EXHIBIT 2
____________, 2006
MorphoSys AG,
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Re: Deposit Agreement dated as of ___________, 2006, (the "Deposit
Agreement") by and among MorphoSys AG, The Bank of New York, as
Depositary, and the Owners and Beneficial Owners of American
Depositary Receipts
Ladies and Gentlemen:
We refer to the Deposit Agreement. Capitalized terms defined in the
Deposit Agreement and not otherwise defined herein are used herein as defined in
the Deposit Agreement.
We hereby agree that, without the prior consent of the Company, (i) we
will not (a) Pre-Release Receipts or (b) permit any Pre-Release to remain
outstanding at any time, in each case except pursuant to a pre-release agreement
containing agreements, representations and warranties substantially to the
effect of Sections 3(a), 3(e), 4, 7(a) and 14 of the form of ADR Pre-Release
Agreement attached hereto (or, if the Pre-Release Agreement does not contain an
agreement substantially to the effect of the provisions of Section 14 of such
form, we will indemnify the Company to the same extent that the counterparty to
a Pre-Release would be required by said Section 14 to indemnify
the Company) and (ii) we will undertake a Pre-Release only pursuant to written
agreements that meet the requirements of Section 1058(b) of the United States
Internal Revenue Code of 1986 as amended.
We confirm that we currently do not, and do not intend to, make any
Pre-Release to any person until such person has undergone the Depositary's
standard credit review process.
If, after the date hereof, the Depositary's ADR Department is advised by
counsel that there has occurred a material change in the U.S. federal income tax
law (including judicial and administrative interpretations thereof) regarding
the treatment of Pre-Release, we agree to notify the Company promptly of such
change and to advise the Company as to the changes, if any, that we intend to
make, or have made, to the Pre-Release procedures then being followed by us as a
result of such change in the tax law. We will in good faith consult with the
Company and consider all suggestions, without any obligation on our part to
change our Pre-Release procedures.
We will indemnify and hold harmless the Company and each Owner from time
to time of a Receipt against all losses, claims, damages, liabilities and
expense (including reasonable attorneys' fees) based upon a breach by the
Depositary of any agreement of the Depositary set forth in this letter.
If any action or claim shall be brought against the Company in respect of
which indemnity may be sought pursuant to the preceding paragraph or the second
paragraph of this letter, the Company shall notify the Depositary in writing of
such action
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or claim giving reasonable details thereof. The Depositary shall have the option
of assuming the defense thereof, with counsel satisfactory to the Company (who
shall not, except with the consent of the Company, be counsel to the Depositary
in connection with such action or claim), and, after notice from the Depositary
to the Company of its election so to assume the defense thereof, the Depositary
shall not be liable to the Company or any other indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by the Company or any other indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No compromise or
settlement of such action or proceeding may be effected by either party without
the other party's consent (which shall not be unreasonably withheld) unless (i)
there is no finding or admission of any violation of law and no effect on any
other claims that may be made against such other party and (ii) the sole relief
provided is monetary damages that are paid in full by the party seeking such
compromise or settlement.
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EXHIBIT 2
Very truly yours,
THE BANK OF NEW YORK
as Depositary
By:
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Name: U. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President