EXHIBIT 2.1
SCHERING AG
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AND
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MORGAN GUARANTY TRUST COMPANY OF NEW YORK, As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of XXX , 2000
Table of Contents
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Page
Section 1. Definitions...................................................................... 1
Section 2. Form of ADR; Incorporation by Reference.......................................... 2
Section 3. Deposit of Shares................................................................ 2
Section 4. Issue of ADRs.................................................................... 3
Section 5. Transfer, Combination and Split-up of ADRs; Substitution of ADRs;
Cancellation and Destruction of ADRs; Maintenance of Records..................... 3
Section 6. Distributions; Conversion of Foreign Currency; Withholding....................... 4
Section 7. Custodian........................................................................ 5
Section 8. Depositary's Agents.............................................................. 5
Section 9. Lists of Holders and Other Information........................................... 5
Section 10. Resignation and Removal of the Depositary; Successor Depositary.................. 5
Section 11. Information...................................................................... 6
Section 12. Indemnification.................................................................. 6
Section 13. Notices.......................................................................... 7
Section 14. Miscellaneous.................................................................... 7
Section 15. Governing Law.................................................................... 8
Exhibit A to Deposit Agreement: Form of ADR.................................................. A-1
Withdrawal of Deposited Securities............................................... A-2
Register......................................................................... A-2
Title to ADRs; Validity; Treatment as Legal Owner................................ A-2
Certain Limitations.............................................................. A-2
Pre-release...................................................................... A-3
Representations and Warranties................................................... A-3
Taxes............................................................................ A-3
Disclosure of Interest........................................................... A-3
Charges of Depositary............................................................ A-4
Available Information............................................................ A-4
Distributions on Deposited Securities............................................ A-5
Record Dates..................................................................... A-6
Voting of Deposited Securities................................................... A-6
Changes Affecting Deposited Securities........................................... A-7
Exoneration...................................................................... A-7
Amendment........................................................................ A-7
Termination...................................................................... A-8
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DEPOSIT AGREEMENT dated as of XXX , 2000 (the "Agreement" or the
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"Deposit Agreement") among Schering AG (the "Company"), Morgan Guaranty Trust
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Company of New York, as depositary hereunder (the "Depositary"), and all holders
and beneficial owners from time to time of American Depositary Receipts issued
hereunder. The parties hereto agree as follows:
Section 1. Definitions.
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The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Agreement.
a) "ADRs" means American depositary receipts evidencing ADSs. ADRs may be
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either in physical certificated form or Direct Registration ADRs. References to
"ADRs" shall include Direct Registration ADRs, unless the context otherwise
requires.
b) "ADSs" means American depositary shares representing beneficial
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interests in the Deposited Securities. Subject to Paragraphs (11) and (14) of
the Form of ADR, each ADS represents the right to receive one Share.
c) "Beneficial Owner" means a person with a beneficial interest in an
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ADS.
d) "CSB" means Clearstream Banking AG, the German central securities
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depositary, and any successor entity.
e) "Custodian" means the agent or agents of the Depositary and any
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additional or successor Custodian which may be appointed pursuant to Section 7.
The initial Custodian hereunder is XXX AG.
f) "Deliver", "execute", "issue", "register", "surrender ", "transfer" or
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"cancel", when used with respect to Direct Registration ADRs, shall refer to an
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entry or entries or an electronic transfer or transfers in the Direct
Registration System.
g) "Delivery Order" has the meaning set forth in Section 3(a).
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h) "Depositary's Office" means at any particular time the office of the
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Depositary in The City of New York at which its depositary receipt business is
then administered. At the date of this Agreement the Depositary's Office is
located at 60 Wall Street, New York, New York 10260.
i) "Deposited Securities" at any particular time means all Shares then
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deposited or deemed to be deposited under this Agreement and any and all
additional securities and cash received by the Depositary or the Custodian in
respect or in lieu thereof and at such time held hereunder.
j) "Direct Registration ADRs" means an ADR, the ownership of which is
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recorded on the Direct Registration System.
k) "Direct Registration System" means the direct registration system
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maintained by the Depositary, pursuant to which the Depositary may record the
ownership of uncertificated ADRs, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto.
l) "Form of ADR" has the meaning set forth in Section 2(a).
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m) "Holder" means the person or persons in whose name an ADR is
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registered on the Register.
n) "Pre-release" has the meaning set forth in Section 3(a).
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o) "Pre-released ADR" has the meaning set forth in Section 3(a).
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p) "Register" has the meaning set forth in Paragraph (2) of the Form of
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ADR.
q) "Securities Act" means the U.S. Securities Act of 1933, as amended.
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r) "Securities Exchange Act" means the U.S. Securities Exchange Act of
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1934, as amended.
s) "Shares" means the ordinary shares, in bearer form, each without
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nominal value, or such other nominal value as the Company may determine in
accordance with German law, of the Company, having the same rights, including
with respect to distributions, as all other outstanding ordinary shares of the
Company, and, subject to Paragraph (5) of the Form of ADR, shall include rights
to receive Shares.
Section 2. Form of ADR; Incorporation by Reference.
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a) Form of ADR. ADRs in certificated form shall be substantially in the
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form of Exhibit A hereto (the "Form of ADR"). ADRs in certificated form shall
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be engraved, printed or otherwise reproduced at the discretion of the Depositary
in accordance with its customary practices in its American depositary receipt
business, or at the request of the Company typewritten and photocopied on plain
or safety paper, and shall be substantially in the form set forth in the Form of
ADR, with such changes as may be required by the Depositary to comply with its
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in certificated
form bearing the manual or facsimile signature of anyone who was at the time of
execution a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such authority prior to the
delivery of such ADRs.
b) Direct Registration ADRs. Notwithstanding anything in the Agreement or
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in the Form of ADR to the contrary, to the extent permitted under the Rules of
The Depository Trust Company ("DTC"), ADSs issued after the date of this
Agreement shall be evidenced by Direct Registration ADRs, unless certificated
ADRs are specifically requested by the Holder. No additional fee shall be
charged for the issuance of certificated ADRs pursuant to any such request.
c) Incorporation by Reference. The terms and conditions set forth in the
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Form of ADR are hereby incorporated by reference herein and made a part hereof
as if set forth herein, and shall be binding upon the parties hereto.
Section 3. Deposit of Shares.
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a) Deposit with Custodian. Subject to the terms and conditions of this
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Agreement, the Depositary shall issue ADSs evidenced by ADRs for delivery at the
Depositary's Office against delivery or transfer to the Custodian of: (i) Shares
by credit to the account of the Custodian with CSB; or (ii) subject to the
provisions of Paragraph (5) of the Form of ADR, rights to receive Shares. ADSs
evidenced by ADRs issued upon the deposit of rights to receive Shares in
accordance with clause (ii) of this Section 3(a) are hereinafter referred to as
"Pre-released ADRs", and each such issuance as a "Pre-release", until such time
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as Shares are deposited with the Custodian in accordance with clause (i) of this
Section 3(a). In connection with any such deposit, the Depositary or the
Custodian may require a written order from the person making such deposit
specifying the person or persons in whose name the ADSs evidenced by ADRs are to
be issued (a "Delivery Order"). If use of the CSB book-entry system in
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connection with the ADSs is discontinued at any time for any reason, the Company
shall make such other book-entry arrangements (if any) that it determines, after
consultation with the Depositary, are reasonable.
b) Representations. Every person depositing Shares hereunder is deemed to
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represent and warrant
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that such Shares are validly issued and outstanding, fully paid, nonassessable,
free and clear of any lien, encumbrance, security interest, charge, pledge or
restriction on transfer, 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 issuance of ADRs. 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.
c) Refusal of Deposit. The Depositary shall not knowingly accept for
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deposit hereunder any Shares required to be registered under the Securities Act
and not so registered. The Depositary will use its best efforts to comply with
written instructions of the Company which are reasonable in nature not to accept
for deposit hereunder any Shares identified in such instructions at such times
and under such reasonable circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with applicable
U.S. securities laws.
d) Holding of Deposited Securities. Deposited Securities shall be held by
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the Custodian for and to the order of the Depositary. Shares deposited hereunder
and other Deposited Securities eligible for deposit with CSB shall be held by
the Custodian at its account at CSB. Deposited Securities may be delivered by
the Depositary or the Custodian to any person only under the circumstances
contemplated in this Agreement.
e) Issuance of Additional Shares; Compliance with Law. The Company agrees
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with the Depositary that (a) neither the Company nor any affiliates of the
Company within the meaning of the Securities Act will at any time deposit any
Shares, either upon original issuance or upon a sale of Shares previously issued
and reacquired by the Company or by any company under its control, unless a
registration statement is in effect as to such Shares under the Securities Act,
or unless the offering and sale of such Shares or the transaction is exempt from
registration under the provision of the Securities Act, and (b) the Company
shall give timely notice to the Depositary of any issuance of (i) additional
Shares, (ii) rights to subscribe for Shares, (iii) securities convertible into
or exchangeable for Shares, or (iv) rights to subscribe for any such securities,
and that the Company will cooperate with the Depositary to establish the
requisite procedures to avoid the violation of the Securities Act in connection
with such events. Notwithstanding the preceding sentence, neither the Company
nor the Depositary shall be obligated to file any registration statement in
respect of any proposed transaction or to endeavor to have such registration
statement declared effective.
Section 4. Issue of ADRs.
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After any deposit of Shares or rights to receive Shares in accordance with
Section 3(a), together with any other documents required by the Depositary in
accordance with this Agreement, the Custodian shall as promptly as practicable
notify the Depositary of such deposit and of the information contained in any
Delivery Order. Such notice shall be given in writing, either by letter, airmail
postage prepaid, or, at the request, risk and expense of the person making the
deposit, by telex or facsimile transmission. After receiving such notice from
the Custodian, the Depositary, subject to this Agreement, shall as promptly as
practicable issue and deliver at the Depositary's Office, to or upon the order
of the person named in such notice, a Direct Registration ADR or, if
specifically requested by the depositor or the person to whom ADSs are issuable
hereunder or if a Direct Registration ADR is not permissible within the
facilities of DTC, a certificated ADR, in either case, registered as requested
and evidencing the aggregate number of ADSs to which such person is entitled.
ADRs shall be issued only in denominations of any whole numbers of ADSs. At the
request, risk and expense of the person depositing Shares or rights, the
Depositary may deliver ADRs at a place other than the Depositary's Office. ADRs
may be issued by the Depositary only under the circumstances expressly
contemplated in this Agreement.
Section 5. Transfer, Combination and Split-up of ADRs;
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Substitution of ADRs; Cancellation and
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Destruction of ADRs; Maintenance of Records.
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a) Transfer, Combination and Split-up of ADRs. Subject to the terms and
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conditions of this Agreement, the Depositary shall, upon surrender of an ADR or
ADRs in form satisfactory to the Depositary at the Depositary's Office (i) for
the purpose of transfer, if such ADRs are accompanied by such instruments of
transfer as the Depositary may require and, in the case of certificated ADRs,
are stamped as may be required by law, register the transfer of such ADRs on the
Register, and execute and deliver a new ADR or ADRs evidencing the same number
of ADSs as the ADRs surrendered to or upon the order of the person entitled
thereto; and (ii) for the purpose of effecting a split-up or combination,
execute and deliver a new ADR or ADRs in such denominations as may be requested,
evidencing the same aggregate number of ADSs as the ADR or ADRs surrendered.
b) Substitution of ADRs. The Depositary shall execute and deliver a new
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ADR evidencing the same number of ADSs in exchange and substitution for any
mutilated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen ADR, unless the Depositary has notice that such
ADR has been acquired by a bona fide purchaser, upon the Holder thereof filing
with the Depositary a request for such execution and delivery and a sufficient
indemnity bond (for the benefit of the Depositary and the Company) and
satisfying any other reasonable requirements imposed by the Depositary.
c) Cancellation and Destruction of ADRs. The Depositary shall cancel all
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ADRs surrendered to it. The Depositary is authorized to destroy ADRs so
cancelled in accordance with customary practices of stock transfer agents in The
City of New York.
d) Maintenance of Records. The Depositary shall maintain records of all
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ADRs surrendered and Deposited Securities withdrawn under Paragraph (1) of the
Form of ADR, transfers of ADRs, substitute ADRs delivered, and cancelled or
destroyed ADRs under this Section 5, in keeping with the procedures ordinarily
followed by stock transfer agents located in The City of New York or as required
by applicable law, rule or regulation or requirement of the New York Stock
Exchange Inc., if any, which is applicable to transfer agents.
Section 6. Distributions; Conversion of Foreign Currency;
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Withholding.
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a) Distributions. Upon the receipt of any distribution on Deposited
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Securities, to the extent permitted by applicable law and practicable, subject
to Paragraphs (4), (7) and (9) of the Form of ADR, the Depositary shall
distribute such distribution to each Holder, in proportion to the number of
Deposited Securities underlying such Holder's ADRs, in accordance with Paragraph
(11) of the Form of ADR.
b) Conversion of Foreign Currency. Upon receipt by the Depositary or the
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Custodian of any foreign currency, if at the time of its receipt such foreign
currency can in the reasonable judgment of the Depositary be converted on a
reasonable basis into U.S. dollars and the resulting U.S. dollars transferred to
the United States, the Depositary shall as promptly as practicable (and in any
event within one business day after the day in which such foreign currency is
received by the Depositary) convert or cause to be converted, such foreign
currency into U.S. dollars, and shall distribute such U.S. dollars to the
Holders entitled thereto in accordance with Paragraph (11) of the Form of ADR.
If such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file such
application for approval or license as it may reasonably deem desirable. If
the Depositary reasonably determines that such foreign currency is not
convertible, in whole or in part, on a reasonable basis into U.S. dollars
transferable to the United States, or if any approval or license which is
required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable or is not obtained within a reasonable period or at
a reasonable cost, the Depositary may distribute all or part of the foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency) to, or in its discretion may hold such foreign currency
uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto. All expenses of any such conversion
(and of obtaining any applicable approvals or licenses), filing and application
process shall be deducted from the proceeds of the distribution to which they
relate.
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c) Withholding. In connection with any distribution on the Deposited
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Securities, each of the Company, the Depositary and the Custodian shall remit to
the appropriate governmental authority such amounts (if any) as it may be
required by law to withhold and pay to such authority. The Depositary shall
forward to the Company in a timely fashion such information from its records as
the Company may reasonably request to enable the Company to file necessary
reports with governmental authorities. The Depositary shall use its reasonable
commercial efforts to establish and maintain arrangements with the relevant tax
authorities that assist Holders and Beneficial Owners in claiming any refunds,
credits or other benefits (pursuant to treaty or otherwise) relating to
distributions on the ADSs. The Depositary shall provide copies of any filing
that it makes in conjunction with any such arrangements to the Company. The
Company shall provide such cooperation in establishing and maintaining any such
arrangements as the Depositary may reasonably request.
Section 7. Custodian.
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The Depositary shall procure that there is at all times a Custodian
hereunder. Any Custodian in acting hereunder shall be subject to the direction
of the Depositary and shall be responsible solely to it. The Depositary shall
be responsible for the compliance by each Custodian with the provisions hereof
directly applicable to it. The Depositary may, from time to time after
consultation with the Company if practicable, appoint one or more agents to act
for it as Custodian hereunder in addition to or in lieu of the then current
Custodian. Each Custodian so appointed shall give written notice to the
Depositary and the Company accepting such appointment and agreeing to be bound
by the applicable provisions hereof. Any Custodian may resign from its duties
hereunder upon 30 days' written notice to the Depositary. The Depositary may,
after consultation with the Company if practicable, discharge any Custodian at
any time upon notice to such Custodian. The Depositary shall promptly instruct
any Custodian ceasing to act as Custodian to deliver all Deposited Securities
held by it to a Custodian continuing to act hereunder and the resignation or
discharge of any Custodian shall not be effective until such Custodian shall
have so delivered all Deposited Securities held by it.
Section 8. Depositary's Agents.
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The Depositary may perform its obligations hereunder through any agent
appointed by it including, but not limited to, a co-registrar to register ADRs
and transfers, combinations and split-ups of ADRs and to countersign ADRs and/or
a co-transfer agent for the purpose of effecting transfers, combinations or
split-ups of ADRs at designated offices in addition to the Depositary's Office.
The Depositary shall use its reasonable commercial efforts under the
circumstances to obtain a written notice from each agent appointed hereunder
(other than those agents which, on the date hereof, are acting in an agency
capacity for Morgan Guaranty Trust Company of New York), addressed to the
Company and the Depositary accepting such appointment and agreeing to be bound
by the terms of the applicable provisions hereof. Notwithstanding the
foregoing, the Depositary shall remain responsible for the performance of its
obligations hereunder as if no agent were appointed.
Section 9. Lists of Holders and Other Information.
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The Company shall, to the extent permitted by applicable law, have the
right to inspect the Register and the transfer records of the Depositary and its
agents, take copies thereof and require the Depositary to supply copies of
portions of such records as the Company may reasonably request. The Depositary
shall, to the extent permitted by applicable law, furnish to the Company,
promptly upon the receipt of a written request from the Company, a list of the
names and addresses of, and holdings of ADSs by, all Holders as of a date within
three business days prior to the date of such request. The Depositary shall
provide copies to the Company, promptly upon the receipt of a written request
from the Company, of any information received by the Depositary in accordance
with Paragraph (4) of the Form of ADR unless such disclosure is prohibited by
applicable law, rule or regulation.
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Section 10. Resignation and Removal of the Depositary;
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Successor Depositary.
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The Depositary may resign as Depositary by written notice to the Company,
or be removed as Depositary by the Company by written notice to the Depositary
and such resignation or removal shall take effect only upon the appointment of,
and acceptance of such appointment by, a successor depositary hereunder. If the
Depositary shall resign or be removed, the Company shall use its reasonable
commercial efforts to appoint a bank or trust company having an office in The
City of New York, as successor depositary hereunder. Every successor depositary
shall execute and deliver to its predecessor and to the Company written
acceptance of its appointment hereunder, and thereupon such successor depositary
shall become Depositary hereunder; but such predecessor, upon payment of all
sums due it hereunder and on the written request of the Company, shall execute
and deliver an instrument transferring all rights and powers hereunder, shall
duly assign, transfer and deliver all of its right, title and interest in the
Deposited Securities to such successor, and shall deliver to such successor a
list of the names and addresses of, and holdings of ADSs by, all Holders. Any
bank or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business (including the ADR facility created
pursuant to this Agreement), shall be the successor depositary hereunder without
any further action. The Depositary agrees to promptly inform the Company in
writing of any such event. Upon the appointment or accession of any successor
depositary hereunder, any Custodian then acting hereunder shall forthwith become
the agent hereunder of such successor depositary and such successor depositary
shall, on the written request of such Custodian, execute and deliver to such
Custodian any instruments necessary to give such Custodian authority as the
agent hereunder of such successor depositary.
Section 11. Information.
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a) Public Information. The Company shall transmit to the Custodian and
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the Depositary a copy (in English or with an English translation or summary to
the extent required under the U.S. Securities Exchange Act of 1934) of any
notices, reports and communications it makes generally available (by publication
or otherwise) to holders of Shares. The Depositary shall make such notices,
reports and communications available to Holders in accordance with Paragraph
(10) of the Form of ADR.
b) Articles of Association etc. The Company has delivered to the
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Depositary and the Custodian a copy (in English or with an English translation)
of its Articles of Association issued by the Company and, promptly upon any
amendment thereto, the Company shall deliver to the Depositary and the Custodian
a copy (in English or with an English translation) of such amendment. The
Depositary and its agents may rely upon the Company's delivery thereof for all
purposes of complying with the provisions of the Agreement.
Section 12. Indemnification.
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a) Indemnification by the Company. The Company shall indemnify, defend
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and save harmless each of the Depositary and its agents against any loss,
liability or expense (including reasonable fees and expenses of counsel) that
may arise out of (i) its acceptance and performance of its powers and duties in
respect of this Agreement, except to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary or any of its agents
hereunder, or (ii) any offer or sale of ADRs, ADSs, Shares or other Deposited
Securities or any registration statement under the Securities Act in respect
thereof, except to the extent such loss, liability or expense arises out of
information (or omissions from such information) relating to it furnished in
writing to the Company by the Depositary expressly for use in any such
registration statement.
b) Indemnification by the Depositary. The Depositary shall indemnify,
---------------------------------
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company in
respect of the Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary or any of its agents
appointed hereunder.
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f) Notification and Settlement. Any person seeking indemnification
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hereunder (an "indemnified person") shall notify the person from whom it is
seeking indemnification (the "indemnifying person") of the commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights otherwise than under this
Section 12 and shall only affect its rights hereunder to the extent such failure
is prejudicial) and shall consult in good faith with the indemnifying person as
to the conduct of the defense of such action or claim, which shall be reasonable
in the circumstances. No indemnified person shall compromise or settle any
indemnifiable action or claim without the prior written consent of the
indemnifying person (which consent shall not be unreasonably withheld or
delayed).
e) Survival. The obligations set forth in this Section 12 shall survive
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the termination of this Agreement.
Section 13. Notices.
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Notice to any Holder shall be deemed given when first mailed, first class
postage prepaid, or sent via telex or facsimile transmission to such Holder to
the address or telex or facsimile number, as the case may be, of such Holder in
the Register. Notice to the Depositary or the Company shall be deemed given
when first received by it at the address or facsimile transmission number set
forth in (a) or (b) below, respectively, or at such other address or facsimile
transmission number as either may specify to the other by written notice:
(a) Morgan Guaranty Trust Company
of New York
60 Wall Street (36th Floor)
New York, New York 10260
Attention: ADR Administration
Fax: (212) 648-5576
b) Schering AG
MullerstraBe 178
13353 Berlin
Germany
Attention: Legal Department
Fax: 011-49-30-46814086
Notices to the Depositary must be in English.
Section 14. Miscellaneous.
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This Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, the Beneficial Owners, and their respective successors hereunder,
and shall not give any legal or equitable right, remedy or claim whatsoever to
any other person. The Holders and Beneficial Owners shall be parties to this
Agreement and shall be bound by the provisions hereof. If any such provision
is invalid, illegal or unenforceable in any respect, the remaining provisions
shall in no way be affected thereby. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and each of
which shall constitute one instrument.
Section 15. Governing Law.
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This Agreement and the ADRs shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, SCHERING AG and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners of ADRs (or any interests
therein) shall become parties hereto upon acceptance by them of ADRs (or any
interest therein) issued in accordance with the terms hereof.
SCHERING AG
By___________________________
Name:
Title:
By___________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By___________________________
Name:
Title:
8
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
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.
_________________ No. of ADSs:
Number
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Each ADS represents One Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
SCHERING AG
(Incorporated under the
laws of the Federal Republic of Germany)
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York corporation, as
depositary hereunder (the "Depositary"), hereby certifies that ____________ is
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the registered owner (a "Holder") of _____ American Depositary Shares ("ADSs"),
------ ----
each (subject to Paragraphs (11) and (14)) representing 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 Schering Aktiengesellschaft, a
--------------------
corporation incorporated 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 Agreement referred
to below, the "Custodian"). This ADR is issued pursuant to the Deposit
---------
Agreement dated as of XXX, 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 ADRs evidencing ADSs, 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.
II-9
(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 , 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 60 Wall Street, New York, New York 10260 (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
requirement of the New York Stock Exchange, Inc. ("NYSE") or any applicable rule
or regulation of any other securities exchange or market upon which the ADSs may
be listed or traded. Subject to the foregoing and Paragraph (4), 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; Treatment as Legal Owner. 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, 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)
II-10
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
after consultation with the Company in the case of a closure outside of the
ordinary course of business. 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 as of the time of
such transaction, (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 until such Pre-release transaction is
otherwise closed, (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 30% of all ADSs
(excluding those evidenced by Pre-released ADRs) provided, however, that the
-------- -------
Depositary may, with the prior written consent of the Company, change such limit
for purposes of general application. 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.
(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, free and clear of
any lien, encumbrance, security interest, charge, pledge or restriction on
transfer, 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 issuance 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.
(7) Taxes. The Holders and Beneficial Owners may be required from
-----
time to time to file such proof of taxpayer status or residence, including
executing certifications thereof, or to provide any information that the
Depositary, the Custodian or the Company may request with respect to such
status. 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 distributions 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
II-11
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.
(8) Disclosure of Interests. Each Holder and Beneficial Owner agrees
-----------------------
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 Deposit Agreement include Sections
21 and 22 of the Securities Trading Act (Wertpapierhandelsgesetz). At the date
of the Deposit Agreement, (i) 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 Holder and Beneficial Owner acknowledges that failure to provide
on a timely basis any required notification of an interest in Shares may result
in withholding of certain rights, including voting and dividend rights, in
respect of the Shares in which such Holder or Beneficial Owner 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 Paragraph (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 not pay any
fees, expenses or other charges of the Depositary or any agent of the Depositary
except in accordance with written agreements entered into between the Depositary
and the Company from time to time. The Company will not pay (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 withdrawing 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 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 Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Depositary shall make available for inspection by
Holders at the Depositary's Office copies of the Deposit Agreement, the
provisions of or governing Deposited Securities, the Company's Articles of
Association and any other notices, reports and communications, including proxy
soliciting materials, received from the Company which are both (a) received by
the Depositary or the Custodian or the nominee of either as holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. To the extent lawful and practicable, the
Depositary shall also send to Holders copies of such notices, reports and
communications when furnished by the Company to the Depositary pursuant to the
Deposit Agreement. Any such notices, reports and communications, including any
such proxy soliciting material, furnished to the Depositary by the Company shall
be furnished in English to the extent, if any, required by the rules and
regulations of the Commission or the rules and regulations of the New York Stock
Exchange, Inc. or any other securities exchange or market upon which the ADSs
may be listed or traded. At the reasonable request of the Depositary, prior to
any such distribution, the Company shall deliver an opinion of U.S. counsel
stating that the distribution of such notices, reports and/or communication does
not violate U.S. law, rule or regulation.
II-12
Dated:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Signatory
The Depositary's Office is located at 60 Wall Street, New York, New York 10260.
II-13
[FORM OF REVERSE OF ADR]
(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 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 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 obligation to either (i) register any ADSs, Shares, Rights or other
securities described in this Paragraph (11) under the Securities Act
II-14
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.
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 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 a 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
II-15
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 instructions 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 (i) if any 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 to any Holder or
Beneficial Owner 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, Beneficial Owner, 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.
II-16
(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 or Beneficial Owners, provided that any amendment
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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 or Beneficial Owners, shall become
effective 30 days after notice of such amendment shall have been given to the
Holders. Every Holder and Beneficial Owner, 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 of 1933 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 or Beneficial Owners. 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
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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 90 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 appointment as
provided in Section 10 of the Deposit Agreement before the end of such 90 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
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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 under the Deposit Agreement. 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 under
the Deposit Agreement.
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