Unassociated Document
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Rule
424(b)(3) 333-120891
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CERTAIN
RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (8) HEREOF, INCLUDING, WITHOUT
LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER
DISTRIBUTIONS.
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No.
of ADSs:
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___________________
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Number
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Each
ADS represents
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One-Tenth
of One Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
ALLIANZ
SE
(a
European Company (or Societas
Europaea)
organized under the laws of the Federal Republic of Germany)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"),
hereby certifies that ____________ is the registered owner (a "Holder")
of
_____ American Depositary Shares ("ADSs"),
each
(subject to Paragraphs (11) and (14)) representing one-tenth of one ordinary
share including, subject to Paragraph (5) below, rights to receive Shares
(together "Shares"
and,
together with any additional securities or cash from time to time held by the
Depositary or the Custodian referred to below in respect or in lieu thereof,
the
"Deposited
Securities"),
of
ALLIANZ SE, a European Company (or Societas
Europaea)
organized under the laws of the Federal Republic of Germany (the "Company"),
deposited with a custodian appointed in accordance with the Deposit Agreement
(hereinafter defined) (subject to Section 7 of the Deposit Agreement , the
"Custodian").
This
ADR is issued pursuant to the Deposit Agreement dated as of November 3, 2000
(as
amended from time to time, the "Deposit
Agreement")
among
the Company, the Depositary and all Holders and Beneficial Owners from time
to
time of American Depositary Receipts issued thereunder ("ADRs"),
each
of whom by accepting an ADR agrees to become a party thereto and to be bound
by
all of the terms and conditions thereof and hereof. Copies of the Deposit
Agreement are on file at the Depositary's Office referred to below and at the
office of the Custodian. This ADR (which includes the provisions set forth
on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York. The terms and conditions of the Deposit Agreement
are hereby incorporated by reference.
(1) Withdrawal
of Deposited Securities.
Subject
to Paragraphs (4), (7) and (9), upon surrender at the Depositary’s Office
referred to below of (i) a certificated ADR in form satisfactory to the
Depositary or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, in either case accompanied by such instruments of transfer
as
the Depositary may require, the Holder hereof is entitled to delivery, as
promptly as practicable, (i) to an account designated by such Holder with
Clearstream Banking AG ("CSB")
or an
institution that maintains accounts with the CSB, of the Shares and the other
Deposited Securities that are eligible for deposit with CSB and (ii) at the
office of the Custodian, of any Deposited Securities that are not eligible
for
deposit with CSB, in each case at the time underlying this ADR. At the request,
risk and expense of the Holder hereof, the Depositary may deliver Deposited
Securities (other than Shares) at the Depositary's Office referred to
below.
(2) Register.
The
Depositary shall keep, at the office of the Depositary in The City of New York
at which at any particular time its depositary receipt business is administered,
which at the date of the Deposit Agreement is 4 New York Plaza, , New York,
New
York 10004 (the
"Depositary's
Office"),
(a) a
register (the "Register")
for
the registration, registration of transfer, combination and split-up of ADRs
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for inspection
by Holders and the Company for the purpose of communicating with Holders in
the
interest of the business of the Company or a matter relating to the Deposit
Agreement and (b) facilities for the delivery and receipt of ADRs. The term
Register includes the Direct Registration System. The
Register shall be established and maintained by the Depositary for registration
of such ADRs in accordance with any applicable law, regulation or, to the extent
applicable, requirement of the New York Stock Exchange, Inc. ("NYSE") or any
applicable rule or regulation of any other securities exchange in the United
States or market therein upon which the ADSs may be listed or traded
The
Depositary may close the Register at any time or from time to time when
reasonably deemed expedient by it after consultation with the Company if
practicable in the case of a closure outside of the ordinary course of business,
or when reasonably requested by the Company.
(3) Title
to ADRs; Validity.
Title
to this ADR, when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of
a
negotiable instrument under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the Register as the absolute owner hereof
for all purposes. This ADR shall not be valid for any purpose unless executed
by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary; provided, however, that, if a co-registrar for
ADRs
has been appointed, such signature may be facsimile if such ADR is countersigned
by the manual or facsimile signature of a duly authorized signatory of such
co-registrar and dated by such signatory. Notwithstanding anything herein to
the
contrary, insofar as Holders are concerned, the Company will, for all purposes,
treat the Depositary, in its capacity as such, as the legal owner of all
Deposited Securities, except as required by applicable law. Each Holder and
each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms of this Deposit Agreement, shall be deemed for
all
purposes to (a) be a party to and bound by the terms of this Deposit Agreement
and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated
in
this Deposit Agreement, to adopt any and all procedures necessary to comply
with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of this Deposit
Agreement (the taking of such actions to be the conclusive determinant of the
necessity and appropriateness thereof).
(4) Certain
Limitations.
As a
condition precedent to the issue or registration of any ADR (including upon
a
transfer, split-up or combination), any distribution in respect thereof or
the
withdrawal of any Deposited Securities, the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge and (ii) any transfer or
registration fees charged by third parties for the transfer of any Deposited
Securities, (b) the production of (i) proof satisfactory to it of the identity
and genuineness of any signature and (ii) such other information as it may
deem
necessary or proper consistent with the Deposit Agreement; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. From time to time, the Company, the Depositary or the
Custodian may also require such information as it may deem necessary or proper
consistent with the Deposit Agreement. The Depositary shall notify the Company
of any procedures established pursuant to clauses (b) or (c) above. The issuance
of ADRs, the acceptance of deposits of Shares, the registration of transfers
of
ADRs or the withdrawal of Deposited Securities may be suspended, generally
or in
particular instances, when the Register or CSB is closed or when any such action
is reasonably deemed expedient by the Depositary or the Company. Registrations
of transfers of ADRs and withdrawals of Deposited Securities shall also be
suspended when requested by the Company, including for the purpose of
facilitating orderly voting of the Deposited Securities. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the U.S. Securities Act of 1933, as amended (the "Securities
Act")
and no
amendment shall impair such requirements.
(5) Pre-release.
Unless
requested in writing by the Company to cease doing so at least two business
days
in advance of the proposed deposit, the Depositary may issue ADRs pursuant
to
Pre-release transactions only if (i) such Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of the Holders (not including any
earnings thereon) until such Shares are deposited (but such collateral shall
not
constitute "Deposited
Securities"),
(ii)
each recipient of Pre-released ADRs represents and agrees in writing with the
Depositary that such recipient or its customer (a) beneficially owns such
Shares, (b) transfers all beneficial right, title and interest therein to the
Depositary for the benefit of the Holders, (c) will hold such Shares in trust
for the account of the Depositary, (d) will deliver such Shares to the Custodian
as soon as practicable and promptly but in no event more than five business
days
after demand therefor, and (e) will not take any action with respect to such
Shares that is inconsistent with the Depositary’s transfer of the beneficial
ownership thereof and (iii) all Pre-released ADRs evidence not more than 20%
of
all ADSs (excluding those evidenced by Pre-released ADRs), 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 retain for its own account
any
compensation for the issuance of ADRs in Pre-release transactions, including,
without limitation earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. The Depositary may also set dollar limits with respect
to
Pre-releases to be entered into with any particular person to whom a Pre-release
was made on a case by case basis as it deems appropriate.
(6) Representations
and Warranties.
Every
person depositing Shares under the Deposit Agreement is deemed to represent
and
warrant that such Shares are validly issued and outstanding, fully paid,
nonassessable and were not acquired in violation of any pre-emptive rights,
that
the person making such deposit is duly authorized to do so and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act and may be offered or sold in the United States in
transactions that are exempt from registration under the Securities Act or
(B)
have been registered under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and the issuance and cancellation
of this ADR. . If any such representations or warranties are false in any way,
the Company and the Depositary shall be authorized, at the cost and expense
of
the person depositing Shares and in their sole and absolute discretion, to
take
any and all actions necessary to correct the consequences thereof, whether
or
not the person who deposited the Shares is at the time of such action the Holder
or a Beneficial Owner of the ADSs represented by such Shares. Neither the
Depositary nor the Company shall have any obligation to perform any due
diligence with respect of the veracity of any representation or deemed
representation made hereunder.
(7) Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any ADSs evidenced by
this
ADR, any Deposited Securities underlying this ADR or any distribution on any
of
the foregoing, such tax or other governmental charge shall be paid by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of this ADR or any withdrawal of the underlying Deposited Securities until
such
payment is made. The Depositary may also deduct from any distribu-tions on
or in
respect of Deposited Securities, or may sell by public or private sale for
the
account of the Holder hereof all or any part of such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply such deduction or the proceeds of any such sale in payment of
such
tax or other governmental charge. The Holder hereof shall remain liable for
any
deficiency. Upon any such sale, the Depositary shall, if appropriate, reduce
the
number of ADSs evidenced hereby to reflect any such sale and shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such tax or other governmental charge to the Holder hereof. Holders
and Beneficial Owners may be required to show proof of taxpayer status or
residence, or provide other information upon request by the Company, the
Depositary or the Custodian in order to determine any applicable tax or other
governmental charge payable hereunder or in connection
herewith.
(8) Disclosure
of Interests.
Each
Beneficial Owner agrees to comply with all applicable provisions of German
and
other applicable laws and the Company's Articles of Association and the rules
and requirements of any securities exchange on which the Deposited Securities
or
the ADSs are traded, to the extent applicable to such Beneficial Owner,
regarding the notification of such person's interest in Shares, which provisions
at the date of the Deposit Agreement include Sections 21 and 22 of the
Securities Trading Act (Wertpapierhandelsgesetz).
At the
date of the Deposit Agreement, the statutory notification obligations of the
Securities Trading Act apply to anyone whose holding, either directly or by
way
of imputation pursuant to the provisions of Section 22 of the Securities Trading
Act, of voting rights in the Company reaches or exceeds 5%, 10%, 25%, 50% or
75%
or, after having reached or exceeded any such threshold, falls below that
threshold. Each Beneficial Owner acknowledges that failure to provide on a
timely basis any required notification of an interest in Shares may result
in
withholding of certain rights, including voting and dividend rights, in respect
of the Shares in which such Beneficial Owner has an interest. All Holders and
Beneficial Owners agree to comply with all such disclosure requirements and
ownership limitations and to cooperate with the Depositary in the Depositary's
compliance with any Company instructions in respect thereof, and the Depositary
shall use its best efforts to comply, to the extent practicable, with such
Company instructions.
(9) Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and other
Distributions (as such terms are defined in Para-graph (11)), and each
person surrendering ADRs for withdrawal of Deposited Securities, up to U.S.
$5.00 for each 100 ADSs (or portion thereof) evidenced by the ADRs delivered
or
surrendered. The Company will pay other charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) pursuant to agreements
from time to time between the Company and the Depositary, except (i) stock
transfer or other taxes and other governmental charges (which are payable by
Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable
by
such persons or Holders), (iii) any transfer or registration fees charged by
third parties for transfer of any Deposited Securities in connection with the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares or Holders with-drawing Deposited Securities) and (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency). These charges
may be changed in the manner indicated in Paragraph (16).
(10) Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the Depositary’s Office and the office of the Custodian. The
Depositary will mail copies of such communications (or English translations
or
summaries thereof) to Holders when furnished by the Company. The Company is
subject to the periodic reporting requirements of the Securities Exchange Act
of
1934 and accordingly files certain reports with the United States Securities
and
Exchange Commission (the "Commission").
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located as of the date of the Deposit
Agreement at 100 F Street, N.E., Washington, D.C. 20549.
Dated:
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JPMORGAN
CHASE BANK, N.A., Depositary
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By
____________________________
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Authorized
Signatory
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The
Depositary's Office is located at 4 New York Plaza, New York, New York
10004.
[FORM
OF
REVERSE OF RECEIPT]
(11) Distributions
on Deposited Securities.
Upon
receipt by the Depositary or the Custodian of any distribution on Deposited
Securities, and subject to Section 6 of the Deposit Agreement and to the
Paragraphs (4), (7) and (9) hereof, the Depositary shall as promptly as
practicable distribute by mail to each Holder entitled thereto on the record
date set by the Depositary therefor, in proportion to the number of Deposited
Securities (on which the following distributions are received by the Custodian)
underlying such Holder's ADRs:
(a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this Paragraph (11) ("Cash"),
on an
averaged or other practicable basis, subject to appropriate adjustments for
(i)
taxes or other governmental charges withheld, (ii) such distribution being
unlawful or impracticable with respect to certain Holders, and (iii) deduction
of the Depositary's expenses in (1) converting any foreign currency into U.S.
dollars, (2) making any sale by public or private means in any commercially
reasonable manner, (3) transferring foreign currency or U.S. dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that such transfer may be made on a reasonable basis, and (4)
obtaining any approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a reasonable cost and within
a reasonable time. Only whole U.S. dollars and cents will be distributed (any
fractional cents being withheld without liability for interest and added to
future Cash distributions).
(b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share
Distribution")
and
(ii) U.S. dollars available to it resulting from the net proceeds of sales
of
Shares received in a Share Distribution, which Shares would give rise to
fractional ADSs if additional ADRs were issued therefor, as in the case of
Cash.
(c) Rights.
(i) To
the extent the Company so instructs and timely furnishes to the Depositary
evidence (the Company having no obligation to so furnish such evidence)
satisfactory to the Depositary that the Depositary may lawfully distribute
the
same, warrants or other instruments representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
or
(ii) to the extent the Company does not furnish such evidence and/or so
instructs the Depositary and sales of Rights are practicable as determined
by
the Depositary after consultation with the Company (which sales shall be
effected as promptly as practicable and, to the extent practicable, on the
principal German stock exchange on which the Rights are traded), any U.S.
dollars available to the Depositary constituting the net proceeds of sales
of
Rights, as in the case of Cash, or (iii) failing either (i) or (ii), nothing
(and any Rights may lapse).
(d) Other
Distributions.
(i)
Securities available to the Depositary resulting from any distribution on
Deposited Securities other than Cash, Share Distributions and Rights
("Other
Distributions"),
by
any means that the Depositary may deem, after consultation with the Company,
lawful, equitable and practicable, or (ii) to the extent the Depositary deems,
after consultation with the Company, a distribution of such securities not
to be
lawful, equitable or practicable, any U.S. dollars available to the Depositary
constituting the net proceeds of the sale of Other Distributions, as in the
case
of Cash.
To
the
extent that the Depositary determines, after consultation with the Company,
that
any distribution is not lawful or practicable with respect to any Holder, the
Depositary may make such distribution as it deems lawful and practicable,
including the distribution of foreign currency or securities (or appropriate
documents evidencing the right to receive foreign currency or securities),
or
retain the same as Deposited Securities with respect to such Holder's ADRs
(without liability for interest thereon or the investment
thereof).
Notwithstanding
anything herein to the contrary, the Company shall have no obliga-tion to either
(i) register any ADSs, Shares, Rights or other securities described in this
Paragraph (11) under the Securities Act or (ii) take other actions to permit
the
distribution of such ADSs, Shares, Rights or other securities in accordance
with
applicable U.S. securities laws.
(12) Record
Dates.
The
Depositary shall, after consultation with the Company to the extent practicable,
fix a record date (which shall be as near as practicable to any corresponding
record date set by the Company with respect to the Shares) for the determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited Securities, to give instructions for the exercise of any
voting rights, to receive any notice or to act in respect of other matters,
and
only Holders of record on the close of business on such date shall be so
entitled.
(13) Voting
of Deposited Securities.
As
promptly as practicable after receipt from the Company of (i) notice of any
meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities
and (ii)
the statement of the Custodian which will act as a proxy bank in accordance
with
Sections 128 and 135 of the German Stock Corporation Act (Aktiengesetz) (the
"Proxy Bank"), setting forth its recommendations with regard to voting of the
Shares pursuant to Section 128 (2) of the German Stock Corporation Act as to
any
matter concerning which the notice from the Company indicates that a vote is
to
be taken by holders of Shares, together with an English translation thereof
(the
"Recommendation"),
the
Depositary shall, subject to applicable law and the Company's Articles of
Association, mail to Holders a notice (a) containing such information as is
contained in such notice and any solicitation materials, (b) stating that each
Holder on the record date set by the Depositary therefor will be entitled to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the whole number of Deposited Securities underlying such Holder's
ADRs, (c) containing the Recommendation, and (d) specifying how and when such
instructions may be given,
including an express indication that, if no specific voting instruction is
received prior to the record date set by the Depositary therefor, then the
Holders shall in each case be deemed to have instructed the Depositary to give
a
proxy to the Proxy Bank to vote the Shares in accordance with the Recommendation
pursuant to Section 128 (2) of the German Stock Corporation Act. Each Holder
who
desires to exercise or to give instructions for the exercise of voting rights
shall execute and return to the Depositary on or before the date established
by
the Depositary for such purpose, a document provided by the Depositary that
instructs the Depositary as to how the number of Shares or other Deposited
Securities represented by such Holder's ADRs are to be voted.
Upon
receipt of instructions of a Holder on such record date in the manner and on
or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law,
the
Company's Articles of Association and the provisions of or governing Deposited
Securities, to vote or cause to be voted the Deposited Securities underlying
such Holder's ADRs in accordance with such instructions. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Deposited Securities, other than in accordance with instructions received
from the Holders (or deemed to have been so received as set forth in the next
paragraph), as of such record date. Insofar as the Custodian elects to act
as
Proxy Bank it shall not be acting as an agent, or otherwise on behalf of, the
Depositary.
Subject
to the following paragraphs of this Section 13, if no specific voting
instructions are received by the Depositary from any Holder (to whom a notice
was sent by the Depositary) with respect to the Deposited Securities, such
Holder shall be deemed, and the Depositary shall deem such Holder, to have
instructed the Depositary to give a proxy to the Proxy Bank to vote such
Deposited Securities in accordance with Section 135 of the German Stock
Corporation Act.
Notwithstanding
anything to the contrary contained herein, in the event that the Proxy Bank
shall fail or decline to supply the Recommendation to the Depositary at least
twenty-one (21) calendar days prior to any meeting of holders of Shares or
other
Deposited Securities with respect to which the Depositary has received notice
from the Company, the Depositary shall mail the above-referenced notice (which
shall not contain the Recommendation or the indication concerning the proxy
to
be given to the Proxy Bank) to the Holders as hereinabove provided, and,
thereafter, in any case in which no specific voting instructions are received
by
the Depositary from a Holder on or before the record date with respect to the
Deposited Securities, no votes shall be cast at such meeting with respect to
such Deposited Securities.
Notwithstanding
anything to the contrary contained herein, the Depositary shall not be obligated
to give any such deemed instruction unless and until the Depositary has been
provided with an opinion of counsel to the Company, which opinion shall
initially be provided on the signing of the Deposit Agreement, in form and
substance satisfactory to the Depositary, to the effect that (i) such deemed
instruction does not subject the Depositary to any reporting obligations in
the
Federal Republic of Germany, (ii) such deemed instruction will not result in
a
violation of German law, rule, regulation or permit, (iii) the voting
arrangement and proxy as contemplated herein will be given effect under German
law, (iv) the Depositary will not be deemed to be authorized to exercise, or
in
fact exercising, any discretion when voting in accordance with the terms of
this
paragraph (13) under German law and (v) the Depositary will not be subject
to
any liability under German law for losses arising from the exercise of the
voting arrangements set forth in this paragraph (13). If after the date such
opinion is delivered to the Depositary the Company is advised by counsel that
there has occurred a change in German law such that the foregoing opinion could
no longer be rendered favorably in whole or in part, the Company shall promptly
notify the Depositary of such change and the Holders shall thereafter not be
deemed to have given any such instruction. For purposes of (v) above, counsel
to
the Company may assume in such opinion that the Depositary has complied with
the
instructions received from Holders (or deemed to have so received) as set forth
in this paragraph (13) and that such liability or losses did not arise due
to
the negligence or bad faith of the Depositary or its agents hereunder.
The
Depositary will endeavor to ensure that on any date on which it votes or causes
to be voted Shares or other Deposited Securities pursuant to this Paragraph
(13), it will have on deposit under the Deposit Agreement the number of Shares
or other Deposited Securities with respect to which it has received voting
instruc-tions from Holders. In the event that, on any such date, the number
of
Shares or other Deposited Securities, as the case may be, on deposit under
the
Deposit Agreement is lower than the number of Shares or other Deposited
Securities with respect to which the Depositary has received voting
instructions, the Depositary shall vote such Shares or other Deposited
Securities in accordance with such instructions adjusting the number of
securities voted on a pro-rated
basis.
(14) Changes
Affecting Deposited Securities.
Subject
to Paragraphs (4), (7) and (9) hereof, upon any change in nominal or par value,
split-up or consolidation or other reclassification of Deposited Securities,
any
Share Distribution or Other Distribution not distributed to Holders in
accordance with Paragraph (11), or any recapitalization, reorganization, merger,
liquidation or similar corporate event or sale of all or substantially all
the
assets of the Company, any cash or securities received by the Depositary in
respect of any Deposited Securities shall constitute Deposited Securities
hereunder, and each ADS evidenced by this ADR shall automatically represent
its
pro rata
interest
in the Deposited Securities as then constituted. In any such case, the
Depositary may, and shall if the Company so requests, distribute any part of
the
cash or securities so received or execute and deliver additional ADRs or call
for the surrender of outstanding ADRs to be exchanged for new ADRs describing
the new Deposited Securities.
(15) Exoneration.
The
Depositary, the Company, their respective officers, directors, affiliates and
agents and each of them shall: (a) incur no liability to any Holder or
Beneficial Owner (i) if law, regulation, the provisions of or governing any
Deposited Security, act of God, war or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act that
the Deposit Agreement or this ADR provides shall be done or performed by it,
or
(ii) by reason of any exercise or failure to exercise any discretion given
it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform
its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) be under no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this ADR; or (d) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person in each case believed by it in good
faith to be competent to give such advice or information. The Depositary, the
Company and their respective agents may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
in good faith to be genuine and to have been signed or presented by the proper
party or parties. The Depositary and its agents shall not be responsible for
any
failure to carry out any instructions to vote any of the Deposited Securities,
for the manner in which any such vote is cast or for the effect of any such
vote. The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in ADRs. In the Deposit Agreement, the
Company has agreed to indemnify the Depositary under certain circumstances
and
the Depositary has agreed to indemnify the Company under certain circumstances.
No disclaimer of liability under the Securities Act is intended by any provision
hereof or of the Deposit Agreement.
(16) Amendment.
Subject
to the last sentence of Paragraph (4), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary without consent of the Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than those listed
in clauses (i) through (iv) of Paragraph (9)), or that shall otherwise prejudice
any substantial existing right of Holders, shall become effective 30 days after
notice of such amendment shall have been given to the Holders. Every Holder,
at
the time any amendment so becomes effective, shall be deemed, by continuing
to
hold an ADR, to consent and agree to such amendment and to be bound by the
ADRs
and the Deposit Agreement as amended thereby. By holding an ADR, ADS or an
interest therein, each Holder and Beneficial Owner hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act or (b) the ADSs or Shares to be traded solely
in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR
to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed rules. 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.
(17) Termination.
The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Deposit Agreement, after giving notice to the
Holders as set forth in the preceding sentence of this Paragraph (17) at any
time 45 days or more after the Depositary shall have delivered to the Company
its written resignation, provided that no successor depositary shall have been
appointed and accepted its appoint-ment as provided in Section 10 of the Deposit
Agreement before the end of such 45 days. After the date so fixed for
termination, the Depositary and its agents shall perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn together with any such distributions on Deposited Securities. As
soon
as practicable after the expiration of one year from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold the
net
proceeds of such sales, together with any other cash then held by it under
the
Deposit Agreement, without liability for interest, for the pro
rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and its indemnification obligations to the Company. After the date so fixed
for
termination, the Company shall be discharged from all obligations under the
Deposit Agreement except for its indemnification and payment obligations to
the
Depositary.