As filed with the Securities and Exchange Commission on
February 6, 2003 Registration No. 333-11642
====================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 AS Amended FOR DEPOSITARY SHARES EVIDENCED BY
DEPOSITARY RECEIPTS
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INTERSHOP Communications Aktiengesellschaft
(Exact name of issuer of deposited securities as specified in its charter)
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INTERSHOP COMMUNICATIONS STOCK CORPORATION
(Translation of issuer's name into English)
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FEDERAL REPUBLIC OF GERMANY
(Jurisdiction of incorporation or organization of issuer)
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CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
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111 Wall Street
New York, New York 10043
(212) 657-5100
(Address, including zip code, and telephone number, including
area code, of Depositary's principal executive offices)
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CT Corporation System
111 Eighth Avenue
New York, New York 10011
212) 894-8940
(Name, address, including zip code, and telephone number, including
area code of agent for service)
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Copies to:
John W. Campbell, Esq. Frettra M. Miller, Esq.
Morrison & Foerster LLP Citibank, N.A.
425 Market Street 111 Wall Street 15th Floor Zone9
San Francisco, California 94105 New York, New York 10043
Telephone: (415) 268-7197 Telephone: (212) 657-2150
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It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box |_|.
This Post-Effective Amendment No. 2 to the Registration
Statement on Form F-6 (Commission File No. 333-11642) 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 instrument.
PART I
INFORMATION REQUIRED IN PROSPECTUS
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
CROSS REFERENCE SHEET
Item Number and Caption Location in Form of
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American Depositary
Receipt ("Receipt")
Filed Herewith as
Prospectus
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1. Name and address of Depositary Face of Receipt - Introductory
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Paragraph.
2. Title of Receipts and identity Face of Receipt - Top center
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of deposited securities and Introductory Paragraph.
Terms of Deposit:
(i) The amount of deposited Face of Receipt - Upper right
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securities represented by corner, introductory paragraph
one American Depositary
Share
(ii) The procedure for voting, Reverse of Receipt - Paragraphs
------------------
if any, the deposited (16) and (17).
securities
(iii)The collection and Reverse of Receipt - Paragraph
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distribution of dividends (14)
(iv) The transmission of Face of Receipt - Paragraphs
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notices, reports and proxy (13) and (16).
soliciting material
(v) The sale or exercise of Reverse of Receipt - Paragraphs
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rights (14) and (16).
(vi) The deposit or sale of Reverse of Receipt - Paragraphs
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securities resulting (14) and (18).
from dividends, splits or
plans of reorganization
(vii)Amendment, extension or Reverse of Receipt - Paragraphs
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termination of the deposit (22) and (23) (no provision for
agreement extension).
(viii)Rights of holders of Face of Receipt - Paragraph
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Receipts to inspect the (13).
transfer books of the
depositary and the list of
holders of Receipts
(ix) Restrictions upon the right Face of Receipt - Paragraphs
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to deposit or withdraw the (2), (3), (4), (6), (7) and (9).
underlying securities
(x) Limitation upon the Face of Receipt - Paragraph 7
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liability of the depositary Reverse of Receipt - Paragraphs
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(19) and (20);
3. Fees and charges which may be Face of Receipt - Paragraph (10)
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imposed directly or indirectly
against holders of Receipts
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraph (13)
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2(a). Intershop Communications AG is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended, and,
accordingly, files certain reports with the Securities and Exchange Commission
(the "Commission"). These reports and other information can be inspected and
copied at the public reference facility maintained by the Commission located at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
PROSPECTUS
The Prospectus consists of the Form of American Depositary
Receipt, included as Exhibit A to the Form of Amendment No. 2
to Deposit Agreement filed as Exhibit (a)(i) to this
Post-Effective Amendment No. 2 to Form F-6 Registration
Statement and incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a)(i) Form of Amendment No. 2 to Deposit Agreement, by and among
Intershop Communications AG, a Stock Corporation (Aktiengesellschaft) organized
under the laws of Germany and its successors (the "Company"), Citibank, N.A., a
national banking association organized under the laws of the United States of
America and acting solely as depositary (the "Depositary"), and all Holders and
Beneficial Owners of American Depositary Shares ("ADSs"), evidenced by American
Depositary Receipts ("ADRs"), issued thereunder including the amended Form of
ADR to be issued thereunder. Filed herewith as Exhibit (a)(i).
(a)(ii) Amendment No. 1 to Deposit Agreement, dated as of
February 25, 2002, by and among the Company, the Depositary, and all Holders
and Beneficial Owners of ADRs, evidencing ADSs, issued thereunder. Filed
herewith as Exhibit (a)(ii).
(a)(iii) Deposit Agreement, dated as of September 29, 2000, by
and among the Company, the Depositary, and all Holders and Beneficial Owners of
ADSs, evidenced by ADRs, issued thereunder, (including the form of American
Depositary Receipt to be issued thereunder).*
(b) Any other agreement, to which the Depositary is a party
relating to the issuance of the American Depositary Shares registered hereby or
the custody of the deposited securities represented thereby. - None.
(c) Every material contract relating to the deposited
securities between the Depositary and the Company in effect within the last
three years. - None.
(d) Opinion of counsel to the Depositary, as to the
legality of the securities to be registered.*
(e) Power of Attorney for the Company.*
(f) Rule 466 Certification - Filed herewith as Exhibit (f).
Item 4. UNDERTAKINGS
a) The Depositary hereby undertakes to make available at the principal office of
the Depositary in the United States, for inspection by holders of the ADRs, any
reports and communications received from the issuer of the deposited securities
which are both (1) received by the Depositary as the holder of the deposited
securities, and (2) made generally available to the holders of the underlying
securities by the issuer.
b) The Depositary hereby undertakes to prepare a separate document stating the
amount of any fee charged and describing the service for which it is charged and
to deliver promptly a copy of such fee schedule without charge to anyone upon
request. The Depositary undertakes to notify each registered holder of an ADR at
least thirty (30) days before any change in the fee schedule.
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*Previously filed and incorporated by reference to Registration Statement No.
333-11642
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, as
amended, Citibank, N.A., on behalf of the legal entity created by the Deposit
Agreement dated as of September 29, 2000, as amended by Amendment No. 1 to
Deposit Agreement, dated as of February 25, 2002, as proposed to be amended by
the form of Amendment No. 2 to Deposit Agreement (as so amended, the "Deposit
Agreement") by and among Intershop Communications Stock Corporation, Citibank,
N.A., as depositary, and all Holders and Beneficial Owners of American
Depositary Shares ("ADSs"), evidenced by American Depositary Receipts ("ADRs"),
issued thereunder, certifies that it has reasonable grounds to believe that all
the requirements for filing on Form F-6 are met and has duly caused this
Post-Effective Amendment No. 2 to Form F-6 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 5th day of February, 2003.
Legal entity created by the Deposit
Agreement for the issuance of American
Depositary Receipts evidencing American
Depositary Shares each representing one
(1) Bearer Ordinary Share, no par value,
of Intershop Communications Stock
Corporation, as amended by Amendment
No. 1 to Deposit Agreement and proposed
to be further amended by Form of
Amendment No. 2 to Deposit Agreement.
CITIBANK, N.A., as Depositary
By: /s/ Jo An Ward
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Name: Jo Ann Ward
Title: Vice President
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, INTERSHOP Communications Stock Corporation certifies that it has
reasonable grounds to believe that all the requirements for filing on Form F-6
are met and has duly caused this Post-Effective Amendment No. 2 to Form F-6
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Fina, on the 30th day of January, 2003.
INTERSHOP Communications Stock Corporation
By: /s/ Stephan Schambach
-----------------------------------
Name: Stephan Schambach
Title: Chairman of the Management
Board,
Chief Executive Officer and
Vorstandsversitzender
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 2 to Form F-6 Registration Statement
has been signed by the following persons in the capacities indicated on the
dates indicated.
Signatures Title Date
Chairman of the Management January 30, 2003
/s/ Stephan Schambach Board, Chief Executive
---------------------
Stephan Schambach Officer
Signature of Authorized Representative of the Registrant
Pursuant to the requirements of the Securities Act of 1933, the
undersigned, the duly authorized representative in the United States of the
registrant, has signed this Registration Statement on Form F-6, or amendment
thereto, in his capacity as an authorized officer of INTERSHOP Communications
Stock Corporation in ________________on February 3, 2003.
INTERSHOP COMMUNICATIONS STOCK CORPORATION
By: /s/ Gary Di Orio
------------------------------
Name: Gary Di Orio
Title: President
Index to Exhibits
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Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(a)(i) Form of Amendment No. 2
to Deposit Agreement
(a)(ii) Amendment No. 1 to
Deposit Agreement, dated
February 25, 2002
(f) Rule 466 Certification
(a)(i) Form of Amendment No. 2 to Deposit Agreement
INTERSHOP Communications Stock Corporation
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
--------------------------------
Amendment No. 2
to
Deposit Agreement
Dated as of ___________, 2003
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT, is made as of ___________, 2003
(the "Amendment"), by and among INTERSHOP Communications AG, a Stock Corporation
(Aktiengesellschaft) organized under the laws of Germany and its successors (the
"Company"), CITIBANK, N.A., a national banking association organized under the
laws of the United States of America and acting solely as depositary (the
"Depositary"), and all Holders and Beneficial Owners of American Depositary
Shares evidenced by American Depositary Receipts issued under the Deposit
Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Deposit
Agreement, dated as of September 29, 2000 as amended by Amendment No. 1 to
Deposit Agreement, dated as of February 25, 2002, as so amended (the "Deposit
Agreement"), to establish a facility to provide for the deposit of the Company's
Bearer Ordinary Shares no par value (the "Shares") and the creation of American
Depositary Receipts ("ADRs"), evidencing American Depositary Shares ("ADSs"),
representing the Shares so deposited and for the execution and delivery of such
ADRs evidencing such ADSs;
WHEREAS, the Company has elected to change the ratio of Shares to ADSs
(as set forth in Section 1.2 of the Deposit Agreement) from (i) five (5) Shares
to one (1) ADS to (ii) one (1) Share to one (1) ADS, and desires to amend the
Deposit Agreement to effect such change; and,
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the Form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
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all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
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SECTION 2.01. Deposit Agreement. All references in the Deposit
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Agreement to the term "Deposit Agreement" shall, as of the Effective Date (as
herein defined), refer to the Deposit Agreement, dated as of September 29, 2000,
as amended by Amendment No. 1 to Deposit Agreement, dated as of February 25,
2002, and as further amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Deposit
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Agreement to each ADS representing five (5) Shares shall, as of the Effective
Date (as defined herein), refer to each ADS representing one (1) Share.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. Change of Ratio. All references in the ADRs issued and
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outstanding as of the Effective Date made to each ADS representing five (5)
Shares shall as of the Effective Date (as defined herein) refer to each ADS
representing one (1) Share.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties. The Company
------------------------------
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence in Germany of this Amendment or the Deposit
Agreement as amended hereby, and any other document furnished hereunder
or thereunder, as of the date hereof, neither of such agreements need
to be filed or recorded with any court or other authority in Germany,
nor does any stamp or similar tax need to be paid in Germany on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
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SECTION 5.01. Effective Date. This Amendment is dated as of the
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date set forth above and shall be effective as of such date (the "Effective
Date").
SECTION 5.02. New Receipts. From and after the Effective Date, the
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Depositary shall arrange to have new ADRs printed or amended that reflect the
change to the form of Receipt effected by this Amendment. All Receipts issued
hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
change to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
------------------------------
directed to send notices informing the Holders of: (i) the terms of this
Amendment; (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
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harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the
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terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
SECTION 5.06. Counterparts. This Amendment may be executed in two or
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more parts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
INTERSHOP COMMUNICATIONS AG
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CITIBANK, N.A., as Depositary
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER: ________
American Depositary Shares (every one
American Depositary Share representing
one fully paid Bearer Ordinary Share, no
par value)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED BEARER ORDINARY SHARES
of
INTERSHOP Communications AG
(Incorporated in the Federal Republic of Germany
and registered under the laws of Germany)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________ is the owner of ___________
American Depositary Shares (hereinafter "ADS"), representing deposited Bearer
Ordinary Shares (the "Shares") of INTERSHOP Communications AG, a corporation
incorporated in the Federal Republic of Germany and registered under the laws of
Germany (the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), every one (1) ADS represents one (1) Share deposited under the Deposit
Agreement with the Custodian, which at the date of the execution of the Deposit
Agreement is Citibank Aktiengesellschaft (the "Custodian"). The ratio of
American Depositary Shares to Shares is subject to amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 111 Wall Street, New York, New York 10043, U.S.A.
(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 September 29, 2000 (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 American Depositary Shares ("ADSs")
evidenced by Receipts issued thereunder, each of whom by accepting an ADS (or an
interest therein) agrees to become a party thereto and becomes bound by all the
terms and 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, 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 with the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association (Satzung) of the Company (as in effect on the date of the signing of
the Deposit Agreement) and are qualified by and subject to the detailed
provisions of the Deposit Agreement and the Articles of Association (Satzung),
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.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
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The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at its
Principal Office the ADSs evidenced hereby (and, if applicable, this Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt has been properly endorsed
in blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereof) have been paid, subject, however, in each case, to the terms and
conditions of this Receipt, of the Deposit Agreement, of the Company's Articles
of Association (Satzung) and of any applicable laws and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so cancelled together with any certificate or
other document 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
upon the written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this Receipt, of the Articles of
Association (Satzung) of the Company, of applicable laws and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of surrender 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) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Shares represented by the
ADSs so 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
withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of stock
or rights, which may at the time be held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder surrendering ADSs represented by this
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 by the Custodian in respect of the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Principal Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfer of Receipts. The Registrar shall register the transfer of
--------------------
this Receipt (and of the ADSs represented thereby) on the books maintained for
such purpose and the Depositary shall cancel this Receipt and execute new
Receipts evidencing the same aggregate number of ADSs as those evidenced by this
Receipt when cancelled, shall cause the Registrar to countersign such new
Receipts, and shall Deliver such new Receipts to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (1)
this Receipt has been duly Delivered by the Holder (or by a duly authorized
agent or attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a transfer thereof, (ii) this Receipt has been properly
endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this Receipt has been duly stamped (if required by the laws of the State
of New York or of the United States), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement) have been paid, in each case, however, subject to the terms
and conditions of this Receipt, of the Deposit Agreement, of the Company's
Articles of Association and of applicable law, in each case as in effect at the
time thereof.
(b) Combination and Split-Up. The Registrar shall register the split-up
------------------------
or combination of this Receipt (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall cancel this Receipt and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by this Receipt (when cancelled), shall
cause the Registrar to countersign such new Receipts and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized agent or attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 and Exhibit B to the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this
Receipt, of the Deposit Agreement, of the Company's Articles of Association and
of applicable law, in each case, as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
---------------------------------------------
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of ADSs or of a 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 or the Company
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 delivery 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 outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary, a Registrar or the
Share Registrar 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 Share
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 (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders 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.(1) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(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 German law, the rules and requirements of the Neuer Markt of
the Frankfurt Stock Exchange, the Nasdaq National Market, and of any stock
exchange on which Shares or ADSs are or will be registered, traded or listed,
the Articles of Association (Satzung) of the Company, which are made to provide
information as to the capacity in which such Holder or Beneficial Owner owns
ADSs (or Shares, as the case may be) the number of shares held by such Holder or
Beneficial Owner and regarding the identity of any other persons then or
previously interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any such
requests to the Holders and to forward to the Company any such responses to such
requests received by the Depositary. Each Holder and each Beneficial Owner agree
to comply with all applicable provisions of German law and the Company's
Articles of Association regarding the notification of such person's interest in
Shares, which provisions at the date of the Agreement, the statutory
notification obligations of the Stock Corporation Act apply to any enterprise
that, either directly or by way of imputation pursuant to the provisions of
Section 16(4) of the Stock Corporation Act, owns more than 25% of the shares of,
or more than 50% of the shares of or the voting rights in, the Company or, after
having exceeded either of these thresholds, no longer owns more than 25% of the
shares or more than 50% of the shares or of the voting rights, respectively.
Each Holder and each Beneficial Owner acknowledge 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 has an interest
(6) Ownership Restrictions. The Company may restrict transfers of the
----------------------
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association (Satzung) of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of ADSs where such transfer may result in the total number of Shares represented
by the ADSs owned by a single Holder or Beneficial Owner to exceed any such
limits. The Company may, in its sole discretion but subject to applicable law,
instruct the Depositary to take action with respect to the ownership interest of
any Holder or Beneficial Owner in excess of the limits set forth in the
preceding sentence, including but not limited to the imposition of restrictions
on the transfer of ADSs, the removal or limitation of voting rights or a
mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the
Shares represented by the ADSs held by such Holder or Beneficial Owner in excess
of such limitations, if and to the extent such disposition is permitted by
applicable law and the Articles of Association (Satzung) of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax
-------------------------------------------------------
or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or 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, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article (24) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received; provided however,
that the Company shall incur no liability to any person on account of such
refusal. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
the Company, the Custodian and any of their agents, employees and Affiliates
for, and hold each of then 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.
(8) Representations and Warranties of Depositors. Each person
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depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (1) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares, have been validly waived, exercised or excluded, (iii) the
person making such deposit is duly authorized so to do and (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 and the Share presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such 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.
(9) 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 and 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 and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties and to provide such other information or documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of such Shares) as the Depositary or the Custodian
may deem 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 (24) 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 certificates are executed, or such representations and
warranties made or such information and documentation are provided, in each case
to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
---------------------
fees for the services performed under the terms of the Deposit Agreement:
(1) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or portion thereof) so issued under the terms of the
Deposit Agreement (excluding issuances pursuant to
paragraph (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, property or cash, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00
per 100 ADSs (or portion thereof) held for (a) the
distribution of cash dividends or other cash
distributions (i.e., sale of rights and other
entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of U.S.
$ 5.00 per 100 ADSs (or portion thereof) held for the
distribution of ADSs pursuant to (i) stock dividends or
other free stock distributions, or (ii) exercise of
rights; and
(v) To any Holder of ADRs wishing to transfer such ADRs a fee
of $1.50 per certificate presented.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person 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 on the share register 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 and facsimile 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;
(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, and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
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 (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the Depositary
(11) 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) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary 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 thereof for all purposes. The Depositary shall
have no obligation nor 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.
(12) Validity of Receipt. This Receipt (and the Americana Depositary
-------------------
Shares represented hereby) shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless this Receipt has been (1) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers 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 delivery of such Receipt by the
Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
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Company will be, on or before the date of the initial deposit of Shares
hereunder subject to the periodic reporting requirements of the Exchange Act and
accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549 and at the Commission's New York City office located at
Seven World Trade Center, 13th Floor, New York, New York 10048. The Depositary
shall make available 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 Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrars 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 Registrar 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 (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By:_______________________ By: ___________________
Authorized Representative Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) 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 reasonable
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 (upon the terms of the Deposit Agreement) and will
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADS held 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, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. 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 to the
relevant governmental authority.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall or 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 from the Custodian, 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, (a) the applicable fees and charges of. and expenses incurred by,
the Depositary and (b) 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 interest in
the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net (a) of the applicable fees and charges of,
and the expenses incurred by, the Depositary, and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary reasonably 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, if the
Company, in the fulfillment of its obligations under the Deposit Agreement, has
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), 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 (a) taxes and fees and (b) 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 Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by applicable law and subject to the terms and
conditions of the Deposit Agreement, and the Company's Articles of Association,
distribute either (x) cash as in the case of a cash distribution or (y)
additional ADSs representing such additional Shares as in the case of a
distribution of Shares. In either case, the Depositary shall, subject to the
terms and conditions of the Deposit Agreement, establish an ADS record date
according to paragraph (16) 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. Nothing herein or in the
Deposit Agreement 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 timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares (or any rights of any
other nature) to be made available to Holders of ADSs, the Depositary upon
consultation with 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 (i) the
Company shall request that such rights be made available to Holders, (ii) the
Depositary shall receive the documentation contemplated in the Deposit
Agreement, and (iii) the Depositary shall determine 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 (upon the terms described in the Deposit Agreement) and
establish procedures to distribute rights to purchase additional ADSs (by means
of warrants or otherwise) and 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). Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs). If (i) the Company does not
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 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, at
such place and upon such terms (including public and 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) upon the terms hereof and of 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, absent gross
negligence and provided the Depositary has made a good faith effort to perform
its obligations under this Agreement relevant to the specified circumstances,
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible 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 ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act 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 unless and until a registration statement
under the Securities Act (or other applicable law) covering such offering is in
effect. 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 of ADSs representing such Deposited
Securities 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 or 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 or in the Deposit Agreement 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.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall request the Depositary to make such
distribution to Holders, (ii) the Depositary shall receive the documentation
contemplated in the Deposit Agreement, and (iii) the Depositary shall determine
that such distribution is 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 them 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 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 (1) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) 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.
(15) Redemption. Upon timely receipt of notice from the Company that it
----------
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) mail to each Holder a notice setting forth the Company's intention
to exercise the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
the Deposit Agreement and the applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) multiplied by the number of Units or
Deposited Securities represented by each ADS redeemed.
(16) Fixing of Record Date. Whenever the Depositary shall receive
---------------------
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive 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, in cooperation with the Company, 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") for the
determination of the Holders of Receipts 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. Subject
to applicable law and the Company's Articles of Association and the terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such instructions, to receive
such notice or solicitation, or otherwise take action. The Depositary shall
promptly notify the Nasdaq National Market of any action to fix a record date
for the ADSs or to close the transfer books for the ADSs.
(17) Voting of Deposited Securities. 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 such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company and at the Company's
expense) mail to Holders: (a) such notice of meeting or solicitation of consent
or proxies, (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of Association
(Satzung) and the provisions of or governing Deposited Securities 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 ADS and
(c) a brief statement as to the manner in which such instructions may be given.
Upon the timely receipt of written instructions of a Holder of ADSs on the ADS
Record Date, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law and the provisions of the Articles of Association (Satzung)
of the Company and the provisions of the Deposited Securities, to vote or cause
the Custodian to vote the Shares and/or other Deposited Securities represented
by ADSs held by such Holder in accordance with such instructions.
If voting instructions are received by the Depositary from any Holder
on or before the date established by the Depositary for the receipt of such
instructions, which are signed but without further indication as to specific
instructions, the Depositary will deem such Holder to have instructed the
Depositary to vote in favor of the items set forth in such instructions. Shares
or other Deposited Securities represented by ADS for which no specific voting
instructions are received by the Depositary from the Holder shall not be voted.
Depositary in person, by its nominees or proxies or by written consent (when
appropriate) on a pro rata basis proportionate to all other votes actually cast
or consents actually obtained with respect to a matter submitted to a
shareholder or for which consents are solicited. There can be no assurance that
Holders generally or any Holder 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. The Depositary will endeavor to ensure that
on any date on which it votes or causes to be voted Deposited Securities
pursuant to Section 4.10 of the Deposit Agreement, it will have on deposit under
the Agreement the number of Deposited Securities with respect to which it has
received voting instructions from Holders. In the event that the record date set
by the Depositary precedes the German record date, upon the withdrawal of the
Deposited Securities evidenced by an ADR, the Depositary will require the Holder
of such ADR to certify that such Holder has not voted and will not vote such
ADR. If despite such certification requirement, on any such date, the number of
Deposited Securities on deposit under the Agreement is less than the number of
Deposited Securities with respect to which the Depositary has received voting
instructions, the Depositary shall vote or cause to be voted such Deposited
Securities in accordance with such instructions adjusting the number of
Deposited Securities voted on a pro-rated basis.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
--------------------------------------
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of 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. 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 the form of Receipt contained
in this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities 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 (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) 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.
(19) Exoneration. Neither the Depositary nor the Company shall be
-----------
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company 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, Germany or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or by reason of any
provision, present or future of the Articles of Association (Satzung) of the
Company 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 Articles of
Association (Satzung) of the Company or provisions of or governing Deposited
Securities. (iii) for any action or inaction 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 this
Deposit Agreement, made available to Holders of ADS or (v) for any consequential
or punitive damages for any breach of the terms of this Deposit Agreement. 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 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.
(20) Standard of Care. The Company and its agents assume no obligation
----------------
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. 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 or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. 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.
(21) 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. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier 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. The Depositary may at any time be removed by the Company
by written notice of such removal, which removal shall be effective on the
earlier 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. In case at any
time the Depositary acting hereunder shall resign or be removed, the Company
shall use its 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 hereunder and on the written request of the Company,
shall (1) 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
information relating to Receipts and Holders thereof as the successor may
reasonably request. 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.
(22) Amendment/Supplement. 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 prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto and
the Holders hereby 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 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(s), 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 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.
(23) 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 30
days prior to the date fixed in such notice for such termination. 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 in 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
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs 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 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 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 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, the Deposited
Securities and the 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 or governmental charges or assessments). 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.
(24) Compliance with U.S. Securities Laws. 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 Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
---------------------------------------------
further terms and provisions of this Article (25), 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. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
-------- -------
may (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 of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 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 (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as 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, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (z) 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 reasonably 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 reasonably deems appropriate. 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).
(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.
All endorsements or assignments of Receipts
must be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
SIGNATURE GUARANTEED
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
--------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) Issuance of ADSs Up to $5.00 per 100 Person for whom
upon deposit of Shares ADSs (or fraction deposits are made or
(excluding issuances as thereof) issued. person receiving ADSs.
a result of distributions
described in paragraph
(4) below).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(2) Delivery of Up to $5.00 per 100 Person surrendering
Deposited Securities, ADSs (or fraction ADSs or making
property and cash against thereof) surrendered. withdrawal.
surrender of ADSs.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(3) Distribution of Up to $2.00 per 100 Person to whom
cash dividends or other ADSs (or fraction distribution is made.
cash distributions (i.e., thereof) held, unless
------
sale of rights and other prohibited by the
entitlements). exchange upon which
the ADSs are listed.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(4) Distribution of Up to $5.00 per 100 Person to whom
ADSs pursuant to (i) stock ADSs (or Fraction distribution is made.
dividends or other free thereof) issued,
stock distributions, or unless prohibited by
------
(ii) exercise of rights. the exchange upon
which the ADSs are
listed.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(5) Transfer of ADRs. $1.50 per Certificate Person presenting
presented. certificate for
transfer.
--------------------------------------------------------------------------------
II. Charges
-------
Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for 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 on the share
register 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 and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing Shares or Holders and Beneficial
Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(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; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
(a)(ii) Amendment No. 1 to Deposit Agreement, dated February 25, 2002
INTERSHOP Communications Stock Corporation
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
------------------------------
Amendment No. 1
to
Deposit Agreement
Dated as of February 25, 2002
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO.1 TO DEPOSIT AGREEMENT, is made as of February 25, 2002
(the "Amendment"), by and among INTERSHOP Communications AG a
(Aktiengesellschaft), a Stock Corporation organized and existing under the laws
of Germany and its successors (the "Company"), CITIBANK, N.A., a national
banking association organized under the laws of the United States of America and
acting solely as depositary (the "Depositary"), and all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued under the Deposit Agreement.
WITNESSETH THAT
WHEREAS, the parties hereto entered into that certain Deposit Agreement,
dated as of September 29, 2000 (the "Deposit Agreement"), to establish a
facility to provide for the deposit of the Company's Bearer Ordinary Shares no
par value (the "Shares") and the creation of American Depositary Receipts
("ADRs"), evidencing American Depositary Shares ("ADSs"), representing the
Shares so deposited and for the execution and delivery of such ADRs evidencing
such ADSs;
WHEREAS, the Company has elected to change the ratio of Shares to ADSs
(as set forth in Section 1.2 of the Deposit Agreement) from (i) one (1) Share to
two (2) ADSs to (ii) five (5) Shares to one (1) ADS, and desires to amend the
Deposit Agreement to effect such change; and,
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the Form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
-------------
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
-----------
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
-------------------------------
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
-----------------
defined), refer to the Deposit Agreement, dated as of September 29, 2000, and as
amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Deposit
---------------
Agreement to two (2) ADSs representing one (1) Share shall, as of the Effective
Date (as defined herein), refer to one (1) ADS representing five (5) Shares.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. Change of Ratio. All references in the ADRs issued and
---------------
outstanding as of the Effective Date made to two (2) ADSs representing one (1)
Share shall as of the Effective Date (as defined herein) refer to one (1) ADS
representing five (5) Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01. Representations and Warranties. The Company
-------------------------------
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence in Germany of this Amendment or the Deposit
Agreement as amended hereby, and any other document furnished hereunder
or thereunder, as of the date hereof, neither of such agreements need
to be filed or recorded with any court or other authority in Germany,
nor does any stamp or similar tax need to be paid in Germany on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
---------------
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. New Receipts. From and after the Effective Date, the
------------
Depositary shall arrange to have new ADRs printed or amended that reflect the
change to the form of Receipt effected by this Amendment. All Receipts issued
hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
change to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
------------------------------
directed to send notices informing the Holders of: (i) the terms of this
Amendment; (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
---------------
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the
-------------
terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
INTERSHOP COMMUNICATIONS AG
By: /s/ Stephan Schambach
------------------------------------
Name: Stephan Schambach
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Title: CEO
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CITIBANK, N.A., as Depositary
By: /s/ Brian Teitelbaum
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Name: Brian Teitelbaum
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Title: Vice President
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(f) Rule 466 Certification
CERTIFICATION UNDER RULE 466
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a Registration Statement on Form F-6
(Registration No. 333-11642), which the Commission declared effective
with terms of deposit identical to the terms of this Post-Effective
Amendment No. 2 to this Form F-6 Registration Statement except for the
number of foreign securities a Depositary Share represents.
(2) That its ability to designate the date and time of effectiveness
under Rule 466 has not been suspended.
Citibank, N.A., as Depositary
By: /s/ Frettra M. Miller
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Name: Frettra M. Miller
Title: Vice President and Senior
Counsel