such non-fungible ADSs equals that of the Shares
represented by ADSs prior to the original such deposit. The Company agrees to give timely written
notice to the Depositary if any Shares issued or to be issued contain rights different from those
of any other Shares theretofore issued and shall assist the Depositary with the establishment of
procedures enabling the identification of such non-fungible Shares upon Delivery to the Custodian.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of any Shares
pursuant to Section 2.3, the Custodian shall notify the Depositary of such deposit and the person
or persons to whom or upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by letter, first class airmail postage prepaid, or, at the request, risk and expense
of the person making the deposit, by cable, telex, SWIFT, facsimile or electronic transmission.
After receiving such notice from the Custodian, the Depositary, subject to this Deposit Agreement
(including, without limitation, the payment of the fees, expenses, taxes and other charges owing
hereunder) and applicable laws, shall issue the ADSs representing the Shares so deposited to or
upon the order of the person or persons named in the notice delivered to the Depositary and shall execute and deliver a Receipt registered in the name or names
requested by such person or persons evidencing in the aggregate the number of American Depositary
Shares to which such person or persons are entitled. Nothing herein shall prohibit
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any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement. The Depositary shall have at all
times a sufficient supply of Receipts to meet the demands of transfer of ADSs or Shares deposited
with the Depositary, the Custodian or any of their nominees.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary, or, if a Registrar (other than the Depositary) for the
Receipts shall have been appointed, the Registrar, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its books, upon surrender at the
Principal Office of the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed in the case of a certificated Receipt or accompanied by, or
in the case of DRS/Profile Receipts receipt by the Depositary of, proper instruments of transfer
(including signature guarantees in accordance with standard industry practice) and duly stamped as
may be required by the laws of the State of New York and of the United States and any other
applicable law. Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9 hereof and Article
(9) of the Receipt, the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate number of American
Depositary Shares as those evidenced by the Receipts surrendered.
(b) Combination & Split Up. 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 and upon payment to the Depositary of the
applicable fees and charges set forth in Section 5.9 hereof and Article (9) of the Receipt, execute
and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as the Receipt or
Receipts surrendered.
(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer agents for
the purpose of effecting transfers, combinations and split-ups of Receipts at designated transfer
offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements by Holders or
persons entitled to such Receipts and will be entitled to protection and indemnity, in each case
to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary, at the Depositary’s expense. Each co-transfer agent appointed under
this Section 2.5 (other than the Depositary) shall give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose of substituting a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa, execute and deliver
a certificated Receipt or DRS/Profile statement, as the case may be, for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as those evidenced by the certificated Receipt or DRS/Profile statement, as the
case may be, substituted.
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SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of American Depositary Shares for the purpose
of withdrawal of the Deposited Securities represented thereby, and upon payment of (i) the fees and
charges of the Depositary for the making of withdrawals of Deposited Securities and cancellation of
Receipts (as set forth in Section 5.9 hereof and Article (9) of the Receipt) and (ii) all
applicable taxes and/or governmental charges payable in connection with such surrender and
withdrawal, and subject to the terms and conditions of this Deposit Agreement, the Company’s
Articles of Association, Section 7.8 hereof and any other provisions of or governing the Deposited
Securities and other applicable laws, the Holder shall be entitled to Delivery, to him or upon his
order, of the Deposited Securities at the time represented by the American Depositary Shares so
surrendered. American Depositary Shares may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such American Depositary Shares (if held
in certificated form) or by book-entry delivery of such American Depositary Shares to the
Depositary.
A Receipt surrendered for such purposes shall, if so required by the Depositary, be properly
endorsed in blank or accompanied by proper instruments of transfer in blank, and if the Depositary
so requires, the Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or
upon the written order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the designated office of the
Custodian or through a book entry delivery of the Shares (in either case, subject to Sections 2.7,
3.1, 3.2, 5.9, and to the other terms and conditions of this Deposit Agreement, to the Company’s
Articles of Association, to the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the Deposited Securities
represented by such American Depositary Shares, together with any certificate or other proper
documents of or relating to title of the Deposited Securities as may be legally required, as the
case may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a number of American
Depositary Shares representing a number other than a whole number of Shares. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares representing other than a
whole number of Shares, the Depositary shall cause ownership of the appropriate whole number of
Shares to be Delivered in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt a new Receipt
evidencing American Depositary Shares representing any remaining fractional Share, or (ii) sell or
cause to be sold the fractional Shares represented by the Receipt surrendered and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt, and for the account
of such Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held in respect of, and any
11
certificate or
certificates and other proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile transmission. Upon
receipt by the Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash distributions with
respect to the Deposited Securities represented by such American Depositary Shares, or of any
proceeds of sale of any dividends, distributions or rights, which may at the time be held by the
Depositary.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of Receipts; Suspension
of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, subdivision combination or surrender of any
Receipt, the delivery of any distribution thereon or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges
of the Depositary as provided in Section 5.9 hereof and Article (9) of the Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or American Depositary
Shares or to the withdrawal or delivery of Deposited Securities and (B) such reasonable regulations
as the Depositary may establish consistent with the provisions of this Deposit Agreement and
applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of Shares generally
or against deposits of particular Shares may be suspended, or the issuance of ADSs against the
deposit of particular Shares may be withheld, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are closed or if any such
action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or provisions of, or governing, the Deposited Securities, or
any meeting of shareholders of the Company or for any other reason, subject, in all cases, to
Section 7.8 hereof.
SECTION 2.8 Lost Receipts, etc. To the extent the Depositary has issued Receipts in
physical certificated form, in case any Receipt shall be mutilated, destroyed, lost or stolen,
unless the Depositary has notice that such ADR has been acquired by a bona fide purchaser, subject
to Section 5.9 hereof, the Depositary shall execute and deliver a new Receipt (which, in the
discretion of the Depositary may be issued through DRS/Profile unless
12
specifically requested
otherwise) in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before the Depositary
shall execute and deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt,
the Holder thereof shall have (a) filed with the Depositary (i) a request for such execution and
delivery before the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond in form and amount acceptable to the Depositary and
(b) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts; Maintenance of
Records. All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled in accordance with its customary
practices. Cancelled Receipts shall not be entitled to any benefits under this Deposit Agreement
or be valid or obligatory for any purpose.
The Depositary agrees to maintain or cause its agents to maintain records of all Receipts
surrendered and Deposited Securities withdrawn under Section 2.6, substitute Receipts delivered
under Section 2.8, and of cancelled or destroyed Receipts under this Section 2.9, in accordance
with procedures ordinarily followed by stock transfer agents located in The City of New York or as
required by the laws or regulations governing the Depositary.
SECTION 2.10 Pre-Release. Subject to the further terms and provisions of this Section
2.10, the Depositary, its Affiliates and their agents, on their own behalf, may own and deal in any
class of securities of the Company and its Affiliates and in ADSs. In its capacity as Depositary,
the Depositary may, unless requested by the Company in writing to cease doing so, (i) issue ADSs
prior to the receipt of Shares as provided below and (ii) deliver Shares upon the receipt and
cancellation of ADSs that were under (i) above, but for which Shares may not yet have been received
(each such transaction a “Pre-Release Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or entity (the
“Applicant”) to whom ADSs or Shares are to be delivered (1) represents that at the time of the
Pre-Release Transaction the Applicant or its customer beneficially owns the Shares or ADSs that are
to be delivered by the Applicant under such Pre-Release Transaction, (2) agrees to indicate the
Depositary as beneficial owner of such Shares or ADSs in its records and to hold such Shares or
ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (3) unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (4) agrees to any additional restrictions or requirements that
the Depositary deems appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems appropriate, (c) terminable
by the Depositary on not more than five (5) business days’ notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The Depositary will normally limit the number of ADSs and Shares involved in
such Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to disregard such limit from time to time as it deems
appropriate. The Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis as it
13
deems
appropriate. The Company shall have no liability to any Holder or Beneficial Owner with respect to
any representations, action or omissions by the Depositary, or any of its agents, pursuant to this
Section 2.10.
The Depositary may retain for its own account any compensation received by it in conjunction
with the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
SECTION 2.11 Restricted ADSs. The Depositary shall, at the request and expense of the
Company, establish procedures enabling the deposit hereunder of Restricted Shares in order to
enable the holder of such Shares to hold its ownership interests in such Restricted Shares in the
form of ADSs issued under the terms hereof. Upon receipt of a written request from the Company to
accept Restricted Shares for deposit hereunder, the Depositary agrees to establish procedures
permitting the deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the “Restricted ADSs,” and the ADRs evidencing such
Restricted ADSs, the “Restricted ADRs”). The Company shall assist the Depositary in the
establishment of such procedures and agrees that it shall take all steps necessary and reasonably
satisfactory to the Depositary to insure that the establishment of such procedures does not violate
the provisions of the Securities Act or any other applicable laws. The depositors of such
Restricted Shares and the holders of the Restricted ADSs may be required, prior to the deposit of
such Restricted Shares, the transfer of the Restricted ADRs and the Restricted ADSs evidenced
thereby or the withdrawal of the Restricted Shares represented by Restricted ADSs, to provide such
written certifications or agreements as the Depositary or the Company may require. The Company
shall provide to the Depositary in writing the legend(s) to be affixed to the Restricted ADRs,
which legends shall (i) be in a form reasonably satisfactory to the Depositary and (ii) contain the
specific circumstances under which the Restricted ADRs and the Restricted ADSs represented thereby
may be transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the Depositary and the
Restricted Shares so deposited shall be held separate and distinct from the other Deposited
Securities held hereunder. The Restricted Shares and the Restricted ADSs shall not be eligible for
Pre-Release Transactions. The Restricted ADSs shall not be eligible for inclusion in any book-entry
settlement system, including, without limitation, DTC, and shall not in any way be fungible with
the ADSs issued under the terms hereof that are not Restricted ADSs. The Restricted ADRs and the
Restricted ADSs evidenced thereby shall be transferable only by the Holder thereof upon delivery to
the Depositary of (i) all documentation otherwise contemplated by this Deposit Agreement and (ii)
an opinion of counsel reasonably satisfactory to the Depositary setting forth, inter alia, the
conditions upon which the Restricted ADR presented is, and the Restricted ADSs evidenced thereby
are, transferable by the Holder thereof under applicable securities laws and the transfer
restrictions contained in the legend set forth on the Restricted ADR presented for transfer. Except as set forth in this Section 2.11
and except as required by applicable law, the Restricted ADRs and the Restricted ADSs evidenced
thereby shall be treated as ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement. In the event that, in determining the rights and obligations of parties hereto with
respect to any Restricted ADSs, any conflict arises between (a) the terms of this Deposit Agreement
(other than this Section 2.11) and (b) the terms of (i) this Section 2.11 or (ii) the applicable
Restricted ADR, the terms and conditions set forth in this Section 2.11 and of the
14
Restricted ADR
shall be controlling and shall govern the rights and obligations of the parties to this Deposit
Agreement pertaining to the deposited Restricted Shares, the Restricted ADSs and Restricted ADRs.
If any of the Restricted ADRs, the Restricted ADSs and the Restricted Shares are no longer
Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel reasonably
satisfactory to the Depositary setting forth, inter alia, that such Restricted ADRs, Restricted
ADSs and Restricted Shares are not, as of such time, Restricted Securities, and (y) instructions
from the Company to remove the restrictions applicable to such Restricted ADRs, Restricted ADSs and
the Restricted Shares, shall (i) eliminate the distinctions and separations between such Restricted
Shares held on deposit under this Section 2.11 and the other Shares held on deposit under the terms
of the Deposit Agreement that are not Restricted Shares, (ii) treat such newly unrestricted ADRs
and ADSs on the same terms as, and fully fungible with, the other ADRs and ADSs issued and
outstanding under the terms of the Deposit Agreement that are not Restricted ADRs or Restricted
ADSs, (iii) take all actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.11 between such Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not Restricted ADRs or
Restricted ADSs, respectively, on the other hand, including, without limitation, by making the
newly unrestricted ADSs eligible for Pre-Release Transactions and for inclusion in the applicable
book-entry settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person presenting Shares
for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary or the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental
charges, exchange control approval, legal or beneficial ownership of ADSs, Receipts and Deposited
Securities, compliance with applicable laws, regulations and the terms of this Deposit Agreement
and the provisions of, or governing, the Deposited Securities or other information; to execute such
certifications and to make such representations and warranties, and to provide such other
information and documentation, in all cases as the Depositary may deem necessary or proper or as
the Company may reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may withhold the execution
or delivery or registration of transfer of any Receipt or the distribution or sale of any dividend
or distribution of rights or of the proceeds thereof, or to the extent not limited by the terms of Section 7.8 hereof, the delivery of any Deposited
Securities, until such proof or other information is filed or such certifications are executed, or
such representations and warranties are made, or such other documentation or information provided,
in each case to the Depositary’s and the Company’s satisfaction. The Depositary shall from time to
time on the written request of the Company, advise the Company of the availability of any such
proofs, certificates or other information and shall, at the Company’s sole expense, provide or
otherwise make available copies thereof to the Company upon written request thereof
15
by the Company,
unless such disclosure is prohibited by law. Each Holder and Beneficial Owner agrees to provide
any information requested by the Company or the Depositary pursuant to this paragraph. Nothing
herein shall obligate the Depositary to (i) obtain any information for the Company if not provided
by the Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the information so
provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or future tax or
other governmental charge shall become payable by the Depositary or the Custodian with respect to
any Shares, Deposited Securities, Receipts or ADSs, such tax or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary and such Holders and Beneficial
Owners shall be deemed liable therefor. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, with the Holder and the Beneficial Owner remaining fully liable for any
deficiency. In addition to any other remedies available to it, the Depositary and the Custodian
may refuse the deposit of Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer, split-up or combination of ADRs and (subject to Section 7.8) the withdrawal
of Deposited Securities, until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and each of their respective agents, officers, directors, employees and Affiliates for,
and to hold each of them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such Holder and/or
Beneficial Owner. The obligations of Holders and Beneficial Owners of Receipts under this Section
3.2 shall survive any transfer of Receipts, any surrender of Receipts and withdrawal of Deposited
Securities, or the termination of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that
(i) such Shares and the certificates therefor are duly authorized, validly issued, fully paid,
non-assessable and were legally obtained by such person, (ii) all preemptive (and similar) rights,
if any, with respect to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim, and are not, and
the American Depositary Shares issuable upon such deposit will not be, Restricted Securities
(except as contemplated by Section 2.11), (v) the Shares presented for deposit have not been
stripped of any rights or entitlements and (vi) the Shares are not subject to any lock-up agreement
with the Company or other party or the Shares are subject to a lock-up agreement but such lock-up
agreement has terminated or the lock-up restrictions imposed thereunder have expired. Such
representations and warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer of such American
Depositary Shares. If any such representations or warranties are false in any way, the Company and
the Depositary shall be authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences thereof.
16
SECTION 3.4 Compliance with Information Requests and Applicable Law. Notwithstanding
any other provision of this Deposit Agreement, the Receipts, the Articles of Association of the
Company and applicable law, each Holder and Beneficial Owner agrees to (a) provide such information
as the Company or the Depositary may request pursuant to law (including, without limitation,
relevant German and EU law, any applicable law of the United States, the Articles of Association of
the Company, any resolutions of the Company’s Administrative Board adopted pursuant to such
Articles of Association, the requirements of any markets or exchanges upon which the Shares, ADSs
or Receipts are listed or traded, or to any requirements of any electronic book-entry system by
which the ADSs or Receipts may be transferred, and (b) be bound by and subject to applicable
provisions of the laws of Germany and the EU, the Articles of Association of the Company and the
requirements of any markets or exchanges upon which the ADSs, Receipts or Shares are listed or
traded, or pursuant to any requirements of any electronic book-entry system by which the ADSs,
Receipts or Shares may be transferred, to the same extent as if such Holder and Beneficial Owner
held Shares directly, in each case irrespective of whether or not they are Holders or Beneficial
Owners at the time such request is made. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, and at the Company’s expense, any such request from the
Company to the Holders and to forward to the Company any such responses to such requests received
by the Depositary.
Without limiting the generality of the foregoing, each Holder and Beneficial Owner agrees to
comply with all applicable provisions of German law, the rules and requirements of any stock
exchange on which the Shares are, or will be registered, traded or listed and the Company’s
Articles of Association regarding any such Holder or Beneficial Owner’s interest in Shares
(including the aggregate of ADSs and Shares held by each such Holder or Beneficial Owner), in
compliance, if applicable, with Sections 21 and 22 of the German Securities Trading Act
(Wertpapierhandelsgesetz) or, if applicable, Section 20 of the German Stock Corporation Act
(Aktiengesetz), or any substitute or supplemental provision of German law that may be brought into
force from time to time. Each Holder and Beneficial Owner acknowledges that, at the date of the
Deposit Agreement, the statutory notification obligations of the German Stock Corporation Act
(Aktiengesetz) apply to any enterprise that, either directly or by way of imputation pursuant to
the provisions of Section 20(2) or Section 16(4) of the German Stock Corporation Act
(Aktiengesetz), owns more than 25% of the shares of, or 50% of the shares or voting rights in, the
Company or, after having exceeded either of these thresholds, no longer owns such percentage.
Further, each Holder and Beneficial Owner acknowledges that, in the event the statutory
notification obligations of the German Securities Trading Act (Wertpapierhandelsgesetz) become
applicable, at the date of the Deposit Agreement, such notification obligations apply to anyone whose holding, either directly or by way of
imputation pursuant to the provisions of Section 22 of the German Securities Trading Act
(Wertpapierhandelsgesetz), of voting rights in the Company reaches or exceeds 3%, 5%, 10%, 15%,
20%, 25%, 30%, 50% or 75% or, after having reached or exceeded any such threshold, falls below that
threshold. Each Holder and Beneficial Owner acknowledges that failure to provide on a timely basis
any required notification of an interest in Shares may result in withholding of certain rights,
including voting and dividend rights, in respect of the Shares in which such Holder or Beneficial
Owner thereof has an interest. Each Holder and Beneficial Owner of ADSs further agrees to furnish
the Company with any such notification made in
17
accordance with this Section 3.4 and to comply with
requests from the Company pursuant to the laws of Germany, the rules and requirements of any stock
exchange on which the Shares are, or will be registered, traded or listed, and the Company’s
Articles of Association, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward upon the request, and
at the expense, of the Company any such request from the Company to the Holders and to forward to
the Company any such responses to such requests received by the Depositary.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives confirmation from
the Custodian of receipt of any cash dividend or other cash distribution on any Deposited
Securities, or receives proceeds from the sale of any Shares, rights, securities or other
entitlements under the terms hereof, the Depositary will, if at the time of receipt thereof any
amounts received in a Foreign Currency can in the judgment of the Depositary (pursuant to Section
4.6 hereof) be converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or proceeds into Dollars
(on the terms described in Section 4.6) and will distribute promptly the amount thus received (net
of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes
and governmental charges) to the Holders of record as of the ADS Record Date in proportion to the
number of American Depositary Shares held by such Holders respectively as of the ADS Record Date.
The Depositary shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional amounts shall be rounded to
the nearest whole cent and so distributed to Holders entitled thereto. Holders and Beneficial
Owners understand that in converting Foreign Currency, amounts received on conversion are
calculated at a rate which exceeds three or four decimal places (the number of decimal places used
by the Depositary to report distribution rates). The excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees and expenses payable
or owing hereunder and shall not be subject to escheatment. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of taxes, duties or other
governmental charges, the amount distributed to Holders on the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant governmental authority. Evidence of payment thereof by the Company
shall be forwarded by the Company to the Depositary upon request. 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, such reports
necessary to obtain benefits under the applicable tax treaties for the Holders and Beneficial
Owners of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Company shall cause such
18
Shares to
be deposited with the Custodian and registered, as the case may be, in the name of the Depositary,
the Custodian or any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms described in Section
4.7 and shall, subject to Section 5.9 hereof, either (i) distribute to the Holders as of the ADS
Record Date in proportion to the number of American Depositary Shares held as of the ADS Record
Date, additional American Depositary Shares, which represent in the aggregate the number of Shares
received as such dividend, or free distribution, subject to the other terms of this Deposit
Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and/or governmental charges), or (ii) if additional
American Depositary Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges). In lieu of delivering fractional American
Depositary Shares, the Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the proceeds upon the terms described in Section 4.1. The Depositary
may withhold any such distribution of Receipts if it has not received satisfactory assurances from
the Company (including an opinion of counsel to the Company furnished at the expense of the
Company) that such distribution does not require registration under the Securities Act or is exempt
from registration under the provisions of the Securities Act. To the extent such distribution may
be withheld, the Depositary may dispose of all or a portion of such distribution in such amounts
and in such manner, including by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction
of applicable (a) taxes and/or governmental charges and (b) fees and charges of, and expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms described in Section 4.1.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company intends to
distribute a dividend payable at the election of the holders of Shares in cash or in additional
Shares, the Company shall give notice thereof to the Depositary at least 30 days prior to the
proposed distribution stating whether or not it wishes such elective distribution to be made
available to Holders. Upon receipt of notice indicating that the Company wishes such elective
distribution to be made available to Holders, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination, whether it is lawful
and reasonably practicable to make such elective distribution available to the Holders. The
Depositary shall make such elective distribution available to Holders only if (i) the Company shall have timely requested that the elective distribution is available to Holders of ADRs,
(ii) the Depositary shall have determined that such distribution is reasonably practicable and
(iii) the Depositary shall have received satisfactory documentation within the terms of Section
5.7. If the above conditions are not satisfied, the Depositary shall, to the extent permitted by
law, distribute to the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (x) cash upon the terms
described in Section 4.1 or (y) additional ADSs representing such additional Shares upon the terms
described in Section 4.2. If the above conditions are satisfied, the Depositary shall establish an
ADS Record Date (on the terms described in Section 4.7) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs. The Company shall
assist the
19
Depositary in establishing such procedures to the extent necessary. Subject to Section
5.9 hereof, if a Holder elects to receive the proposed dividend (x) in cash, the dividend shall be
distributed upon the terms described in Section 4.1, or (y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall obligate the Depositary
to make available to Holders a method to receive the elective dividend in Shares (rather than
ADSs). There can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and conditions as the
holders of Shares.
SECTION 4.4 Distribution of Rights to Purchase Shares.
(a) Distribution to ADS Holders. Whenever the Company intends to distribute to the
holders of the Deposited Securities rights to subscribe for additional Shares, the Company shall
give notice thereof to the Depositary at least 45 days prior to the proposed distribution stating
whether or not it wishes such rights to be made available to Holders. Upon receipt of a notice
indicating that the Company wishes such rights to be made available to Holders, the Depositary
shall consult with the Company to determine, and the Company shall determine, whether it is lawful
and reasonably practicable to make such rights available to the Holders. The Depositary shall make
such rights available to Holders only if (i) the Company shall have timely requested that such
rights be made available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall have determined that
such distribution of rights is lawful and reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) below or, if timing or market conditions may not permit,
do nothing thereby allowing such rights to lapse. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section
4.7) and establish procedures (x) to distribute such rights (by means of warrants or otherwise) and
(y) to enable the Holders to exercise the rights (upon payment of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes and other governmental charges).
Nothing herein shall obligate the Depositary to make available to the Holders a method to exercise
such rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the Depositary to make
the rights available to Holders or requests that the rights not be made available to Holders, (ii)
the Depositary fails to receive satisfactory documentation within the terms of Section 5.7 or determines it is not lawful or reasonably practicable to make the rights available to Holders,
or (iii) any rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in
a riskless principal capacity or otherwise, at such place and upon such terms (including public or
private sale) as it may deem proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes and governmental charges) upon the terms set
forth in Section 4.1.
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(c) Lapse of Rights. If the Depositary is unable to make any rights available to
Holders upon the terms described in Section 4.4(a) or to arrange for the sale of the rights upon
the terms described in Section 4.4(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it may be lawful
or practicable to make such rights available to Holders in general or any Holders in particular,
(ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise, or
(iii) the content of any materials forwarded to the Holders on behalf of the Company in connection
with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if registration (under the
Securities Act and/or any other applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights or such securities to Holders
and to sell the securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the Securities Act
(and/or such other applicable law) covering such offering is in effect or (ii) unless the Company
furnishes to the Depositary at the Company’s own expense opinion(s) of counsel to the Company in
the United States and counsel to the Company in any other applicable country in which rights would
be distributed, in each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders shall be reduced accordingly. In
the event that the Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and practicable to pay any
such taxes and charges.
There can be no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to exercise rights on the same terms and conditions as the holders of Shares or be
able to exercise such rights. Nothing herein shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited Securities property
other than cash, Shares or rights to purchase additional Shares, the Company shall give notice
thereof to the Depositary at least 30 days prior to the proposed distribution and shall indicate
whether or not it wishes such distribution to be made to Holders. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders, the Depositary shall
determine whether such distribution to Holders is lawful and practicable. The Depositary
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shall not
make such distribution unless (i) the Company shall have timely requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the Company to distribute
property to Holders and after making the requisite determinations set forth in (a) above, the
Depositary may distribute the property so received to the Holders of record as of the ADS Record
Date, in proportion to the number of ADSs held by such Holders respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment
or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii)
net of any taxes and other governmental charges withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges applicable to the
distribution.
(c) If (i) the Company does not request the Depositary to make such distribution to Holders or
requests not to make such distribution to Holders, (ii) the Depositary does not receive
satisfactory documentation within the terms of Section 5.7, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable or feasible, the Depositary
shall endeavor to sell or cause such property to be sold in a public or private sale, at such place
or places and upon such terms as it may deem proper and shall distribute the net proceeds, if any,
of such sale received by the Depositary (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and governmental charges) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably practicable under the
circumstances for nominal or no consideration and Holders and Beneficial Owners shall have no
rights thereto or arising therefrom.
SECTION 4.6 Conversion of Foreign Currency. Whenever the Depositary or the Custodian
shall receive Foreign Currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and in the judgment of the Depositary such Foreign Currency can at such time be converted on a practicable basis (by sale or in any
other manner that it may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine, such Foreign
Currency into Dollars, and shall distribute such Dollars (net of any fees, expenses, taxes and
other governmental charges incurred in the process of such conversion) in accordance with the terms
of the applicable sections of this Deposit Agreement. If the Depositary shall effect such
conversion through any Affiliate of the Depositary, such conversion shall be at the then prevailing
market rate. If the Depositary shall have distributed warrants or other instruments that entitle
the holders thereof to such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in either case without
liability for interest thereon. Such distribution may be made upon an averaged or
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other practicable
basis without regard to any distinctions among Holders on account of exchange restrictions, the
date of delivery of any Receipt or otherwise.
Holders understand that in converting Foreign Currency, amounts received on conversion are
calculated at a rate which may exceed the number of decimal places used by the Depositary to report
distribution rates (which in any case will not be less than two decimal places). Any excess amount
may be retained by the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to escheatment.
If such conversion or distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary may file such application for approval or license, if
any, as it may deem necessary, practicable and at nominal cost and expense. Nothing herein shall
obligate the Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such conversion received by the
Depositary is not practical or lawful, or if any approval or license of any governmental authority
or agency thereof that is required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought, the Depositary
shall, in its sole discretion but subject to applicable laws and regulations, either (i) distribute
the Foreign Currency (or an appropriate document evidencing the right to receive such Foreign
Currency) received by the Depositary to the Holders entitled to receive such Foreign Currency, or
(ii) hold such Foreign Currency uninvested and without liability for interest thereon for the
respective accounts of the Holders entitled to receive the same.
SECTION 4.7 Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, Shares, rights, or other distribution), or whenever for any reason
the Depositary causes a change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall receive notice of any meeting of or solicitation
of holders of Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the “ADS Record Date”), as close
as practicable to the record date fixed by the Company with respect to the Shares (if applicable), for the determination of the Holders who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such meeting, or to
give or withhold such consent, or to receive such notice or solicitation or to otherwise take
action, or to exercise the rights of Holders with respect to such changed number of Shares
represented by each American Depositary Share, or for any other reason. Subject to applicable law
and the provisions of Section 4.1 through 4.6 and to the other terms and conditions of this Deposit
Agreement, only the Holders of record at the close of business in New York on such ADS Record Date
shall be entitled to receive such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action. The Depositary shall promptly notify any national
securities exchange in the United States on which the Company’s ADSs are listed of any action to
fix a record date for the ADSs or to close the transfer books for the ADSs.
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SECTION 4.8 Voting of Deposited Securities. Subject to the next sentence, as soon as
practicable after receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation
of consent or proxy. The Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if the request shall not
have been received by the Depositary at least 30 days prior to the date of such vote or meeting)
and at the Company’s expense and provided no U.S. legal prohibitions exist, mail by regular,
ordinary mail delivery (or by electronic mail or as otherwise may be agreed between the Company and
the Depositary in writing from time to time) or otherwise distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxy (as provided by the
Company); (b) a 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 in accordance with Sections 135 of the
German Stock Corporation Act (Aktiengesetz) (the “Proxy Bank”), setting forth its recommendations
with regard to voting of the Shares pursuant to Section 135(4) sentence 4 no. (1), (2) and (3) of
the German Stock Corporation Act as to any matter concerning which the notice from the Company
indicates that a vote is to be taken by holders of Shares, together with an English translation
thereof (the “Recommendation”); (c) a statement that the Holders at the close of business on the
ADS Record Date will be entitled, subject to any applicable law, the Company’s Articles of
Association and the provisions of or governing the Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder’s American Depositary Shares; and (d) a brief statement as to the manner
in which such instructions may be given, including an express indication that, if voting
instructions are not received prior to the record date set by the Depositary therefore or are not
specific, then the Holders shall in each case be deemed to have instructed the Depositary to vote
or cause the Proxy Bank to vote the Shares in accordance with the Recommendation, provided that the
taking of such actions does not violate any U.S. or German laws, or any terms of the Company’s
Articles of Association. Voting instructions may be given only in respect of a number of American
Depositary Shares representing an integral number of Shares or other Deposited Securities. Upon
the timely receipt of written instructions of a Holder of ADSs on the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of this Deposit Agreement, the Company’s
Articles of Association and the provisions of or governing the Deposited Securities, to vote or
cause the Custodian to vote the Shares and/or other Deposited Securities (in person or by proxy)
represented by American Depositary Shares evidenced by such Receipt in accordance with such voting
instructions.
Neither the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall vote, attempt to
exercise the right to vote, or in any way make use of for purposes of establishing a quorum or
otherwise, the Shares or other Deposited Securities represented by ADSs except pursuant to and in
accordance with the voting instructions timely received from Holders or the provisions of the
preceding paragraph.
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Notwithstanding anything to the contrary in this Deposit Agreement, if the Proxy Bank shall
fail to supply the Recommendation to the Depositary at least 21 days prior to the date of the
meeting with respect to which the Depositary has received notice from the Company, the Depositary
shall mail such notice (which in this case will not contain the Recommendation or the indication
concerning the proxy to be given to the Proxy Bank) to the Holders as herein above provided, and,
thereafter, in any case in which no specific voting instructions are received by the Depositary
from a Holder, no voting instructions are received on or before the date established by the
Depositary for such purpose with respect to the Deposited Securities represented by ADSs, no votes
shall be cast at such meeting with respect to such Deposited Securities.
Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or solicitation of
consents or proxies from holders of Shares or other Deposited Securities if the taking of such
action would violate U.S. laws.
There can be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with sufficient time to
enable the Holder or Beneficial Owner to return voting instructions to the Depositary in a timely
manner.
SECTION 4.9 Changes Affecting Deposited Securities. Upon any change in par value,
split-up, subdivision cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of assets affecting the Company or to which it is otherwise a party, any securities which
shall be received by the Depositary or the Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to the extent permitted by
law, be treated as new Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence American
Depositary Shares representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company’s approval, and shall, if the Company shall so request, subject to
the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company, furnished
at the expense of the Company, satisfactory to the Depositary that such distributions are not in violation of any applicable laws or regulations, execute and deliver additional
Receipts as in the case of a stock dividend on the Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of Receipt contained in Exhibit A
hereto, specifically describing such new Deposited Securities and/or corporate change. The Company
agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as filed with
the Commission to permit the issuance of such new form of Receipts. Notwithstanding the foregoing,
in the event that any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, with the Company’s approval, and shall, if the Company requests, subject to
receipt of an opinion of counsel to the Company, furnished at the expense of the Company,
satisfactory to the Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
25
governmental charges) for
the account of the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders 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. The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such
sale, or (iii) any liability to the purchaser of such securities.
SECTION 4.10 Available Information. The Company is subject to the periodic reporting
requirements of the Exchange Act applicable to foreign private issuers (as defined in Rule 405
under the Securities Act) and accordingly files certain information with the Commission. These
reports and documents can be retrieved from the Commission’s website (▇▇▇.▇▇▇.▇▇▇) and can be
inspected and copied at the public reference facilities maintained by the Commission located at the
date of this Agreement at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
SECTION 4.11 Reports. The Depositary shall make available during normal business
hours on any Business Day for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the Company which are both
(a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Company agrees to provide to the Depositary, at the Company’s
expense, all documents that it provides to the Custodian. The Depositary shall, at the expense of
the Company and in accordance with Section 5.6, also mail by regular, ordinary mail delivery or by
electronic transmission (if agreed by the Company and the Depositary) and unless otherwise agreed
in writing by the Company and the Depositary, to Holders copies of such reports when furnished by
the Company pursuant to Section 5.6.
SECTION 4.12 List of Holders. Promptly upon written request by the Company, the
Depositary shall, at the expense of the Company, furnish to it a list, as of the most recent practicable 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.
SECTION
4.13 Taxation; Withholding. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its records as the Company
may reasonably request to enable the Company or its agents to file necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian or the Company and its agents
may, but shall not be obligated to, file such reports as are necessary to reduce or eliminate
applicable taxes on dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. Holders and Beneficial
Owners of American Depositary Shares may be required from time to time, and in a timely manner, to
file such proof of taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary’s or the Custodian’s obligations under applicable law. The Holders and
Beneficial Owners shall indemnify the Depositary, the
26
Company, the Custodian and any of their
respective officers, directors, employees, agents and Affiliates against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes, additions to tax,
penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or
other tax benefit obtained.
The Company shall remit to the appropriate governmental authority or agency any amounts
required to be withheld by the Company and owing to such governmental authority or agency. Upon
any such withholding, the Company shall remit to the Depositary information about such taxes and/or
governmental charges withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by U.S. law, report
to Holders: (i) any taxes withheld by it; (ii) any taxes withheld by the Custodian, subject to
information being provided to the Depositary by the Custodian; and (iii) any taxes withheld by the
Company, subject to information being provided to the Depositary by the Company. The Depositary and
the Custodian shall not be required to provide the Holders with any evidence of the remittance by
the Company (or its agents) of any taxes withheld, or of the payment of taxes by the Company,
except to the extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or Beneficial Owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such Holder’s or
Beneficial Owner’s income tax liability.
In the event that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which
the Depositary is obligated to withhold, the Depositary shall withhold the amount required to be
withheld and may by public or private sale dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes and charges and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes and charges to the Holders entitled thereto
in proportion to the number of American Depositary Shares held by them respectively.
The Depositary is under no obligation to provide the Holders and Beneficial Owners with any
information about the tax status of the Company. The Depositary shall not incur any liability for
any tax consequences that may be incurred by Holders and Beneficial Owners on account of their
ownership of the American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a “Passive Foreign
Investment Company” (as defined in the U.S. Internal Revenue Code and the regulations issued
thereunder) or otherwise.
SECTION 4.14 Redemption. If the Company intends to exercise any right of redemption
in respect of any of the Deposited Securities in accordance with the Company’s Memorandum and
Articles of Association, the Company shall give notice thereof to the Depositary as soon as
practicable prior to the intended date of redemption which notice shall set forth the particulars
of the proposed redemption. Upon receipt of (i) such notice and (ii) satisfactory documentation
given by the Company to the Depositary, the Depositary shall mail to each Holder subject to the
redemption a notice setting forth the intended exercise by the
27
Company of the redemption rights and
any other particulars set forth in the Company’s notice to the Depositary. The Depositary shall
instruct the Custodian to present to the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable redemption price as set
forth in the Company’s Memorandum and Articles of Association. Upon receipt of confirmation from
the Custodian that the redemption has taken place and that funds representing the redemption price
have been received, the Holders of ADSs representing the Deposited Securities subject to redemption
shall return their ADSs to the Depositary and the Depositary shall convert, transfer and distribute
the proceeds (net of applicable (i) fees and charges of, and the expenses incurred by, the
Depositary and (ii) taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof. The redemption price per ADS shall be the per share amount received by the Depositary
upon the redemption of the Deposited Securities represented by ADSs (subject to the terms of
Section 4.6 hereof and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar. Until
termination of this Deposit Agreement in accordance with its terms, the Depositary or if a
Registrar for the Receipts shall have been appointed, the Registrar shall maintain in the Borough
of Manhattan, the City of New York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of Receipts, the surrender of
Receipts and the delivery and withdrawal of Deposited Securities in accordance with the provisions
of this Deposit Agreement.
The Depositary or the Registrar as applicable, shall keep books for the registration of
Receipts and transfers of Receipts in accordance with the laws and regulations applicable to the
Depositary and such books shall at all reasonable times be open for inspection by the Company and
by the Holders of such Receipts, provided that such inspection shall not be, to the Depositary’s or
the Registrar’s knowledge, for the purpose of communicating with Holders of such Receipts in the
interest of a business or object other than the business of the Company or other than a matter
related to this Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer books with respect to
the Receipts, at any time or from time to time, when deemed necessary or advisable by it in
connection with the performance of its duties hereunder, or at the reasonable written request of
the Company subject to Section 7.10 hereof.
If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more
stock exchanges or automated quotation systems in the United States, the Depositary shall act as
Registrar or appoint a Registrar or one or more co-registrars for registration of Receipts and
transfers, combinations and split-ups, and to countersign such Receipts in accordance with
28
any
requirements of such exchanges or systems. Such Registrar or co-registrars may be removed and a
substitute or substitutes appointed by the Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more
securities exchanges, markets or automated quotation systems, (i) the Depositary shall be entitled
to, and shall, take or refrain from taking such action(s) as it may deem necessary or appropriate
to comply with the requirements of such securities exchange(s), market(s) or automated quotation
system(s) applicable to it, notwithstanding any other provision of this Deposit Agreement; and (ii)
upon the reasonable request of the Depositary, the Company shall provide the Depositary such
information and assistance as may be reasonably necessary for the Depositary to comply with such
requirements, to the extent that the Company may lawfully do so.
SECTION 5.2 Exoneration. Neither the Depositary, the Custodian or the Company shall
be obligated to do or perform any act which is inconsistent with the provisions of this Deposit
Agreement or shall incur any liability (i) if the Depositary, the Custodian or the Company or their
respective controlling persons or agents shall be prevented or forbidden from, or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing or performing any act or
thing required by the terms of the Deposit Agreement and any Receipt, by reason of any provision of
any present or future law or regulation of the United States or any state thereof, Germany, the EU
or any other country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of
any provision, present or future, of the Company’s Articles of Association or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or other circumstances
beyond its control (including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement or in the Company’s Articles of Association or provisions of or governing Deposited Securities, (iii) for any
action or inaction of the Depositary, the Custodian or the Company or their respective controlling
persons or agents in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be competent to give
such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from
any distribution, offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of this Deposit Agreement, made available to Holders of
American Depositary Shares, (v) for any action or inaction by the Proxy Bank or (vi) for any
special, consequential, indirect or punitive damages for any breach of the terms of this Deposit
Agreement or otherwise.
The Depositary, its controlling persons, its agents, the Custodian and the Company, its
controlling persons and its agents may rely and shall be protected in acting upon any written
notice, request, opinion or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
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No disclaimer of liability under the Securities Act is intended by any provision of this
Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under this Deposit Agreement
or any Receipts to any Holder(s) or Beneficial Owner(s) or other persons (except for the Company’s
and the Depositary’s obligations specifically set forth in Section 5.8), provided, that the Company
and the Depositary and their respective agents agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable ADRs without gross negligence or
willful misconduct.
Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their
respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of
the Receipts, which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of counsel) and
liabilities be furnished as often as may be required (and no Custodian shall be under any
obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being
solely to the Depositary).
In no event shall the Depositary or any of its directors, officers, employees, agents
(including, without limitation, its Agents) and/or Affiliates, or any of them, be liable for any
indirect, special, punitive or consequential damages to the Company, Holders, Beneficial Owners or
any other person.
The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
(provided that any such action or omission is in good faith) or the effects of any vote. The
Depositary shall not incur any liability for any failure to determine that any distribution or
action may be lawful or reasonably practicable, for the content of any information submitted to it
by the Company for distribution to the Holders or for any inaccuracy of any translation thereof,
for any investment risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of any third party,
for allowing any rights to lapse upon the terms of this Deposit Agreement or for the failure or
timeliness of any notice from the Company, or for any action or non action by it in reliance upon
the opinion, advice of or information from legal counsel, accountants, any person representing
Shares for deposit, any Holder or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary and its agents shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal or resignation of
the Depositary, provided that in connection with the issue out of which such potential liability
arises the Depositary performed its obligations without gross negligence or willful misconduct
while it acted as Depositary.
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SECTION 5.4 Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary hereunder by written notice of
resignation delivered to the Company, such resignation to be effective on the earlier of (i) the
60th day after delivery thereof to the Company (whereupon the Depositary shall, in the event no
successor depositary has been appointed by the Company, be entitled to take the actions
contemplated in Section 6.2 hereof), or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as hereinafter provided, save that, any amounts,
fees, costs or expenses owed to the Depositary hereunder or in accordance with any other agreements
otherwise agreed in writing between the Company and the Depositary from time to time shall be paid
to the Depositary prior to such resignation.
The Depositary may at any time be removed by the Company by written notice of such removal,
which removal shall be effective on the later of (i) the 60th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section
6.2 hereof), or (ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other agreements otherwise
agreed in writing between the Company and the Depositary from time to time shall be paid to the
Depositary prior to such removal.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company
shall use commercially reasonable efforts to appoint a successor depositary, which shall be a bank
or trust company having an office in the Borough of Manhattan, the City of New York. The Company
shall give notice to the Depositary of the appointment of a successor depositary not more than 60
days after delivery by the Depositary of written notice of resignation or by the Company of
removal, each as provided in this section. In the event that a successor depositary is not
appointed or notice of the appointment of a successor depositary is not provided by the Company in
accordance with the preceding sentence, the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof. Every successor depositary shall be required by the Company to
execute and deliver to its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any further act or deed
(except as required by applicable law), shall become fully vested with all the rights, powers,
duties and obligations of its predecessor. The predecessor depositary, upon payment of all sums
due to it and on the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor hereunder (other than as
contemplated in Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to such successor a list
of the Holders of all outstanding Receipts and such other books and records maintained by such
predecessor and its agents with respect to its function as Depositary hereunder. Any such
successor depositary shall promptly mail notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or consolidated shall be the
successor of the Depositary without the execution or filing of any document or any further act.
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SECTION 5.5 The Custodian. The Custodian or its successors in acting hereunder shall
be subject at all times and in all respects to the direction of the Depositary for the Deposited
Securities for which the Custodian acts as custodian and shall be responsible solely to it. If any
Custodian resigns or is discharged from its duties hereunder with respect to any Deposited
Securities and no other Custodian has previously been appointed hereunder, the Depositary shall
promptly appoint a substitute custodian. The Depositary shall require such resigning or discharged
Custodian to deliver the Deposited Securities held by it, together with all such records maintained
by it as Custodian with respect to such Deposited Securities as the Depositary may request, to the
Custodian designated by the Depositary. Whenever the Depositary determines, in its discretion,
that it is appropriate to do so, it may appoint an additional entity to act as Custodian with
respect to any Deposited Securities, or discharge the Custodian with respect to any Deposited
Securities and appoint a substitute custodian, which shall thereafter be Custodian hereunder with
respect to the Deposited Securities. After any such change, the Depositary shall give notice
thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting hereunder shall,
unless otherwise instructed by the Depositary, continue to be the Custodian of the Deposited
Securities without any further act or writing and shall be subject to the direction of the
successor depositary. The successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on the direction of
such successor depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which the Company
gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in English but otherwise
in the form given or to be given to holders of Shares or other Deposited Securities. The Company
shall also furnish to the Custodian and the Depositary a summary, in English, of any applicable
provisions or proposed provisions of the Company’s Articles of Association that may be relevant or
pertain to such notice of meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) English language versions of the other
notices, reports and communications which are made generally available by the Company to holders of
its Shares or other Deposited Securities and (b) English language versions of the Company’s annual
and other reports prepared in accordance with the applicable requirements of the Commission. The
Depositary shall arrange, at the request of the Company and at the Company’s expense, for the
mailing of copies thereof to all Holders, or by any other means as agreed between the Company and
the Depositary (at the Company’s expense) or make such notices, reports and other communications
available for inspection by all Holders, provided, that, the Depositary shall have received
evidence sufficiently satisfactory to it, including in the form of an opinion of local and/or U.S.
counsel or counsel of other applicable jurisdiction,
furnished at the expense of the Company, as the Depositary in its reasonable discretion so
requests, that the distribution of such notices, reports and any such other communications to
32
Holders from time to time is valid and does not or will not infringe any local, U.S. or other
applicable jurisdiction regulatory restrictions or requirements if so distributed and made
available to Holders. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time to time, in order
for the Depositary to effect such mailings. The Company has delivered to the Depositary and the
Custodian a copy of the Company’s Articles of Association along with the provisions of or governing
the Shares and any other Deposited Securities issued by the Company of the Company, in connection
with the Shares, in each case along with an English translation thereof, and promptly upon any
amendment thereto or change therein, the Company shall deliver to the Depositary and the Custodian
a copy of such amendment thereto or change therein (along with an English translation thereof). The
Depositary may rely upon such copy for all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy of any such notices,
reports or communications issued by the Company and delivered to the Depositary for inspection by
the Holders of the Receipts evidencing the American Depositary Shares representing such Shares
governed by such provisions at the Depositary’s Principal Office, at the office of the Custodian
and at any other designated transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees that in the
event it or any of its Affiliates proposes (i) an issuance, sale or distribution of additional
Shares, (ii) an offering of rights to subscribe for Shares or other Deposited Securities, (iii) an
issuance of securities convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an elective dividend of
cash or Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of Deposited
Securities, or solicitation of consents or proxies, relating to any reclassification of securities,
merger, subdivision, amalgamation or consolidation or transfer of assets or (viii) any
reclassification, recapitalization, reorganization, merger, amalgamation, consolidation or sale of
assets which affects the Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to Holders and Beneficial
Owners does not violate the registration provisions of the Securities Act, or any other applicable
laws (including, without limitation, the Investment Company Act of 1940, as amended, the Exchange
Act or the securities laws of the states of the United States). In support of the foregoing or at
the reasonable request of the Depositary where it deems necessary, the Company will furnish to the
Depositary, at its own expense (a) a written opinion of U.S. counsel (reasonably satisfactory to
the Depositary) stating whether or not application of such transaction to Holders and Beneficial
Owners (1) requires a registration statement under the Securities Act to be in effect or whether
the transaction is exempt from the registration requirements of the Securities Act and/or (2)
dealing with such other reasonable issues requested by the Depositary and (b) an opinion of German
counsel (reasonably satisfactory to the Depositary) stating that making the transaction available
to Holders and Beneficial Owners does not violate the laws or regulations of Germany. If the
filing of a registration statement is required, the Depositary shall not have any obligation to
proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been declared effective and
that such distribution is in accordance with all applicable laws or regulations. If, being advised
by counsel, the Company determines that a transaction is required to be registered under the
33
Securities Act, the Company will either (i) register such transaction to the extent necessary, (ii)
alter the terms of the transaction to avoid the registration requirements of the Securities Act or
(iii) direct the Depositary to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration requirements of the
Securities Act.
The Company agrees with the Depositary that neither the Company nor any of its Affiliates will
at any time (i) deposit any Shares or other Deposited Securities, either upon original issuance or
upon a sale of Shares or other Deposited Securities previously issued and reacquired by the Company
or by any such Affiliate, or (ii) issue additional Shares, rights to subscribe for such Shares,
securities convertible into or exchangeable for Shares or rights to subscribe for such securities,
unless such transaction and the securities issuable in such transaction are exempt from
registration under the Securities Act or have been registered under the Securities Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration statement in respect of
any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the Depositary, any
Custodian and each of their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any losses, liabilities, taxes, costs, claims,
judgments, proceedings, actions, demands and any charges or expenses of any kind whatsoever
(including, but not limited to, reasonable attorney’s fees and expenses and, in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed in respect thereof)
(collectively referred to as “Losses”) which the Depositary or any agent thereof may incur or which
may be made against it as a result of or in connection with its appointment or the exercise of its
powers and duties under this Agreement or that may arise (a) out of or in connection with any
offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American Depositary
Shares, the Shares, or other Deposited Securities, as the case may be, (b) out of or in connection
with any offering documents in respect thereof or (c) out of or in connection with acts performed
or omitted, including, but not limited to, any delivery by the Depositary on behalf of the Company
of information regarding the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent any such Losses arise out of the negligence, bad faith
or willful misconduct of any of them, or (ii) by the Company or any of its directors, officers,
employees, agents and Affiliates. Notwithstanding the above, in non event shall the Company or any
of its directors, officers, employees, agents or Affiliates be liable for any indirect, special,
punitive or consequential damages to the Depositary, any Custodian and each of their respective
directors, officers, employees, agents and Affiliates or any other person.
The indemnities provided in the preceding paragraph shall not apply to any Losses arising out
of information relating to the Depositary or any Custodian, as the case may be, furnished in
writing by the Depositary to the Company expressly for use in any registration
34
statement, proxy
statement, prospectus or preliminary prospectus or any other offering documents relating to the
ADRs, the ADSs or any Deposited Securities represented by the ADSs.
The Depositary shall indemnify, defend and hold harmless the Company and its directors,
officers, employees, agents and Affiliates against any Losses incurred by the Company in respect of
this Deposit Agreement to the extent such Losses are due to the negligence or bad faith of the
Depositary or the Custodian or any of their agents acting in such capacity hereunder.
Notwithstanding the above, in no event shall the Depositary or any of its directors, officers,
employees, agents and/or Affiliates be liable for any indirect, special, punitive or consequential
damages to the Company, Holders, Beneficial Owners or any other person.
Any person seeking indemnification hereunder (an “Indemnified Person”) shall notify the person
from whom it is seeking indemnification (the “Indemnifying Person”) of the commencement of any
indemnifiable action or claim promptly after such Indemnified Person becomes aware of such
commencement (provided that the failure to make such notification shall not affect such Indemnified
Person’s rights to indemnification except to the extent the Indemnifying Person is materially
prejudiced by such failure) and shall consult in good faith with the Indemnifying Person as to the
conduct of the defense of such action or claim that may give rise to an indemnity hereunder, which
defense shall be reasonable under the circumstances. No Indemnified Person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder without the consent of the
Indemnifying Person, which consent shall not be unreasonably withheld.
The obligations set forth in this Section shall survive the termination of this Deposit
Agreement and the succession or substitution of any party hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the Beneficial
Owners, and persons depositing Shares or surrendering ADSs for cancellation and withdrawal of
Deposited Securities shall be required to pay to the Depositary the Depositary’s fees and related
charges identified as payable by them respectively as provided for under Article (9) of the
Receipt. All fees and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and charges payable by
Holders and Beneficial Owners, only in the manner contemplated in Section 6.1. The Depositary
shall provide, without charge, a copy of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to the payment of any
additional remuneration to the Depositary in respect of any exceptional duties which the Depositary
finds necessary or desirable and agreed by both parties in the performance of its obligations
hereunder and in respect of the actual costs and expenses of the Depositary in respect of any
notices required to be given to the Holders in accordance with Section 6.1 hereof.
In connection with any payment by the Company to the Depositary:
35
| (i) | all fees, taxes, duties, charges, costs and expenses which are payable by the Company shall be paid or be procured to be paid by the Company (and any such amounts which are paid by the Depositary shall be reimbursed to the Depositary by the Company upon demand therefor); and | ||
| (ii) | such payment shall be subject to all necessary applicable exchange control and other consents and approvals having been obtained. The Company undertakes to use its reasonable endeavours to obtain all necessary approvals that are required to be obtained by it in this connection. |
The Company agrees to promptly pay to the Depositary such other expenses, fees and charges and
to reimburse the Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree to from time to time. Responsibility for payment of such charges may at any time and from
time to time be changed by agreement between the Company and the Depositary. In the discretion of
the Depositary, the Depositary shall present its statement for such expenses and fees or charges to
the Company upon receipt or payment of any relevant invoice by the Depositary, once every three
months, semiannually or annually.
All payments by the Company to the Depositary under this Section 5.9 shall be paid without
set-off or counterclaim, and free and clear of and without deduction or withholding for or on
account of, any present or future taxes, levies, imports, duties, fees, assessments or other
charges of whatever nature, imposed by law, rule, regulation, court, tribunal or by any department,
agency or other political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
The right of the Depositary to receive payment of fees, charges and expenses as provided above
shall survive the termination of this Deposit Agreement. As to any Depositary, upon the
resignation or removal of such Depositary as described in Section 5.4 hereof, such right shall
extend for those fees, charges and expenses incurred prior to the effectiveness of such resignation
or removal.
SECTION 5.10 Restricted Securities Owners/Ownership Restrictions. From time to time
or upon the reasonable request of the Depositary, the Company shall provide to the Depositary a
list setting forth, to the actual knowledge of the Company, those persons or entities who
beneficially own Restricted Securities and the Company shall update such list on a regular basis.
The Depositary may rely on such list or update but shall not be liable for any action or omission
made in reliance thereon. The Company agrees to advise in writing each of the persons or entities
who, to the knowledge of the Company, holds Restricted Securities that such Restricted Securities
are ineligible for deposit hereunder (except under the circumstances contemplated in Section 2.11)
and, to the extent practicable, shall require each of such persons to represent in writing that
such person will not deposit Restricted Securities hereunder (except under the circumstances
contemplated in Section 2.11).
36
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of this Section
6.1 and applicable law, the Receipts outstanding at any time, the provisions of this Deposit
Agreement and the form of Receipt attached hereto and to be issued under the terms hereof may at
any time and from time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable without the consent of
the Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any
fees or charges (other than charges in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or which shall otherwise
materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding Receipts until 30 days after notice of such amendment
or supplement shall have been given to the Holders of outstanding Receipts. The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or the Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose or increase any
fees or charges to be borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such American Depositary
Share or Shares, to consent and agree to such amendment or supplement and to be bound by the
Deposit Agreement as amended and supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement
and the Receipt at any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances may become effective before
a notice of such amendment or supplement is given to Holders or within any other period of time as
required for compliance with such laws, rules or regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written direction
of the Company, terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 60 days prior to the date fixed in such notice
for such termination, provided that, the Depositary shall be reimbursed for any amounts, fees,
costs or expenses owed to it in accordance with the terms of this Deposit Agreement and in
accordance with any other agreements as otherwise agreed in writing between the Company and the
Depositary from time to time, before such termination shall take effect. If 60 days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor depositary shall
37
not have been appointed and accepted its appointment as provided in Section 5.4, the Depositary may
terminate this Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such termination. On and
after the date of termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Section 2.6 and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes and/or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Registrar thereafter shall discontinue the registration of transfers
of Receipts, and the Depositary shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other distributions pertaining
to Deposited Securities, shall sell rights or other property as provided in this Deposit Agreement,
and shall continue to deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.6, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and any applicable
taxes and/or governmental charges or assessments). At any time after the expiration of six months
from the date of termination of this Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and American Depositary Shares, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of this Deposit Agreement and any applicable taxes and/or governmental charges or
assessments) and for any of its obligations to the Company under this Agreement. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary hereunder. The obligations
under the terms of the Deposit Agreement and Receipts of Holders and Beneficial Owners of ADSs
outstanding as of the effective date of any termination shall survive such effective date of
termination and shall be discharged only when the applicable ADSs are presented by their Holders to
the Depositary for cancellation under the terms of the Deposit Agreement and the Holders have each
satisfied any and all of their obligations hereunder (including, but not limited to, any payment
and/or reimbursement obligations which relate to prior to the effective date of termination but
which payment and/or reimbursement is claimed after such effective date of termination).
38
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same agreement. Copies of this Deposit Agreement shall be maintained
with the Depositary and shall be open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for the exclusive
benefit of the parties hereto (and their successors) and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person, except to the extent specifically
set forth in this Deposit Agreement. Nothing in this Deposit Agreement shall be deemed to give
rise to a partnership or joint venture among the parties hereto nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree that (i) the
Depositary and its Affiliates may at any time have multiple banking relationships with the Company
and its Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in
transactions in which parties adverse to the Company or the Holders or Beneficial Owners may have
interests and (iii) nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining such
relationships, or (b) obligate the Depositary or any of its Affiliates to disclose such
transactions or relationships or to account for any profit made or payment received in such
transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The Holders and
Beneficial Owners from time to time of American Depositary Shares shall be parties to the Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of any Receipt by
acceptance hereof or any beneficial interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail, air courier or cable, telex,
facsimile transmission or electronic transmission, confirmed by letter, addressed to Elster Group
SE, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: General Counsel with a copy to Elster
Solutions, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, Attention: Head of Investor
Relations, or to any other address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have been duly given if
personally delivered or sent by mail, air courier or cable, telex, facsimile transmission or by
electronic transmission (if agreed by the Company and the Depositary), at the Company’s
39
expense,
unless otherwise agreed in writing between the Company and the Depositary, confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Attention: ADR Department, telephone: (▇▇▇) ▇▇▇ ▇▇▇-▇▇▇▇, facsimile: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇ or to
any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex, facsimile transmission or by electronic
transmission (if agreed by the Company and the Depositary), at the Company’s expense, unless
otherwise agreed in writing between the Company and the Depositary, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the Depositary, or, if
such Holder shall have filed with the Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address specified in such request. Notice to Holders
shall be deemed to be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex, facsimile or electronic
transmission shall be deemed to be effective at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a cable, telex, facsimile or electronic
transmission) is deposited, postage prepaid, in a post-office letter box or delivered to an air
courier service. The Depositary or the Company may, however, act upon any cable, telex, facsimile
or electronic transmission received by it from the other or from any Holder, notwithstanding that
such cable, telex, facsimile or electronic transmission shall not subsequently be confirmed by
letter as aforesaid, as the case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the Receipts
shall be interpreted in accordance with, and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, the laws of the State of New York without reference to the
principles of choice of law thereof. Except as set forth in the following paragraph of this Section
7.6, the Company and the Depositary agree that the federal or state courts in the City of New York
shall have jurisdiction to hear and determine any suit, action or proceeding and to settle any
dispute between them that may arise out of or in connection with this Deposit Agreement and, for
such purposes, each irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers Elster Solutions, LLC (the “Process
Agent”), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Head of Investor Relations, as its
authorized agent to receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, in any manner permitted by applicable law, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the preceding sentence or
in the next paragraph of this Section 7.6. If for any reason the Process Agent shall cease to be
available to act as such, the Company agrees to designate a new agent in the City of New York on
the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices and documents in any manner
permitted by applicable law in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Process Agent (whether or not the
40
appointment of such Process Agent
shall for any reason prove to be ineffective or such Process Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5 hereof. The Company agrees that the failure
of the Process Agent to give any notice of such service to it shall not impair or affect in any way
the validity of such service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally agree that in
the event that a Holder or Beneficial Owner brings a suit, action or proceeding against (a) the
Company, (b) the Depositary in its capacity as Depositary under this Deposit Agreement or (c)
against both the Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or otherwise, against each
other arising out of the subject matter of such suit, action or proceeding, then the Company and
the Depositary may pursue such claim against each other in the state or federal court in the United
States in which such suit, action, or proceeding is pending, and for such purposes, the Company and
the Depositary irrevocably submit to the non-exclusive jurisdiction of such courts. The Company
agrees that service of process upon the Process Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or proceeding brought against it
as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any actions, suits or
proceedings brought in any court as provided in this Section 7.6, and hereby further irrevocably
and unconditionally waives and agrees, as permitted by applicable law, not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court has been brought in
an inconvenient forum.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR
AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR
THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
The provisions of this Section 7.6 shall survive any termination of this Deposit Agreement, in
whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof, this Deposit
Agreement may not be assigned by either the Company or the Depositary.
41
SECTION 7.8 Agents. The Depositary shall be entitled, in its sole but reasonable
discretion, to appoint one or more agents (the “Agents”) of which it shall have control for the
purpose, inter alia, of making distributions to the Holders or otherwise carrying out its
obligations under this Agreement.
SECTION 7.9 Exclusivity. The Company agrees not to appoint any other depositary for
the issuance or administration of depositary receipts evidencing any class of stock of the Company
so long as Deutsche Bank Trust Company Americas is acting as Depositary hereunder.
SECTION 7.10 Compliance with U.S. Securities Laws. Notwithstanding anything in this
Deposit Agreement to the contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended from time to time, under
the Securities Act.
SECTION 7.11 Titles; References. All references in this Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the exhibits, articles,
sections, subsections and other subdivisions of this Deposit Agreement unless expressly provided
otherwise. The words “this Deposit Agreement”, “herein”, “hereof”, “hereby”, “hereunder”, and
words of similar import refer to the Deposit Agreement as a whole as in effect between the Company,
the Depositary and the Holders and Beneficial Owners of ADSs and not to any particular subdivision
unless expressly so limited. Pronouns in masculine, feminine and neuter gender shall be construed
to include any other gender, and words in the singular form shall be construed to include the
plural and vice versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in construing the language
contained in this Deposit Agreement. References to applicable laws and regulations, including those
of Germany, shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities as
in effect at the relevant time of determination, unless otherwise required by law or regulation.
42
IN WITNESS WHEREOF, ELSTER GROUP SE and DEUTSCHE BANK TRUST COMPANY AMERICAS have duly
executed this Deposit Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of American Depositary Shares
evidenced by Receipts issued in accordance with the terms hereof.
| ELSTER GROUP SE |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
43
EXHIBIT A
| Number | CUSIP: [•] |
American Depositary Shares (Each
American Depositary Share
representing one-fourth of a Fully
Paid Ordinary Share)
American Depositary Share
representing one-fourth of a Fully
Paid Ordinary Share)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
(Incorporated under the laws of Germany)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the “Depositary”), hereby
certifies that is the owner of American Depositary Shares (hereinafter
“ADSs”), representing deposited ordinary shares, including evidence of rights to receive such
ordinary shares, (the “Shares”) of ELSTER GROUP SE, a European public limited liability company
(Societas Europaea, or SE) organized under the laws of the Federal Republic of Germany (“Germany”)
and the European Union (the “EU”) (the “Company”). As of the date of the Deposit Agreement
(hereinafter referred to), each ADS represents one-fourth of a Share deposited under the Deposit
Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Deutsche Bank AG, Frankfurt Branch (the
“Custodian”). The ratio of ADSs to Shares is subject to subsequent amendment as provided in Article
IV of the Deposit Agreement. The Depositary’s Principal Office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an issue of
American Depositary Receipts (“Receipts”), all issued and to be issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of [•], 2010 (as amended from time to time,
the “Deposit Agreement”), by and among the Company, the Depositary, and all Holders and Beneficial
Owners from time to time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
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conditions
thereof. The Deposit Agreement sets forth the rights and obligations of Holders and Beneficial
Owners of Receipts and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time, received in
respect of such Shares and held thereunder (such Shares, other securities, property and cash are
herein called “Deposited Securities”). Copies of the Deposit Agreement are on file at the Principal
Office of the Depositary and the Custodian.
Each owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein)
issued in accordance with the terms and conditions of the Deposit Agreement, shall be deemed for
all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on
its behalf and to take any and all actions contemplated in the Deposit Agreement and applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such
action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the
purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Association (as in effect on the
date of the Deposit Agreement) and are qualified by and subject to the detailed provisions of the
Deposit Agreement, to which reference is hereby made. All capitalized terms used herein which are
not otherwise defined herein shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs into DTC. Each
Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such ADSs. The Receipt
evidencing the ADSs held through DTC will be registered in the name of a nominee of DTC. So long
as the ADSs are held through DTC or unless otherwise required by law, ownership of beneficial
interests in the Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon surrender, at
the Principal Office of the Depositary, of ADSs evidenced by this Receipt for the purpose of
withdrawal of the Deposited Securities represented thereby, and upon payment of (i) the fees and
charges of the Depositary for the making of withdrawals and cancellation of Receipts (as set forth
in Article (9) hereof or in Section 5.9 of the Deposit Agreement) and (ii) all applicable taxes
and/or governmental charges payable in connection with such surrender and withdrawal, and, subject
to the terms and conditions of the Deposit Agreement, the Company’s Articles of Association,
Section 7.8 of the Deposit Agreement, Article (21) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder hereof is entitled to
Delivery, to him or upon his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such Deposited Securities
may be delivered in certificated form or by electronic delivery. ADSs may be surrendered for
the
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purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing such ADSs (if
held in certificated form) or by book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the Depositary, be properly
endorsed in blank or accompanied by proper instruments of transfer in blank, and if the Depositary
so requires, the Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or
upon the written order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the designated office of the
Custodian (subject to the terms and conditions of the Deposit Agreement, to the Company’s Articles
of Association, and to the provisions of or governing the Deposited Securities and applicable laws,
now or hereafter in effect) or through a book entry Delivery of the Shares, to or upon the written
order of the person or persons designated in the order delivered to the Depositary as provided
above, the Deposited Securities represented by such ADSs, together with any certificate or other
proper documents of or relating to title for the Deposited Securities or evidence of the electronic
transfer thereof (if available) as the case may be to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a number of ADSs
representing a number of Shares other than a whole number of Shares. In the case of surrender of a
Receipt evidencing a number of ADSs representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) issue
and deliver to the person surrendering such Receipt a new Receipt evidencing ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional Shares represented by
the Receipt so surrendered and remit the proceeds thereof (net of (a) applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes and governmental charges) to the person
surrendering the Receipt. At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the Custodian to forward
(to the extent permitted by law) any cash or other property (other than securities) held in respect
of, and any certificate or certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such direction shall be given
by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission. Upon receipt by the Depositary, the Depositary may make delivery to such person or
persons at the Principal Office of the Depositary of any dividends or distributions with respect to
the Deposited Securities represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the terms and
conditions of the Deposit Agreement, the Registrar shall register transfers of Receipts on its
books, upon surrender at the Principal Office of the Depositary of a Receipt by the Holder thereof
in person or by duly authorized attorney, properly endorsed (in the case of a certificated Receipt)
or accompanied by proper instruments of transfer (including signature guarantees in accordance
with standard industry practice) and duly stamped as may be required by the laws of
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the State
of New York and of the United States of America and of any other applicable jurisdiction. Subject
to the terms and conditions of the Deposit Agreement, including payment of the applicable fees and
charges of the Depositary, and applicable laws, the Depositary shall execute a new Receipt or
Receipts (and if necessary, cause the Registrar to countersign such Receipt(s)) and deliver the
same to or upon the order of the person entitled to such Receipts evidencing the same aggregate
number of ADSs as those evidenced by the Receipts surrendered. Upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts upon
payment of the applicable fees and charges of the Depositary, and subject to the terms and
conditions of the Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same aggregate number of ADSs
as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, registration of transfer, split-up, subdivision combination or surrender of
any Receipt, the delivery of any distribution thereon or withdrawal of any Deposited Securities,
the Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter
of the Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any applicable fees and charges
of the Depositary as provided in the Deposit Agreement and in this Receipt, (ii) the production of
proof satisfactory to it as to the identity and genuineness of any signature or any other matters
and (iii) compliance with (A) any laws or governmental regulations relating to the execution and
delivery of Receipts and ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the issuance of ADSs against the deposit of particular Shares may be
withheld, or the registration of transfer of Receipts in particular instances may be refused, or
the registration of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed necessary or advisable
by the Depositary or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any securities exchange
upon which the Receipts or Shares are listed, or under any provision of the Deposit Agreement or
provisions of, or governing, the Deposited Securities or any meeting of shareholders of the Company
or for any other reason, subject in all cases to Article (23) hereof. Notwithstanding any provision
of the Deposit Agreement or this Receipt to the contrary, the Holders of Receipts are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the Company or the
deposit of Shares in connection with voting at a shareholders’ meeting or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws
or governmental regulations relating to the Receipts or to the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such
General Instructions may be amended from time to time). Without limitation of the foregoing,
the Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares
A-4
or
other Deposited Securities required to be registered under the provisions of the U.S. Securities
Act, unless a registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other provision of the
Deposit Agreement or this Receipt, each Holder and Beneficial Owner of the ADSs represented hereby
agrees to comply with requests from the Company pursuant to applicable German and EU law, the
rules and requirements of the New York Stock Exchange, and of any stock exchange on which the
Shares are, or will be registered, traded or listed, the Company’s Articles of Association, which
are made to provide information as to the capacity in which such Holder or Beneficial Owner owns
ADSs and regarding the identity of any other person interested in such ADSs and the nature of such
interest and various other matters whether or not they are Holders and/or Beneficial Owner at the
time of such request. The Depositary agrees to use reasonable efforts to forward any such requests
to the Holders and to forward to the Company any such responses to such requests received by the
Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with respect to any
Shares, Deposited Securities, Receipts or ADSs, such tax, or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary and such Holders and Beneficial
Owners shall be deemed liable therefor. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited Securities and may sell for
the account of the Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, with the Holder and the Beneficial Owner hereof remaining fully liable for
any deficiency. In addition to any other remedies available to it, the Depositary and the
Custodian may refuse the deposit of Shares, and the Depositary may refuse to issue ADSs, to deliver
ADSs, register the transfer, split-up or combination of ADRs and (subject to Article (23) hereof)
the withdrawal of Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian and each of their respective agents, officers, directors, employees and
Affiliates for, and hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts received on conversion are
calculated at a rate which may exceed the number of decimal places used by the Depositary to report
distribution rates (which in any case will not be less than two decimal places). Any excess amount
may be retained by the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to escheatment.
(7) Representations and Warranties of Depositors. Each person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
Shares (and the certificates therefor) are duly authorized, validly issued, fully paid,
non-assessable and were legally obtained by such person, (ii) all preemptive (and similar) rights,
if
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any, with respect to such Shares, have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim and are not, and the
ADSs issuable upon such deposit will not be, Restricted Securities (except as contemplated by
Section 2.11), (v) the Shares presented for deposit have not been stripped of any rights or
entitlements and (vi) the Shares are not subject to any lock-up agreement with the Company or other
party or the Shares are subject to a lock-up agreement bus such lock-up agreement has terminated or
the lock-up restrictions imposed thereunder have expired. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance, cancellation and transfer of
ADSs. If any such representations or warranties are false in any way, the Company and Depositary
shall be authorized, at the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(8) Filing Proofs, Certificates and Other Information. Any person presenting Shares
for deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs, Receipts and Deposited Securities,
compliance with applicable laws, regulations and the terms of the Deposit Agreement and the
provisions of, or governing, the Deposited Securities or other information as the Depositary deems
necessary or proper or as the Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement. Subject to Article (23) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable, may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale of any dividend or
other distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation are provided.
(9) Charges of Depositary. Holders, Beneficial Owners, persons delivering Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of Deposited Securities will
be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other governmental charges;
(ii) such registration fees as may from time to time be in effect for the registration
of Shares or other Deposited Securities with the Foreign Registrar and applicable to
transfers of Shares or other Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex , facsimile and electronic transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of Foreign
Currency;
A-6
(v) such fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory requirements applicable to
Shares, Deposited Securities, ADSs and ADRs;
(vi) the fees and expenses incurred by the Depositary in connection with the delivery
of Deposited Securities, including any fees of a central depository for securities in the
local market, where applicable; and
(vii) any additional fees, charges, costs or expenses that may be incurred from time to
time by the Depositary and/or any of the Depositary’s agents, including the Custodian,
and/or agents of the Depositary’s agents in connection with the servicing of Shares,
Deposited Securities and/or American Depositary Shares (such fees, charges, costs or
expenses to be assessed against Holders of record as at the date or dates set by the
Depositary as it sees fit and collected at the sole discretion of the Depositary by billing
such Holders for such fee or by deducting such fee from one or more cash dividends or other
cash distributions).
Any other charges and expenses of the Depositary under the Deposit Agreement will be paid by
the Company upon agreement between the Depositary and the Company. All fees and charges may, at
any time and from time to time, be changed by agreement between the Depositary and Company but, in
the case of fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (21) of this Receipt.
(10) Title to Receipts. It is a condition of this Receipt, and every successive
Holder of this Receipt by accepting or holding the same consents and agrees, that title to this
Receipt (and to each ADS evidenced hereby) is transferable by delivery of the Receipt, provided it
has been properly endorsed or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New York. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this Receipt (that is,
the person in whose name this Receipt is registered on the books of the Depositary) as the absolute
owner hereof for all purposes. The Depositary shall have no obligation or be subject to any
liability under the Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s
representative is the Holder registered on the books of the Depositary.
(11) Validity of Receipt. This Receipt shall not be entitled to any benefits under
the Deposit Agreement or be valid or enforceable for any purpose, unless this Receipt has been (i)
dated, (ii) signed by the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) if a Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized signatory of the Registrar and (iv) registered
in the books maintained by the Depositary or the Registrar, as applicable, for the issuance and
transfer of Receipts. Receipts bearing the facsimile signature of a duly-authorized signatory of
the Depositary or the Registrar, who at the time of signature was a duly-authorized signatory of
the Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the execution and
delivery of such Receipt by the Depositary or did not hold such office on the date of issuance of
such Receipts.
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(12) Available Information; Reports; Inspection of Transfer Books. The Company is
subject to the periodic reporting requirements of the Exchange Act applicable to foreign private
issuers (as definied in Rule 405 under the Securities Act) and accordingly files certain
information with the Commission. These reports and documents can be retrieved from the
Commission’s website (▇▇▇.▇▇▇.▇▇▇) and can be inspected and copied at the public reference
facilities maintained by the Commission located at the date of this Agreement at ▇▇▇ ▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The Depositary shall make available during normal business hours on any Business Day for
inspection by Holders at its Principal Office any reports and communications, including any proxy
soliciting materials, received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary or the Registrar, as applicable, shall keep books for the registration of
Receipts and transfers of Receipts in accordance with the laws and regulations applicable to the
Depositary and such books shall at all reasonable times be open for inspection by the Company and
by the Holders of such Receipts, provided that such inspection shall not be, to the Depositary’s or
the Registrar’s knowledge, for the purpose of communicating with Holders of such Receipts in the
interest of a business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer books with respect to
the Receipts, at any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the reasonable written
request of the Company subject, in all cases, to Article (23) hereof.
| Dated: | DEUTSCHE BANK TRUST COMPANY AMERICAS, as Depositary |
|||
| By: | ||||
| Vice President | ||||
| By: | ||||
| Vice President | ||||
The address of the Principal Office of the Depositary is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇.
A-8
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the Depositary
receives confirmation from the Custodian of receipt of any cash dividend or other cash distribution
on any Deposited Securities, or receives proceeds from the sale of any Shares, rights securities or
other entitlements under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the judgment of the Depositary (upon the
terms of the Deposit Agreement), be converted on a practicable basis, into Dollars transferable to
the United States, promptly convert or cause to be converted such dividend, distribution or
proceeds into Dollars and will distribute promptly the amount thus received (net of applicable fees
and charges of, and expenses incurred by, the Depositary and taxes and governmental charges
withheld) to the Holders of record as of the ADS Record Date in proportion to the number of ADSs
representing such Deposited Securities held by such Holders respectively as of the ADS Record Date.
The Depositary shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional amounts shall be rounded to
the nearest whole cent and so distributed to Holders entitled thereto. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on account of taxes,
duties or other governmental charges, the amount distributed to Holders on the ADSs representing
such Deposited Securities shall be reduced accordingly. Such withheld amounts shall be forwarded by
the Company, the Custodian or the Depositary to the relevant governmental authority. Any Foreign
Currency received by the Depositary shall be converted upon the terms and conditions set forth in
the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or their nominees.
Upon receipt of confirmation of such deposit, the Depositary shall, subject to and in accordance
with the Deposit Agreement, establish the ADS Record Date and either (i) distribute to the Holders
as of the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as such dividend, or
free distribution, subject to the terms of the Deposit Agreement (including, without limitation,
the applicable fees and charges of, and expenses incurred by, the Depositary, and taxes), or (ii)
if additional ADSs are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights and interests in
the additional Shares distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary, and taxes and
governmental charges). In lieu of delivering fractional ADSs, the Depositary shall sell the number
of Shares represented by the aggregate of such fractions and distribute the proceeds upon the terms
set forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any distribution in property (including
Shares) is subject to any tax or other governmental charges which the Depositary is obligated to
withhold, or, (y) if the Company, in the fulfillment of its obligations under the
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Deposit
Agreement, has either (a) furnished an opinion of U.S. counsel determining that Shares must be
registered under the Securities Act or other laws in order to be distributed to Holders (and no
such registration statement has been declared effective), or (b) fails to timely deliver the
documentation contemplated in the Deposit Agreement, the Depositary may dispose of all or a portion
of such property (including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary and practicable, and
the Depositary shall distribute the net proceeds of any such sale (after deduction of taxes and/or
governmental charges and fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms of the Deposit Agreement. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an elective distribution to
be made available to Holders upon the terms described in the Deposit Agreement, the Depositary
shall, upon provision of all documentation required under the Deposit Agreement, determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary shall, subject to
the terms and conditions of the Deposit Agreement, establish an ADS Record Date according to
Article (14) hereof and establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to receive the
distribution in cash, the dividend shall be distributed as in the case of a distribution in cash.
If the Holder hereof elects to receive the distribution in additional ADSs, the distribution shall
be distributed as in the case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable or if the
Depositary did not receive satisfactory documentation set forth in the Deposit Agreement, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in Germany and the EU in respect of the Shares for which no election is
made, either (x) cash or (y) additional ADSs representing such additional Shares, in each case,
upon the terms described in the Deposit Agreement. Nothing herein shall obligate the Depositary to
make available to the Holder hereof a method to receive the elective distribution in Shares (rather
than ADSs). There can be no assurance that the Holder hereof will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders of Shares.
Upon receipt by the Depositary of a notice indicating that the Company wishes rights to
subscribe for additional Shares to be made available to Holders, the Company shall determine
whether it is lawful and reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to any Holders only if the Company shall have timely
requested that such rights be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have determined that such
distribution of rights is lawful and reasonably practicable. If such conditions are not satisfied,
the Depositary shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date and establish procedures (x)
to distribute such rights (by means of warrants or otherwise) and (y) to enable the Holders to
exercise the rights (upon payment of the applicable fees and charges of, and expenses incurred by, the Depositary and taxes and other
governmental charges). Nothing herein or in
the Deposit Agreement shall obligate the Depositary to make available to the
A-10
Holders a method to
exercise such rights to subscribe for Shares (rather than ADSs). If (i) the Company does not
timely request the Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not lawful or reasonably
practicable to make the rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity or otherwise, at such
place and upon such terms (including public and/or private sale) as it may deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes and governmental charges)
upon the terms hereof and in the Deposit Agreement. If the Depositary is unable to make any rights
available to Holders or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or practicable to make such rights available to Holders
in general or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or exercise, or (iii) the content of any materials forwarded to the
Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein to the contrary, if registration (under the Securities Act
and/or any other applicable law) of the rights or the securities to which any rights relate may be
required in order for the Company to offer such rights or such securities to Holders and to sell
the securities represented by such rights, the Depositary will not distribute such rights to the
Holders (i) unless and until a registration statement under the Securities Act (and/or such other
applicable law) covering such offering is in effect or (ii) unless the Company furnishes to the
Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in
any other applicable country in which rights would be distributed, in each case satisfactorily to
the Depositary, to the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the provisions of the
Securities Act or any other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges, the amount
distributed to the Holders shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes and charges.
There can be no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to exercise rights on the same terms and conditions as the holders of Shares or to
exercise such rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
A-11
Upon receipt of a notice regarding property other than cash, Shares or rights to purchase
additional Shares, to be made to Holders, the Depositary shall determine whether such distribution
to Holders is lawful and practicable. The Depositary shall not make such distribution unless (i)
the Company shall have timely requested the Depositary to make such distribution to Holders, (ii)
the Depositary shall have received the documentation required by the Deposit Agreement, and (iii)
the Depositary shall have determined that such distribution is lawful and reasonably practicable.
Upon satisfaction of such conditions, the Depositary shall distribute the property so received to
the Holders of record as of the ADS Record Date, in proportion to the number of ADSs held by such
Holders respectively and in such manner as the Depositary may deem practicable for accomplishing
such distribution (i) upon receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes and governmental charges withheld.
The Depositary may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or cause such property to
be sold in a public or private sale, at such place or places and upon such terms as it may deem
proper and shall distribute the proceeds of such sale received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such property in any way
it deems reasonably practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any distribution
(whether in cash, Shares, rights or other distribution), or whenever for any reason the Depositary
causes a change in the number of Shares that are represented by each ADS, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents or proxies of,
holders of Shares or other Deposited Securities, or whenever the Depositary shall find it necessary
or convenient in connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date (“ADS Record Date”) as close as practicable to the record date fixed by the
Company with respect to the Shares (if applicable) for the determination of the Holders who shall
be entitled to receive such distribution, to give instructions for the exercise of voting rights at
any such meeting, or to give or withhold such consent, or to receive such notice or solicitation or
to otherwise take action, or to exercise the rights of Holders with respect to such changed number
of Shares represented by each ADS or for any other reason. Subject to applicable law and the terms
and conditions of this Receipt and the Deposit Agreement, only the Holders of record at the close
of business in New York on such ADS Record Date shall be entitled to receive such distributions, to
give such voting instructions, to receive such notice or solicitation, or otherwise take action.
The Depositary shall promptly notify any national securities exchange in the United States on which
the Company’s ADSs are listed of any action to fix a record date for the ADSs or to close the
transfer books for the ADSs.
(15) Voting of Deposited Securities. Subject to the next sentence, as soon
as practicable after receipt of notice of any meeting at which the holders of Shares are entitled
to
A-12
vote, or of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation
of consent or proxy. The Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if the request shall not
have been received by the Depositary at least 30 days prior to the date of such vote or meeting)
and at the Company’s expense and provided no U.S. legal prohibitions exist, mail by regular,
ordinary mail delivery (or by electronic mail or as otherwise may be agreed between the Company and
the Depositary in writing from time to time) or otherwise distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxy (as provided by the
Company); (b) a 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 in accordance with Sections 135 of the
German Stock Corporation Act (Aktiengesetz) (the “Proxy Bank”), setting forth its recommendations
with regard to voting of the Shares pursuant to Section 135(4) sentence 4 no. (1), (2) and (3) of
the German Stock Corporation Act as to any matter concerning which the notice from the Company
indicates that a vote is to be taken by holders of Shares, together with an English translation
thereof (the “Recommendation”); (c) a statement that the Holders at the close of business on the
ADS Record Date will be entitled, subject to any applicable law, the Company’s Articles of
Association and the provisions of or governing the Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder’s American Depositary Shares; and (d) a brief statement as to the manner
in which such instructions may be given, including an express indication that, if voting
instructions are not received prior to the record date set by the Depositary therefore or are not
specific, then the Holders shall in each case be deemed to have instructed the Depositary to vote
or cause the Proxy Bank to vote the Shares in accordance with the Recommendation, provided that the
taking of such actions does not violate any U.S. or German laws, or any terms of the Company’s
Articles of Association. Voting instructions may be given only in respect of a number of American
Depositary Shares representing an integral number of Shares or other Deposited Securities. Upon
the timely receipt of written instructions of a Holder of ADSs on the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of this Deposit Agreement, the
Company’s Articles of Association and the provisions of or governing the Deposited Securities, to
vote or cause the Custodian to vote the Shares and/or other Deposited Securities (in
person or by proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions.
Neither the Depositary nor the
Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall vote, attempt
to exercise the right to vote, or in any way make use of for purposes of establishing a quorum or
otherwise, the Shares or other Deposited Securities represented by ADSs except pursuant to and in accordance with the voting instructions timely received from Holders or the provisions of
the preceding paragraph.
Notwithstanding anything to the contrary in this Deposit Agreement, if the Proxy Bank shall
fail to supply the Recommendation to the Depositary at least 21 days prior to the date of the
A-13
meeting with respect to which the Depositary has received notice from the Company, the Depositary
shall mail such notice (which in this case will not contain the Recommendation or the indication
concerning the proxy to be given to the Proxy Bank) to the Holders as herein above provided, and,
thereafter, in any case in which no specific voting instructions are received by the Depositary
from a Holder, no voting instructions are received on or before the date established by the
Depositary for such purpose with respect to the Deposited Securities represented by ADSs, no votes
shall be cast at such meeting with respect to such Deposited Securities.
Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or solicitation of
consents or proxies from holders of Shares or other Deposited Securities if the taking of such
action would violate U.S. laws.
There can be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely manner.
(16) Changes Affecting Deposited Securities. Upon any change in par value, split-up,
subdivision cancellation, consolidation or any other reclassification of Deposited Securities, or
upon any recapitalization, reorganization, merger, amalgamation or consolidation or sale of assets
affecting the Company or to which it otherwise is a party, any securities which shall be received
by the Depositary or the Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under the Deposit Agreement, and the Receipts shall, subject to
the provisions of the Deposit Agreement and applicable law, evidence ADSs representing the right to
receive such additional securities. Alternatively, the Depositary may, with the Company’s approval,
and shall, if the Company shall so request, subject to the terms of the Deposit Agreement and
receipt of satisfactory documentation contemplated by the Deposit Agreement, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited Shares, with necessary modifications to this form of Receipt specifically
describing such new Deposited Securities and/or corporate change. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company’s approval, and shall if the Company requests, subject to receipt
of satisfactory legal documentation contemplated in the Deposit Agreement, sell such securities at
public or private sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of fees and charges of, and expenses incurred by, the
Depositary and taxes and governmental charges) for the account of the Holders otherwise entitled to
such securities and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement. The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or feasible to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in connection with such
sale, or (iii) any liability to the purchaser of such securities.
A-14
(17) Redemption. If the Company intends to exercise any right of redemption in
respect of any of the Deposited Securities in accordance with the Company’s Memorandum and Articles
of Association, the Company shall give notice thereof to the Depositary as soon as practicable
prior to the intended date of redemption which notice shall set forth the particulars of the
proposed redemption. Upon receipt of (i) such notice and (ii) satisfactory documentation given by
the Company to the Depositary, the Depositary shall mail to each Holder subject to the redemption a
notice setting forth the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company’s notice to the Depositary. The Depositary shall instruct the
Custodian to present to the Company the Deposited Securities in respect of which redemption rights
are being exercised against payment of the applicable redemption price as set forth in the
Company’s Memorandum and Articles of Association. Upon receipt of confirmation from the Custodian
that the redemption has taken place and that funds representing the redemption price have been
received, the Holders of ADSs representing the Deposited Securities subject to redemption shall
return their ADSs to the Depositary and the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (i) fees and charges of, and the expenses incurred by, the Depositary
and (ii) taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof. The
redemption price per ADS shall be the per share amount received by the Depositary upon the
redemption of the Deposited Securities represented by ADSs (subject to the terms of Section 4.6 of
the Deposit Agreement and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
(18) Exoneration. Neither the Depositary, the Custodian nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of the Deposit
Agreement or shall incur any liability (i) if the Depositary, the Custodian or the Company or their
respective controlling persons or agents shall be prevented or forbidden from, or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing or performing any act or
thing required by the terms of the Deposit Agreement and this Receipt, by reason of any provision
of any present or future law or regulation of the United States or any state thereof, Germany, the
EU or any other country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or restraints or by reason of
any provision, present or future of the Company’s Articles of Association or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or other circumstances
beyond its control, (including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement or in the Company’s Articles of Association or provisions of
or governing Deposited Securities, (iii) for any action or inaction of the Depositary, the
Custodian or the Company or their respective controlling persons or agents in reliance upon the
advice of or information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or information, (iv) for
any inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right or
other benefit which is made available to holders of Deposited Securities but is not, under the
terms of the Deposit Agreement, made available to Holders of ADSs (v) for any action or inaction by
the Proxy Bank or (vi) for any consequential, indirect or punitive damages for any
A-15
breach of the
terms of the Deposit Agreement. The Holders and Beneficial Owners shall indemnify the Depositary,
the Company, the Custodian and any of their respective officers, directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any governmental authority
with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes,
reduced rate of withholding at source or other tax benefit obtained. The Depositary, its
controlling persons, its agents, any Custodian and the Company, its controlling persons and its
agents may rely and shall be protected in acting upon any written notice, request, opinion or other
document believed by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement.
(19) Standard of Care. The Company and the Depositary and their respective agents
assume no obligation and shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons (except for the Company’s and the
Depositary’s obligations specifically set forth in Section 5.8 of the Deposit Agreement), provided,
that the Company and the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross negligence or willful
misconduct. The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
(provided that any such action or omission is in good faith) or the effect of any vote. The
Depositary shall not incur any liability for any failure to determine that any distribution or
action may be lawful or reasonably practicable, for the content of any information submitted to it
by the Company for distribution to the Holders or for any inaccuracy of any translation thereof,
for any investment risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of any third party,
for allowing any rights to lapse upon the terms of the Deposit Agreement or for the failure or
timeliness of any notice from the Company. The Depositary is under no obligation to provide the
Holders and Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be incurred by Holders
and Beneficial Owners on account of their ownership of the American Depositary Shares, including
without limitation, tax consequences resulting from the Company (or any of its subsidiaries) being
treated as a “Passive Foreign Investment Company” (as defined in the U.S. Internal Revenue Code and
the regulations issued thereunder) or otherwise. In no event shall the Depositary or any of its
directors, officers, employees, agents (including, without limitation, its Agents) and/or
Affiliates, or any of them, be liable for any indirect, special, punitive or consequential damages
to the Company, Holders, Beneficial Owners or any other person.
(20) Resignation and Removal of the Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice
of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the
60th day after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the Deposit Agreement,
save that, any amounts, fees, costs or expenses owed to the Depositary under the Deposit Agreement
or in accordance with any other agreements otherwise agreed in writing between the Company and the
Depositary from time to time shall be paid to the Depositary prior
A-16
to such resignation. The Company
shall use reasonable efforts to appoint such successor depositary, and give notice to the
Depositary of such appointment, not more than 60 days after delivery by the Depositary of written
notice of resignation as provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal which notice shall be effective on
the later of (i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement save that, any amounts, fees, costs or expenses owed to the Depositary under the
Deposit Agreement or in accordance with any other agreements otherwise agreed in writing between
the Company and the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use commercially reasonable efforts to appoint a successor depositary which shall be
a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every
successor depositary shall execute and deliver to its predecessor and to the Company an instrument
in writing accepting its appointment hereunder, and thereupon such successor depositary, without
any further act or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder (other than as contemplated in
the Deposit Agreement), (ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a list of the Holders
of all outstanding Receipts and such other books and records maintained by such predecessor and its
agents with respect to its function as Depositary hereunder. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
(21) Amendment/Supplement. Subject to the terms and conditions of this Article (21),
and applicable law, this Receipt and any provisions of the Deposit Agreement may at any time and
from time to time be amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees
or charges (other than charges in connection with foreign exchange control regulations, and taxes
and other governmental charges, delivery and other such expenses), or which shall otherwise
materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding Receipts until 30 days after notice of such amendment
or supplement shall have been given to the Holders of outstanding Receipts. The parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered
on Form F-6 under the Securities Act or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or
A-17
supplement impair the right of the Holder to surrender
such Receipt and receive therefor the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would require amendment or
supplement of the Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Receipt at any time in accordance with such
changed laws, rules or regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such laws, or rules or
regulations.
(22) Termination. The Depositary shall, at any time at the written direction of the
Company, terminate the Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 60 days prior to the date fixed in such notice for such
termination provided that, the Depositary shall be reimbursed for any amounts, fees, costs or
expenses owed to it in accordance with the terms of the Deposit Agreement and in accordance with
any other agreements as otherwise agreed in writing between the Company and the Depositary from
time to time, before such termination shall take effect. If 60 days shall have expired after (i)
the Depositary shall have delivered to the Company a written notice of its election to resign, or
(ii) the Company shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been appointed and accepted
its appointment as provided herein and in the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such Holder’s Receipt at
the Principal Office of the Depositary, upon the payment of the charges of the Depositary for the
surrender of Receipts referred to in Article (2) hereof and in the Deposit Agreement and subject to
the conditions and restrictions therein set forth, and upon payment of any applicable taxes and/or
governmental charges, be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further acts under the
Deposit Agreement, except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes and/or governmental
charges or assessments). At any time after the expiration of six months from the date of
termination of the Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, in an unsegregated account, without
A-18
liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all obligations under
the Deposit Agreement with respect to the Receipts and the Shares, Deposited Securities and ADSs,
except to account for such net proceeds and other cash (after deducting, or charging, as the case
may be, in each case the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes and/or governmental charges or assessments) and for any of its obligations to
the Company under this Agreement. Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations under the Deposit Agreement except as set forth in the Deposit
Agreement. The obligations under the terms of the Deposit Agreement and Receipts of Holders and
Beneficial Owners of ADSs outstanding as of the effective date of any termination shall survive
such effective date of termination and shall be discharged only when the applicable ADSs are
presented by their Holders to the Depositary for cancellation under the terms of the Deposit
Agreement and the Holders have each satisfied any and all of their obligations hereunder
(including, but not limited to, any payment and/or reimbursement obligations which relate to prior
to the effective date of termination but which payment and/or reimbursement is claimed after such
effective date of termination).
(23) Compliance with U.S. Securities Laws; Regulatory Compliance. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary except as would be
permitted by Instruction I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(24) Certain Rights of the Depositary; Limitations. Subject to the further terms and
provisions of this Article (24), the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its affiliates and in ADSs.
The Depositary may issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such evidence of rights
shall consist of written blanket or specific guarantees of ownership of Shares furnished on behalf
of the holder thereof. In its capacity as Depositary, the Depositary may, unless requested by the
Company in writing to cease doing so, (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt and cancellation
of ADSs pursuant to Section 2.6 of the Deposit Agreement, including ADSs which were issued
under (i) above but for which Shares may not have been received (each such transaction a
“Pre-Release Transaction”). The Depositary may receive ADSs in lieu of Shares under (i) above and
receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a)
accompanied by or subject to a written agreement whereby the person or entity (the “Applicant”) to
whom ADSs or Shares are to be delivered (1) represents that at the time of the Pre-Release
Transaction the Applicant or its customer beneficially owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (2) agrees to indicate the
Depositary as beneficial owner of such Shares or ADSs in its records and to hold such Shares or
ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (3) unconditionally guarantees to deliver to the Depositary or the Custodian, as
A-19
applicable, such Shares or ADSs and (4) agrees to any additional restrictions or requirements that
the Depositary deems appropriate; (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate; (c) terminable by the
Depositary on not more than five (5) business days’ notice; and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs and Shares involved in Pre-Release Transactions with
any one person on a case by case basis as it deems appropriate. The Company shall have no liability
to any Holder or Beneficial Owner with respect to any representations, action or omissions by the
Depositary, or any of its agents, pursuant to Section 2.10 of the Deposit Agreement. The Depositary
may retain for its own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be held for the benefit
of the Holders (other than the Applicant).
(25) Ownership Restrictions. Holders and Beneficial Owners shall comply with any
limitations on ownership of Shares under the Articles of Incorporation of the Company or applicable
German or EU law as if they held the number of Shares their ADSs represent.
(26) Waiver. EACH PARTY TO THE DEPOSIT AGREEMENT INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF
(WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
A-20
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby
sell(s), assign(s) and transfer(s) unto
__________________ whose taxpayer identification number is
__________________ and whose
address including postal zip code is ________________________, the within Receipt and all
rights thereunder, hereby irrevocably constituting and appointing __________________ attorney-in-fact to transfer said Receipt on the books of the Depositary with full power of
substitution in the premises.
| Dated: | Name: | |||
| By: | ||||
| Title: | ||||
| NOTICE: The signature of the Holder to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatsoever. | ||||
| If the endorsement be executed by an attorney, executor, administrator, trustee or guardian, the person executing the endorsement must give his/her full title in such capacity and proper evidence of authority to act in such capacity, if not on file with the Depositary, must be forwarded with this Receipt. | ||||
| SIGNATURE GUARANTEED |
||||
A-21
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS | 2 | |||||
SECTION 1.1 |
“Affiliate” | 2 | ||||
SECTION 1.2 |
“Agent” | 3 | ||||
SECTION 1.3 |
“American Depositary Share(s)” and “ADS(s)” | 3 | ||||
SECTION 1.4 |
“ADS Record Date” | 3 | ||||
SECTION 1.5 |
“Beneficial Owner” | 3 | ||||
SECTION 1.6 |
“Business Day” | 3 | ||||
SECTION 1.7 |
“Commission” | 3 | ||||
SECTION 1.8 |
“Company” | 3 | ||||
SECTION 1.9 |
“Custodian” | 3 | ||||
SECTION 1.10 |
“Deliver” and “Delivery” | 3 | ||||
SECTION 1.11 |
“Deposit Agreement” | 4 | ||||
SECTION 1.12 |
“Depositary” | 4 | ||||
SECTION 1.13 |
“Deposited Securities” | 4 | ||||
SECTION 1.14 |
“Dollars” and “$” | 4 | ||||
SECTION 1.15 |
“DRS/Profile” | 4 | ||||
SECTION 1.16 |
“DTC” | 4 | ||||
SECTION 1.17 |
“EU” | 4 | ||||
SECTION 1.18 |
“Exchange Act” | 4 | ||||
SECTION 1.19 |
“Foreign Currency” | 4 | ||||
SECTION 1.20 |
“Foreign Registrar” | 4 | ||||
SECTION 1.21 |
“Germany” | 5 | ||||
SECTION 1.22 |
“Holder” | 5 | ||||
SECTION 1.23 |
“Indemnified Person” and “Indemnifying Person” | 5 | ||||
SECTION 1.24 |
“Pre-Release” | 5 | ||||
SECTION 1.25 |
“Principal Office” | 5 | ||||
SECTION 1.26 |
“Receipt(s)”; “American Depositary Receipt(s)” and “ADR(s)” | 5 | ||||
SECTION 1.27 |
“Registrar” | 5 | ||||
SECTION 1.28 |
“Restricted ADR(s)”; “Restricted ADS(s)” | 5 | ||||
SECTION 1.29 |
“Restricted Securities” | 5 | ||||
SECTION 1.30 |
“Securities Act” | 6 | ||||
SECTION 1.31 |
“Shares” | 6 | ||||
SECTION 1.32 |
“United States” or “U.S.” | 6 | ||||
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER
OF RECEIPTS |
6 | |||||
SECTION 2.1 |
Appointment of Depositary | 6 | ||||
SECTION 2.2 |
Form and Transferability of Receipts | 6 | ||||
(i)
| Page | ||||||
SECTION 2.3 |
Deposits | 8 | ||||
SECTION 2.4 |
Execution and Delivery of Receipts | 9 | ||||
SECTION 2.5 |
Transfer of Receipts; Combination and Split-up of Receipts | 10 | ||||
SECTION 2.6 |
Surrender of Receipts and Withdrawal of Deposited Securities | 11 | ||||
SECTION 2.7 |
Limitations on Execution and Delivery, Transfer, etc. of Receipts; Suspension of Delivery, Transfer, etc. | 12 | ||||
SECTION 2.8 |
Lost Receipts, etc. | 13 | ||||
SECTION 2.9 |
Cancellation and Destruction of Surrendered Receipts; Maintenance of Records | 13 | ||||
SECTION 2.10 |
Pre-Release | 13 | ||||
SECTION 2.11 |
Restricted ADSs | 14 | ||||
| ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS | 15 | |||||
SECTION 3.1 |
Proofs, Certificates and Other Information | 15 | ||||
SECTION 3.2 |
Liability for Taxes and Other Charges | 16 | ||||
SECTION 3.3 |
Representations and Warranties on Deposit of Shares | 16 | ||||
SECTION 3.4 |
Compliance with Information Requests | 17 | ||||
| ARTICLE IV THE DEPOSITED SECURITIES | 18 | |||||
SECTION 4.1 |
Cash Distributions | 18 | ||||
SECTION 4.2 |
Distribution in Shares | 18 | ||||
SECTION 4.3 |
Elective Distributions in Cash or Shares | 19 | ||||
SECTION 4.4 |
Distribution of Rights to Purchase Shares | 20 | ||||
SECTION 4.5 |
Distributions Other Than Cash, Shares or Rights to Purchase Shares | 21 | ||||
SECTION 4.6 |
Conversion of Foreign Currency | 22 | ||||
SECTION 4.7 |
Fixing of Record Date | 23 | ||||
SECTION 4.8 |
Voting of Deposited Securities | 23 | ||||
SECTION 4.9 |
Changes Affecting Deposited Securities | 25 | ||||
SECTION 4.10 |
Available Information | 26 | ||||
SECTION 4.11 |
Reports | 26 | ||||
SECTION 4.12 |
List of Holders | 26 | ||||
SECTION 4.13 |
Taxation/Withholding | 27 | ||||
SECTION 4.14 |
Redemption | 28 | ||||
| ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY | 28 | |||||
SECTION 5.1 |
Maintenance of Office and Transfer Books by the ▇▇▇▇▇▇▇▇▇ | ▇▇ | ||||
SECTION 5.2 |
Exoneration | 29 | ||||
SECTION 5.3 |
Standard of Care | 30 | ||||
SECTION 5.4 |
Resignation and Removal of the Depositary; Appointment of Successor Depositary | 31 | ||||
SECTION 5.5 |
The Custodian | 32 | ||||
SECTION 5.6 |
Notices and Reports | 32 | ||||
SECTION 5.7 |
Issuance of Additional Shares, ADSs etc. | 33 | ||||
(ii)
| Page | ||||||
SECTION 5.8 |
Indemnification | 34 | ||||
SECTION 5.9 |
Fees and Charges of Depositary | 35 | ||||
SECTION 5.10 |
Restricted Securities Owners | 36 | ||||
| ARTICLE VI AMENDMENT AND TERMINATION | 37 | |||||
SECTION 6.1 |
Amendment/Supplement | 37 | ||||
SECTION 6.2 |
Termination | 38 | ||||
| ARTICLE VII MISCELLANEOUS | 39 | |||||
SECTION 7.1 |
Counterparts | 39 | ||||
SECTION 7.2 |
No Third-Party Beneficiaries | 39 | ||||
SECTION 7.3 |
Severability | 39 | ||||
SECTION 7.4 |
Holders and Beneficial Owners as Parties; Binding Effect | 39 | ||||
SECTION 7.5 |
Notices | 40 | ||||
SECTION 7.6 |
Governing Law and Jurisdiction | 40 | ||||
SECTION 7.7 |
Assignment | 42 | ||||
SECTION 7.8 |
Agents | 42 | ||||
SECTION 7.9 |
Exclusivity | 42 | ||||
SECTION 7.10 |
Compliance with U.S. Securities Laws | 42 | ||||
SECTION 7.11 |
Titles; References | 42 | ||||
| EXHIBIT A Form of Receipt | A-1 | |||||
(iii)