EXHIBIT 4.1



 











Exhibit 4.1


This document is a non-binding convenience translation of the German-language
original. In case of any discrepancy between the English and German versions,
the German-language original shall prevail.




Spin-Off and Acquisition Agreement




between




Bayer Aktiengesellschaft, Leverkusen,

as transferor company




and




LANXESS Aktiengesellschaft, Leverkusen,

as transferee company




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Contents




	 	 	 	 	 
	I. Preamble
	 	 	5	 
	II. Spin-Off, Spin-Off Date, Spin-Off Balance Sheet and Final Balance Sheet
	 	 	6	 
	§ 1 Spin-Off
	 	 	6	 
	§ 2 Spin-Off Date
	 	 	7	 
	§ 3 Spin-Off Balance Sheet and Final Balance Sheet
	 	 	7	 
	III. Spin-Off Assets and Liabilities
	 	 	8	 
	§ 4 Spin-Off Shareholdings
	 	 	9	 
	§ 5 Transfer of Agreements Allocable to the LANXESS Corporate Center
	 	 	9	 
	§
6 Transfer of Office and Business Equipment Allocable to the LANXESS Corporate
Center
	 	 	10	 
	§ 7 Transfer of Claims and Liabilities Allocable to the LANXESS Corporate Center
	 	 	10	 
	§ 8 Pension Liabilities and Pension Provisions
	 	 	11	 
	§ 9 Other Spin-Off Assets and Liabilities
	 	 	13	 
	IV. Methods of Transfer
	 	 	13	 
	§ 10 Consummation
	 	 	13	 
	§ 11 Catch-All Provisions
	 	 	13	 
	§ 12 Duty to Cooperate
	 	 	14	 
	§ 13 Protection of Creditors and Internal Compensation
	 	 	15	 
	§ 14 Exclusion of Claims
	 	 	16	 
	V. Consideration and Capital Stock Measures
	 	 	16	 
	§ 15 Grant of No-Par Shares, Trustee and Capital Stock Measures
	 	 	16	 
	§ 16 Grant of Special Rights
	 	 	17	 
	§ 17 Grant of Special Advantages
	 	 	18	 
	VI. Effects of the Spin-Off for Employees and their Representative Bodies
	 	 	19	 
	§ 18 Transfer of Employment Relationships
	 	 	19	 
	§ 19 Employee Representative Bodies
	 	 	20	 







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	§ 20 Supervisory Board
	 	 	23	 
	VII. Miscellaneous
	 	 	25	 
	§ 21 Taxes
	 	 	25	 
	§ 22 Articles of Association and Master Agreement
	 	 	26	 
	§ 23 Costs and Taxes
	 	 	26	 
	§ 24 Final Provisions
	 	 	26	 







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List of Appendices




	 	 	 	 	 
	APPENDIX
	 	DESCRIPTION

	 	3.1	 	 	Spin-Off Balance Sheet

	 	5.2	 	 	Utilization agreements between BAYER AG and BAYER AG
Group companies relating to office and business equipment

	 	5.4	 	 	List of employees of the LANXESS Corporate Center
whose automobile lease agreements will be transferred

	 	6	 	 	Office and business equipment allocable
to the LANXESS Corporate Center

	 	9	 	 	Other Spin-Off Assets and Liabilities

	 	16.1	 	 	Principles for adjusting employee participation programs

	 	16.2	 	 	Mandatory convertible bond terms and conditions

	 	18.1	 	 	Employees allocable to the LANXESS Corporate Center

	 	22.1	 	 	Articles of Association of LANXESS AG

	 	22.2	 	 	Master Agreement between BAYER AG and LANXESS AG









	 	 	The appendices listed in this index are contained in notarial deed no.
1914/2004 of September 22, 2004 by Dr. Dieter Janke, German notary. The
appendices referred to in this agreement are the appendices contained in this
notarial deed except where otherwise stated.



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I.

Preamble





	0.1	 	Bayer Aktiengesellschaft (hereinafter “BAYER AG”), having its registered
office in Leverkusen, is registered in the Commercial Register of the local
court of Cologne under HRB 48248. At the date of execution of this agreement,
the capital stock of BAYER AG amounts to 1,869,675,315.20 euros and is divided
into 730,341,920 no-par shares. The shares have been fully paid-in.
	 
	0.2	 	LANXESS Aktiengesellschaft (hereinafter “LANXESS AG”), having its
registered office in Leverkusen, is registered in the Commercial Register of
the local court of Cologne under HRB 53652. At the date of execution of this
agreement, the capital stock of LANXESS AG amounts to 50,000 euros and is
divided into 50,000 no-par shares. The sole stockholder of LANXESS AG is BAYER
AG. The shares have been fully paid-in.
	 
	0.3	 	BAYER AG is sole stockholder of LANXESS Deutschland GmbH, registered in the
Commercial Register of the local court of Cologne under HRB 52600. Pursuant to
agreements already concluded, major portions of the former domestic and foreign
chemicals activities as well as portions of the former domestic and foreign
polymer activities of the Bayer Group have been or will be transferred to
LANXESS Deutschland GmbH.
	 
	 	 	Under a spin-off and acquisition agreement notarized on September 10,
2004, which has not yet been registered in the Commercial Register at the
domicile of Bayer Chemicals Aktiengesellschaft, the chemicals activities of
Bayer Chemicals Aktiengesellschaft shall be transferred to LANXESS Deutschland
GmbH pursuant to § 123 paragraph 2 number 1 of the German Transformation Act
(Umwandlungsgesetz) (hereinafter the “Chemicals Spin-Off”). Under a spin-off
and acquisition agreement notarized on September 10,
2004, which has not yet been registered in the Commercial Register at the
domicile of Bayer MaterialScience Aktiengesellschaft, portions of the
polymer activities of Bayer MaterialScience Aktiengesellschaft shall be
transferred to LANXESS Deutschland GmbH pursuant to § 123 paragraph 2
number 1 of the German Transformation Act (Umwandlungsgesetz)
(hereinafter the “MaterialScience Spin-Off”). In consideration, BAYER AG,
as sole stockholder of Bayer Chemicals Aktiengesellschaft and Bayer
MaterialScience Aktiengesellschaft, shall receive one share in LANXESS
Deutschland GmbH for each of these spin-offs.
	 
	0.4	 	A so-called Corporate Center has been established within BAYER AG for
purposes of supporting the Board of Management of BAYER AG in its management of
the group. The Corporate Center of BAYER AG has a total of approximately 550
employees. The Corporate




5









 






	 	 	Center is organized into a number of departments including Group
Accounting and Controlling, Corporate Auditing, Corporate Development,
Regional Coordination, Human Resources and Finance.
	 
	0.5	 	Since June 1, 2004, the main management and leadership functions for the
future LANXESS Group, in particular for the chemicals and polymer activities
combined into LANXESS Deutschland GmbH, have been carried out by an
organizationally separate department established and developed within the
Corporate Center of BAYER AG (hereinafter the “LANXESS Corporate Center”). The
LANXESS Corporate Center consists of the managers of the divisions Board
Office, Corporate Development, Industrial & Environmental Affairs, Treasury,
Tax, Corporate Controlling, Accounting, Communications, Law & Intellectual
Property, Internal Auditing and Human Resources. In discharging their duties,
these managers are supported by the employees of the Group Functions who are
being transferred to LANXESS Deutschland GmbH in connection with the Chemicals
Spin-Off and MaterialScience Spin-Off. In total, the LANXESS Corporate Center
shall comprise approximately 75 employees. The LANXESS Corporate Center
provides services to LANXESS Deutschland GmbH on a payment basis.
	 
	 	 	The LANXESS Corporate Center is managed by the four board of management
members of LANXESS AG, who at the same time have employment contracts with
BAYER AG. They implement decisions made by the Board of Management of BAYER
AG, to the extent applicable to the future LANXESS operations, and undertake
strategic management of the business of LANXESS Deutschland GmbH and its
activities.



Now, therefore, BAYER AG and LANXESS AG hereby agree as follows:








II.

Spin-Off, Spin-Off Date,

Spin-Off Balance Sheet and Final Balance Sheet








§ 1

Spin-Off





	1.1	 	BAYER AG, as transferor company, shall by way of spin-off (Abspaltung zur
Aufnahme) pursuant to § 123 paragraph 2 number 1 of the German Transformation
Act (Umwandlungsgesetz) transfer the portion of its assets and liabilities,
together with all rights and obligations, that is specified in Part III (§§ 4
to 9) of this agreement (hereinafter, collectively, the “Spin-Off Assets and
Liabilities”), as a whole to LANXESS AG, as transferee entity, in consideration
for the granting of shares of LANXESS AG to the




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	 	 	stockholders of BAYER AG pursuant to § 15 of this agreement (spin-off
maintaining proportionality of ownership).
	 
	1.2	 	Assets and liabilities and other rights and obligations of BAYER AG which
are not to be allocated to the Spin-Off Assets and Liabilities according to
this agreement or which are expressly excluded from the transfer, shall not be
transferred to LANXESS AG.








§ 2

Spin-Off Date





	2.1	 	As between BAYER AG and LANXESS AG, the transfer of the Spin-Off Assets and
Liabilities described in § 1 and specified in Part III (§§ 4-9) shall be
effective as of July 1, 2004, 0000 hours (hereinafter the “Spin-Off Date”).
From this point in time forward, as between BAYER AG and LANXESS AG, the
business which relates to the Spin-Off Assets and Liabilities shall be deemed
to be operated for the account of LANXESS AG.
	 
	2.2	 	Notwithstanding § 2.1, if the spin-off is not registered in the Commercial
Register of BAYER AG by January 31, 2005, the Spin-Off Date shall be deemed to
be January 1, 2005, 0000 hours. In such case, a balance sheet of BAYER AG,
prepared and audited in compliance with the rules governing the annual balance
sheet and its audit, as of December 31, 2004, 2400 hours, shall be used as a
basis for the Final Balance Sheet pursuant to § 3.3.
In the event of further delay of the registration beyond January 31 of
the following year, the Spin-Off Date shall be postponed by successive
one-year-periods.








§ 3

Spin-Off Balance Sheet and Final Balance Sheet





	3.1	 	The assets and liabilities which are to be allocated to the Spin-Off Assets
and Liabilities shall be determined on the basis of the spin-off balance sheet
prepared as of July 1, 2004, 0000 hours and attached to this agreement as
Appendix 3.1 (“Spin-Off Balance Sheet”), which is derived from the balance
sheet of BAYER AG prepared as of June 30, 2004, 2400 hours. Unless this
agreement expressly stipulates otherwise, BAYER AG shall also transfer to
LANXESS AG all assets and liabilities and other rights and obligations which
are not required to be, not able to be or in fact are not reported on the
balance sheet and which, taking into account their origin, purpose or use,
are to be allocated to the Spin-Off Assets and Liabilities.
	 
	3.2	 	BAYER AG shall also transfer to LANXESS AG those assets and liabilities as
well as other rights and obligations which were acquired or arose, or which
will be acquired or arise, in the




7









 






	 	 	period between the Spin-Off Date and the Consummation Date (§ 10.1),
including substitutes therefor, e.g. damage claims and sales proceeds,
which, taking into account their origin, purpose or use, are to be
allocated to the Spin-Off Assets and Liabilities. Those assets and
liabilities and other rights and obligations of the Spin-Off Assets and
Liabilities which, in the period between the Spin-Off Date and the
Consummation Date, were or will be sold or otherwise disposed of or at
this point of time no longer exist, shall not be transferred to LANXESS
AG. The assets and liabilities concerned shall for accounting purposes be
recorded separately from the assets and liabilities remaining with BAYER
AG.
	 
	3.3	 	The final balance sheet of the transferor according to § 125 sentence 1 and
§ 17 paragraph 2 of the German Transformation Act (Umwandlungsgesetz) shall be
the balance sheet of BAYER AG as of June 30, 2004, 2400 hours, prepared and
audited in compliance with the rules governing the annual balance sheet and its
audit, by PwC Deutsche Revision Aktiengesellschaft, Essen (the “Final Balance
Sheet”).
	 
	3.4	 	LANXESS AG shall report the Spin-Off Assets and Liabilities in its
commercial accounts at book values and in its tax accounts at going-concern
values.
	 
	3.5	 	BAYER AG shall report the Spin-Off Assets and Liabilities in its Final
Balance Sheet at book values and in its tax transfer balance sheet at
going-concern values.








III.

Spin-Off Assets and Liabilities



The Spin-Off Assets and Liabilities shall comprise:





	•	 	the entire shareholdings held by BAYER AG in LANXESS Deutschland GmbH and in
LANXESS AG, as specified in § 4 (hereinafter, collectively, the “Spin-Off
Shareholdings”);
	 
	•	 	all assets, liabilities and agreements including all rights and obligations
allocable to the LANXESS Corporate Center, in particular, the agreements,
assets and liabilities and obligations described in the following §§ 5 through
8 of this agreement (hereinafter the “Spin-Off Corporate Center Assets and
Liabilities”); and
	 
	•	 	the claims described in more detail in § 9 of this agreement
(hereinafter the “Other Spin-Off Assets and Liabilities”).



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§ 4

Spin-Off Shareholdings



BAYER AG shall transfer to LANXESS AG:



	4.1	 	its entire shareholding in LANXESS Deutschland GmbH consisting of one share
having a nominal value of 26,000 euros, a share to be issued as a result of the
Chemicals Spin-Off having a nominal value of 14,974,000 euros, and a share to
be issued as a result of the MaterialScience Spin-Off having a nominal value of
5,000,000 euros; and
	 
	4.2	 	all 50,000 no-par shares of LANXESS AG held by BAYER AG.



In each case, the transfer shall also comprise all rights and obligations
connected with the shareholdings, in particular all profit-participation
rights, in so far as no distribution of dividends was resolved prior to the
Spin-Off Date. If the Spin-Off Date is delayed according to § 2.2, in each case
the transfer shall also comprise all profit-participation rights, in so far as
no distribution of dividends was resolved prior to the new Spin-Off Date. If, in
order to transfer the Spin-Off Shareholdings, acts in addition to consummation
(§ 10) are required or are appropriate, the parties shall undertake such acts.
As between themselves, the parties shall adopt the same positions as if the
Spin-Off Shareholdings had been transferred on the Spin-Off Date. BAYER AG
shall, in its position as shareholder, not make any withdrawals or
distributions from LANXESS Deutschland GmbH and, if in any shareholders’
meetings of LANXESS Deutschland GmbH taking place before consummation (§ 10) a
resolution is adopted on the distribution of profit, Bayer AG undertakes to
vote to allocate such profit of LANXESS Deutschland GmbH to the retained
earnings.








§ 5

Transfer of Agreements Allocable to the LANXESS Corporate Center



BAYER AG shall transfer to LANXESS AG all agreements allocable to the LANXESS
Corporate Center, in particular:





	5.1	 	the existing employment contracts between BAYER AG and its employees
working in the LANXESS Corporate Center who have already given their consent to
a transfer or who will give their consent by the Consummation Date, and all
other employment contracts concluded with other employees prior to the
Consummation Date whose area of work is the LANXESS
Corporate Center, to the extent that these employees consent to the
transfer;
	 
	5.2	 	the utilization agreements listed in Appendix 5.2 existing between BAYER AG
and Bayer Group companies relating to office and business equipment used by
employees of the




9









 






	 	 	LANXESS Corporate Center, to the extent they use them since the Spin-Off
Date. The respective contractual partners of BAYER AG have already
consented to the transfer of these rights of use;
	 
	5.3	 	the service agreement dated June 30, 2004 between BAYER AG and LANXESS
Deutschland GmbH concerning the provision of services by the LANXESS Corporate
Center of BAYER AG; and
	 
	5.4	 	all automobile lease agreements relating to automobiles used by the
employees of the LANXESS Corporate Center listed in Appendix 5.4.








§ 6

Transfer of Office and Business Equipment

Allocable to the LANXESS Corporate Center



BAYER AG shall transfer to LANXESS AG the office and business equipment of
BAYER AG allocable to the LANXESS Corporate Center and listed in Appendix 6.








§ 7

Transfer of Claims and Liabilities

Allocable to the LANXESS Corporate Center





	7.1	 	BAYER AG shall transfer to LANXESS AG all claims allocable to the LANXESS
Corporate Center, consisting of all claims of BAYER AG arising out of the
agreements transferred pursuant to § 5 as well as all claims arising out of the
employer housing loans (Arbeitgeber-Wohnungsbaudarlehen) granted to employees
allocable to the LANXESS Corporate Center.
	 
	7.2	 	Except for the pension liabilities set out in § 8, BAYER AG shall transfer
to LANXESS AG all liabilities and obligations allocable to the LANXESS
Corporate Center, consisting in particular of:





	 	7.2.1	 	all liabilities arising out of the agreements transferred pursuant
to §§ 5.2 – 5.4;
	 
	 	7.2.2	 	all liabilities arising out of or in connection with (i) employment
relationships existing with employees allocable to the LANXESS Corporate
Center whose employment contracts are transferred pursuant to § 5.1 or
will be transferred on the Consummation Date by operation of § 613a of
the German Civil Code (Bürgerliches Gesetzbuch), and (ii) employment
relationships ending in the period between the Spin-Off Date and
Consummation Date (§ 10.1) but which would have been




10









 






	 	 	 	transferred pursuant to § 5.1 or would have been transferred on
the Consummation Date by operation of § 613a of the German Civil
Code (Bürgerliches Gesetzbuch) if they had not ended;
	 
	 	7.2.3	 	all obligations arising out of existing BAYER AG employee stock
programs (Stock Option Program (SOP), Stock Incentive Program (SIP),
Stock Participation Program (SPP)), to the extent that these either (i)
exist vis-à-vis employees allocable to the LANXESS Corporate Center whose
employment contracts are transferred pursuant to § 5.1 or will be
transferred by operation of § 613a of the German Civil Code (Bürgerliches
Gesetzbuch), or (ii) exist vis-à-vis employees whose employment contracts
ended or will end in the period between the Spin-Off Date and
Consummation Date (§ 10.1) but which would have been transferred pursuant
to § 5.1 or would have been transferred on the Consummation Date by
operation of § 613(a) of the German Civil Code (Bürgerliches Gesetzbuch)
if the employment contracts had not ended; and
	 
	 	7.2.4	 	all other liabilities allocable to the LANXESS Corporate Center
which are reported on the balance sheet, in particular liabilities
arising out of withholding taxes on salaries and wages and liabilities
relating to social insurance.








§ 8

Pension Liabilities and Pension Provisions





	8.1	 	Pension liabilities with respect to active employees of the LANXESS
Corporate Center and those whose employment has ended or will end on or after
the Spin-Off Date.





	 	8.1.1	 	On the Consummation Date (§ 10.1), all rights and obligations
arising out of existing BAYER AG pension commitments (pensions and
similar obligations, in particular those arising out of transitional
payments in cases of early retirement) with respect to employees
allocable to the LANXESS Corporate Center who have an existing employment
relationship on the Consummation Date, shall be transferred to LANXESS AG
according to § 324 of the German Transformation Act (Umwandlungsgesetz) and § 613a paragraph 1 of the German Civil
Code (Bürgerliches Gesetzbuch) or by way of transfer of their
employment contracts pursuant to § 5.1.
	 
	 	8.1.2	 	BAYER AG shall also transfer to LANXESS AG all rights and
obligations arising out of existing BAYER AG pension commitments (current
pensions, vested rights and similar obligations, in particular those
arising out of transitional payments in




11









 






	 	 	 	cases of early retirement) with respect to employees allocable to
the LANXESS Corporate Center (or their survivors) whose employment
has ended or will end in the period between the Spin-Off Date and
Consummation Date.
	 
	 	8.1.3	 	Provisions for obligations arising out of the pension commitments
described in §§ 8.1.1 and 8.1.2 shall therefore be established by LANXESS
AG. The relevant amounts are included in the assets and liabilities
transferred from BAYER AG to LANXESS AG.
	 
	 	8.1.4	 	Furthermore, according to § 133 paragraphs 1 and 3 of the German
Transformation Act (Umwandlungsgesetz), BAYER AG shall be jointly and
severally liable for fulfilling the pension obligations described in §§
8.1.1 and 8.1.2, to the extent that they become due and claims against
BAYER AG arising therefrom are brought before the courts within five
years of the announcement of registration of the spin-off in the
Commercial Register of BAYER AG.
	 
	 	8.1.5	 	LANXESS AG shall indemnify BAYER AG against all claims made against
BAYER AG that arise out of the pension commitments set out in §§ 8.1.1
and 8.1.2 and relate to the period beginning on the Spin-Off Date.





	8.2	 	Pension liabilities with respect to employees of the LANXESS Corporate
Center whose employment ended before the Spin-Off Date.





	 	8.2.1	 	Obligations arising from existing BAYER AG pension commitments
(current pensions, vested rights and similar obligations, in particular
those arising out of transitional payments in cases of early retirement)
with respect to employees (and their survivors) whose employment ended
before the Spin-Off Date (even if such employees would have been
allocable to the LANXESS Corporate Center) are not transferred to LANXESS
AG according to § 324 of the German Transformation Act
(Umwandlungsgesetz) and § 613 a paragraph 1 of the German Civil Code
(Bürgerliches Gesetzbuch), and shall also not be transferred to LANXESS
AG under this spin-off and acquisition agreement.
	 
	 	8.2.2	 	Provisions for obligations arising out of the pension commitments
described in § 8.2.1 shall therefore continue to be established by BAYER
AG.



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§ 9

Other Spin-Off Assets and Liabilities



BAYER AG shall transfer to LANXESS AG the claims listed in Appendix 9.








IV.

Methods of Transfer








§ 10

Consummation





	10.1	 	The transfer of the assets and liabilities included in the spin-off and
other rights and obligations of Bayer AG included in the spin-off shall become
legally effective at the time of registration of the spin-off in the Commercial
Register of BAYER AG (hereinafter the “Consummation Date”).
	 
	10.2	 	Possession of the movable property shall pass to LANXESS AG on the
Consummation Date. To the extent that movable property is in the possession of
a third party, BAYER AG shall, effective on the Consummation Date, transfer its
rights to recover possession to LANXESS AG.
	 
	10.3	 	In the period between conclusion of this agreement and the Consummation
Date, BAYER AG shall only dispose of the assets and liabilities and other
rights and obligations to be transferred under this agreement in the ordinary
course of business and with the care of a prudent businessman.








§ 11

Catch-All Provisions





	11.1	 	If certain assets and liabilities or other rights and obligations, in
particular those arising out of agreements, investments, memberships,
procedural and administrative law relationships or administrative acts, which
are to be transferred to LANXESS AG according to this agreement but are not
transferred to LANXESS AG by operation of law upon registration of the
spin-off, then BAYER AG shall transfer those assets and liabilities and other
rights and obligations to LANXESS AG. LANXESS AG shall accept the transfer. As
between themselves, the parties shall adopt the same positions as if the
transfer had also become effective in relation to third parties as of the
Spin-Off Date.
	 
	11.2	 	If certain assets and liabilities or other rights and obligations, in
particular those arising out of agreements, investments, memberships,
procedural and administrative law relationships or




13









 






	 	 	administrative acts, which are not to be transferred under this agreement
are nonetheless transferred as a matter of law, then LANXESS AG shall
transfer these back to BAYER AG. BAYER AG shall accept such transfer. As
between themselves, the parties shall adopt the same positions as if the
transfer had not become effective as of the Spin-Off Date.
	 
	11.3	 	The terms set out in § 11.1 shall apply correspondingly if assets and
liabilities or other rights and obligations are not transferred pursuant to
this agreement because they were mistakenly assigned to the non-transferred
assets and liabilities.
	 
	 	 	The terms set out in § 11.2 shall apply correspondingly if assets and
liabilities or other rights and obligations are transferred pursuant to this
agreement because they were mistakenly assigned to the Spin-Off Assets and
Liabilities.
	 
	11.4	 	In connection with a transfer pursuant to § 11, the parties shall initiate
all necessary and appropriate measures and legal acts, and shall collaborate on
such measures and acts, in order t o transfer the assets and liabilities and
other rights and obligations to LANXESS AG. If the consent of third parties or
an approval under public law is necessary for the transfer of, or accession to,
existing agreements, then BAYER AG and LANXESS AG shall endeavor to obtain such
consent or approval. If a transfer to be made pursuant to § 11.1 cannot be
effected in relation to third parties or can only be effected by incurring
unreasonable expenses or is impractical, then as between themselves BAYER AG
and LANXESS AG shall adopt the same positions as if the transfer had also
become effective in relation to third parties as of the Spin-Off Date. This
shall particularly apply in the event that a necessary consent or approval
cannot be obtained or can only be obtained by incurring unreasonable expenses.
These terms apply correspondingly to transfers back to BAYER AG to be made
pursuant to § 11.
	 
	11.5	 	Claims under this § 11 shall be barred after December 31, 2014.








§ 12

Duty to Cooperate





	12.1	 	BAYER AG and LANXESS AG shall make all declarations, draw up all documents
and perform all other actions which are necessary or appropriate in connection
with the transfer of the Spin-Off Assets and Liabilities.
	 
	12.2	 	On the Consummation Date, LANXESS AG shall be provided with all business
documents allocable or related to the Spin-Off Assets and Liabilities as kept
by BAYER AG, in particular agreements and approval documents, operating
regulations, construction and




14









 






	 	 	building plans, company information manuals and personnel records.
LANXESS AG shall also be provided with all documents necessary to assert
the rights transferred to it. LANXESS AG shall keep all records and other
documents for the statutory retention period and shall ensure that BAYER
AG may inspect these business documents and make copies of same, provided
it has a legitimate interest in doing so.
	 
	12.3	 	After the Consummation Date, all business documents which are allocable or
related to the non-transferred assets and liabilities, in particular agreements
and approval documents, operating regulations, construction and building plans,
company information manuals and personnel records shall remain with BAYER AG.
All documents necessary for asserting the rights remaining with BAYER AG shall
also remain with BAYER AG. BAYER AG shall keep all records and other documents
for the statutory retention period and shall ensure that LANXESS AG may inspect
these business documents and make copies of same, provided it has a legitimate
interest in doing so.
	 
	12.4	 	Business and trade secrets are to be kept confidential. The destruction of
business documents, writings, books and other records by a party may only take
place after express written consent has been obtained from the other party,
even after the statutory retention period has expired.
	 
	12.5	 	Until December 31, 2014, the parties shall mutually assist each other in
official proceedings, particularly in tax audits and tax or other legal
disputes, which relate to the Spin-Off Assets and Liabilities. The parties
shall especially provide each other with all information and documents
necessary or appropriate to satisfy tax or other official or court requirements
or provide evidence for tax or other authorities or courts, and shall mutually
cause their employees to provide reasonable assistance. All rights of
representation vis-à-vis courts and authorities shall remain unaffected hereby.








§ 13

Protection of Creditors and Internal Compensation



To the extent that this agreement does not provide for any other distribution
of encumbrances and liabilities arising out of or in connection with the
Spin-Off Assets and Liabilities, the following provisions shall apply:





	13.1	 	If and to the extent creditors assert claims against BAYER AG pursuant to
§ 133 of the German Transformation Act (Umwandlungsgesetz) or other provisions,
for liabilities, obligations and contingent liabilities which under the terms
of this agreement were transferred to LANXESS AG, then LANXESS AG shall, at
BAYER AG’s first request,




15









 






	 	 	indemnify BAYER AG against the relevant obligation. The same applies in
cases where such creditors assert claims against BAYER AG regarding
collateral security.
	 
	13.2	 	If and to the extent creditors assert claims against LANXESS AG pursuant
to § 133 of the German Transformation Act (Umwandlungsgesetz) or other
provisions, for liabilities, obligations and contingent liabilities which under
the terms of this agreement were not transferred to LANXESS AG, then BAYER AG
shall, at LANXESS AG’s first request, indemnify LANXESS AG from the relevant
obligation. The same applies in cases where such creditors assert claims
against LANXESS AG regarding collateral security.
	 
	13.3	 	If creditors assert claims against LANXESS AG for obligations transferred
under this agreement and insurance coverage exists under BAYER AG group
insurance, then BAYER AG shall file an insurance claim and transfer all
insurance proceeds received therefrom to LANXESS AG.








§ 14

Exclusion of Claims



All claims and rights of LANXESS AG against BAYER AG relating to the condition
and existence of the assets and liabilities transferred by BAYER AG under the
terms of this agreement as well as the Spin-Off Assets and Liabilities as a
whole, regardless of the type and of the legal basis, shall hereby be expressly
excluded. This also especially applies to claims arising from pre-contractual
or contractual breach of duties and to violations of legal obligations.








V.

Consideration and Capital Stock Measures








§ 15

Grant of No-Par Shares, Trustee and Capital Stock Measures





	15.1	 	In consideration of the transfer of the Spin-Off Assets and Liabilities,
the stockholders of BAYER AG shall receive, in proportion to their existing
stockholding and at no cost, one no-par bearer share of LANXESS AG for every
ten no-par bearer shares of BAYER AG. In total, 73,034,192 no-par bearer
shares shall be granted to the stockholders of BAYER AG.
	 
	 	 	The shares to be granted under § 15.1 consist of 72,984,192 new shares to
be created by the capital stock increase set out in § 15.3 as well as the
50,000 shares of LANXESS AG hitherto held by BAYER AG that are to be spun off
pursuant to § 4.2.





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	15.2	 	The shares to be granted by LANXESS AG shall participate in the profit as
from January 1, 2004. In the event that the Spin-Off Date is postponed
according to § 2.2, the shares to be granted shall participate in the profit as
from the new Spin-Off Date.
	 
	15.3	 	For purposes of carrying-out this spin-off, LANXESS AG shall increase its
capital stock by 72,984,192 euros from 50,000 euros to 73,034,192 euros. Each
new no-par share represents one euro of the capital stock increase.
	 
	15.4	 	The total value at which LANXESS AG shall acquire the contribution in kind
from BAYER AG, shall equal the commercial book value of the transferred net
assets. To the extent this value exceeds the capital stock increase amount
stated in § 15.3, the excess amount shall be allocated to capital reserves
pursuant to § 272 paragraph 2 number 1 of the German Commercial Code
(Handelsgesetzbuch).
	 
	15.5	 	BAYER AG shall appoint Deutsche Bank AG, Frankfurt/Main, as trustee for
receipt of the shares of LANXESS AG to be granted and as trustee for the
delivery of such shares to the stockholders of BAYER AG. The trustee shall be
entitled to possession of the shares to be granted before registration of the
spin-off and shall be instructed to make the shares available to stockholders
of BAYER AG after registration of the spin-off in the Commercial Register of
BAYER AG.








§ 16

Grant of Special Rights





	16.1	 	The rights of participants in the Stock Option Program (SOP), Stock
Incentive Program (SIP) and Stock Participation Program (SPP) of BAYER AG shall
be adjusted in accordance with the principles of the DOW JONES STOXX Index
Guide (January 2004, Version 7.3, in particular chapter 6 regarding a
spin-off). These principles are reproduced in Appendix 16.1.
	 
	 	 	LANXESS AG shall adjust the rights of participants who on the Spin-Off
Date are employees allocable to the future LANXESS Group and who on
consummation are no longer employed by the Bayer Group or whose employment
relationship has ended or will end in the period between the Spin-Off Date and
Consummation Date. BAYER AG shall adjust the rights of the rest of the
participants. The implementation of the adjustments may also be carried out by
affiliated companies.
	 
	 	 	LANXESS AG shall indemnify BAYER AG and companies affiliated with BAYER AG
post-consummation from liabilities arising out of employee participation
programs existing for participants who on the Spin-Off Date are employees
allocable to the future LANXESS




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	 	 	Group and who on consummation are no longer employed by the Bayer Group
or whose employment relationship has ended or will end in the period
between the Spin-Off Date and Consummation Date. BAYER AG shall indemnify
LANXESS AG and companies affiliated with LANXESS AG post-consummation
from liabilities arising out of employee participation programs existing
for the rest of the participants.
	 
	16.2	 	Pursuant to a resolution of its stockholder meeting, LANXESS AG issued to
BAYER AG a 2004-2007 mandatory convertible bond in the nominal amount of
200,000,000.00 euros bearing interest at 6% per annum, with conversion rights
as of July 20, 2005 and with mandatory conversion at the end of the term
(September 15, 2007), on the terms and conditions set out in Appendix 16.2. In
the same stockholder meeting, an authorized capital in the amount of 36,517,096
euros was resolved on and the board of management was authorized, with approval
of the supervisory board, to exclude subscription rights (among other things)
to the extent necessary in order to grant new no-par shares to holders of
convertible bonds upon exercise of their conversion rights or in fulfillment of
the mandatory conversion arising out of the convertible bond issued in the
nominal amount of 200,000,000.00 euros as resolved by the stockholder meeting
on September 15, 2004. The authorized capital amount shall be registered in the
Commercial Register of LANXESS AG immediately following registration of the
capital stock increase for purposes of carrying out the spin-off (see § 15.3).
LANXESS AG shall apply to register the authorised capital accordingly and shall
make every effort to ensure that the shares to be granted on conversion are
admitted promptly to official trading as well as to that part of official
trading on the Frankfurt Stock Exchange having further admission requirements
(Prime Standard).
	 
	16.3	 	No additional rights for individual stockholders or holders of special
rights within the meaning of § 126 paragraph 1 number 7 of the German
Transformation Act (Umwandlungsgesetz) shall be granted and no measures within
the meaning of this statutory provision shall be provided for such persons.








§ 17

Grant of Special Advantages



Members of the board of management of LANXESS AG were appointed on September 2,
2004. In view of the short term of office of the board of management members
and the fact that BAYER AG prepared all of the financial information contained
in the joint spin-off report of the boards of management of LANXESS AG and
BAYER AG, and BAYER AG in particular will publish financial information and
disclosures intended for U.S. stockholders, BAYER AG irrevocably agrees to
indemnify each member of the board of management of LANXESS AG from any
possible personal liability for violation of duties imposed upon him as a
result of his appointment to the board


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of management of LANXESS AG arising out of or in connection with the financial
information and disclosures related thereto. The indemnity pertains to
financial information and disclosures to the extent contained in the joint
spin-off report, in the appendix intended for U.S. stockholders or in further
documents which are based on the financial information. There shall be no duty
to indemnify in the event of liability as a result of gross negligence or
intentional breach of duty. The fact that the financial information was not
subject to the usual thorough review shall not be considered gross negligence.



Other than this, no special advantages within the meaning of § 126 paragraph 1
number 8 of the German Transformation Act (Umwandlungsgesetz) shall be
conferred on members of the board of management or supervisory board of the
companies involved in the spin-off or on auditors of the financial statements
or of the spin-off.








VI.

Effects of the Spin-Off for Employees and their Representative Bodies








§ 18

Transfer of Employment Relationships





	18.1	 	On the Consummation Date, all employment relationships of employees of
BAYER AG allocated to the LANXESS Corporate Center of BAYER AG, who consented
to a transfer of their employment contracts to LANXESS AG, shall be transferred
to LANXESS AG by way of spin-off with all rights and duties according to § 5.1.
On the Consummation Date, all employment relationships of the remaining
employees of BAYER AG allocated to the LANXESS Corporate Center of BAYER AG
shall also be transferred to LANXESS AG with all rights and duties pursuant to
the terms of § 324 of the German Transformation Act (Umwandlungsgesetz) and §
613a of the German Civil Code (Bürgerliches Gesetzbuch). The employees
allocated to the LANXESS Corporate Center are listed in Appendix 18.1. BAYER AG
shall, with approval of LANXESS AG, conclude a transitional agreement with
Bayer’s general works council in which the material issues arising in relation
to the transfer of employment relationships from BAYER AG to LANXESS AG shall
be stipulated.
	 
	18.2	 	Pursuant to § 323 paragraph 1 of the German Transformation Act
(Umwandlungsgesetz), the legal position of employees transferred to LANXESS
AG as regards notice of termination shall not be adversely affected for a
period of two years after the spin-off comes into effect.
Pursuant to the General Works Agreement to Safeguard Sites and Employment
III (Gesamtbetriebsvereinbarung für Standort- und Beschäftigungssicherung
III) at BAYER AG (hereinafter “SOS III”), dismissals due to operational
reasons are generally not permitted up to December 30, 2007 at either
BAYER AG or LANXESS AG.




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	18.3	 	The employment relationships to be transferred shall be governed by the
laws existing on the Consummation Date. The job activities, compensation as
well as other employment conditions shall in general not be directly affected
by the spin-off. Length of service earned and recognized at BAYER AG shall be
fully credited in respect of all provisions relating to length of service.
	 
	18.4	 	The legal situation with respect to rights and obligations arising out of
pension commitments of BAYER AG are set out in § 8. Irrespective of this, the
employees to be transferred shall remain full members of the pension fund of
which they are members at the time of the Consummation Date (the Bayer pension
fund (Bayer-Pensionskasse) and the Rhine pension fund (Rheinische
Pensionskasse) respectively, as the case may be).
	 
	18.5	 	The previous collective bargaining commitments of BAYER AG shall also
apply to LANXESS AG. LANXESS AG shall become a member of the regional
employers’ associations for the chemical industry and thereby subject itself to
collective bargaining commitments.
	 
	18.6	 	The existing works agreements and general works agreements as well as the
existing managerial employees’ and general managerial employees’ committee
agreements at BAYER AG shall continue to apply to the operations transferred to
LANXESS AG. The necessary adjustments to the works agreements and general works
agreements as well as to the managerial employees’ and general managerial
employees’ committee agreements, shall be made by LANXESS AG, to the extent
that employees transferred to LANXESS AG are affected, and by BAYER AG, to the
extent that employees remaining at BAYER AG are affected, together with the
respective works council or general works council and the respective managerial
employees’ and general managerial employees’ committee, as the case may be.
	 
	18.7	 	The parties are of the opinion that the spin-off does not constitute a
change of operations according to § 111 of the German Works Council
Constitution Act (Betriebsverfassungsgesetz). Independent of this, BAYER AG’s
management and Bayer’s general works council have concluded the agreements
described in § 18.2 for the reconciliation of interests.
	 
	18.8	 	In the past, BAYER AG instituted various tranches of a so-called Stock
Option Program (SOP), a so-called Stock Incentive Program (SIP) and a so-called
Stock Participation




20









 






	 	 	Program (SPP) for the employees of the Bayer Group. The spin-off will
have the following effect on the rights of the employees with respect to
these tranches:
	 
	 	 	The spin-off of the subgroup LANXESS may, on the one hand, make it more
difficult to achieve the performance criteria of the participation programs,
and on the other had, may adversely affect the incentives, meaning the economic
value which may potentially accrue to the employees of each respective
participation program. In order to avoid such a dilution of rights from an
economic point of view, all current tranches of the employee participation
programs (SOP, SIP, and SPP) shall be adjusted so as to essentially compensate
for the loss of value resulting from the dilution. The adjustments shall be
made upon the spin-off of the subgroup LANXESS taking effect, in accordance
with the adjustment rules contained in the DOW JONES STOXX Index Guide (January
2004, Version 7.3, in particular chapter 6 regarding a spin-off).
	 
	 	 	The adjustment shall be calculated based on the average XETRA closing
prices of Bayer stock on the Frankfurt Stock Exchange in the last ten trading
days before the first listing of the LANXESS stock and the average XETRA
closing prices of the LANXESS stock on the Frankfurt Stock Exchange on the
first ten trading days after the first listing of the LANXESS stock. To the
extent that adjustments to internal operational performance criteria need to be
made due to the spin-off, appropriate measures shall be taken.
	 
	 	 	Employees of the future LANXESS Group who participate in the SIP or SPP
tranches, as the case may be, shall only have a right to an incentive payment
for the incentive point in time immediately following the Consummation Date.
Thereafter, all other rights to an incentive payment shall lapse.








§ 19

Employee Representative Bodies





	19.1	 	Works Councils and General and/or Group Works Council
	 
	 	 	LANXESS AG does not presently have its own business operations and
therefore no works council.
	 
	 	 	The operations and sub-operations of LANXESS Deutschland GmbH are
presently supervised by the works councils elected in March 2002 at the
Leverkusen, Dormagen, Krefeld-Uerdingen, Eberfeld and Brunsbüttel sites
(hereinafter the “Local Works Councils”) together with the general works
council of Bayer, on the basis of SOS III and the collective bargaining
agreement concluded on January 10, 2002 between BAYER AG and



21









 





	 	 	the Industriegewerkschaft Bergbau Chemie Energie (hereinafter the
“January 2002 Collective Bargaining Agreement”).
	 	 	 
	 	 	The SOS III, the transitional agreement and the January 2002 Collective
Bargaining Agreement contain the following provisions in respect of the Local
Works Councils and the general works council of Bayer for the time after the
spin-off takes effect, which in particular are binding on BAYER AG, LANXESS AG,
and LANXESS Deutschland GmbH:





	 	19.1.1	 	Pursuant to § 21a of the German Works Council Constitution Act
(Betriebsverfassungsgesetz), the Local Works Councils shall remain in
office for an interim mandate after the spin-off takes effect and shall
continue to assume responsibility for the operations and sub-operations
which hitherto belonged to its area of responsibility. The interim
mandate shall end on the results being announced of the election of new
works councils for the operations of LANXESS AG and LANXESS Deutschland
GmbH respectively, however, no later than twelve months after the
spin-off takes effect.
	 
	 	19.1.2	 	After the spin-off takes effect, the Local Works Councils shall
continue to be responsible for all matters provided for in the German
Works Council Constitution Act (Betriebsverfassungsgesetz) to the extent
related to the respective site. The responsibility shall not be
restricted to one company, meaning it applies to matters of BAYER AG,
Bayer HealthCare Aktiengesellschaft, Bayer CropScience
Aktiengesellschaft, Bayer MaterialScience Aktiengesellschaft, to matters
of the service companies Bayer Business Services GmbH, Bayer Industry
Services GmbH
& Co. OHG, Bayer Technology Services GmbH, as well as to matters
of LANXESS AG and LANXESS Deutschland GmbH.
	 
	 	19.1.3	 	Even after the spin-off takes effect, the Local Works Councils
shall form a general works council and a general works committee. The
general works council shall be responsible for issues which the
individual Local Works Councils cannot determine because more than one
location is affected.
	 
	 	19.1.4	 	Upon the end of the interim mandate pursuant to § 21a of the
German Works Council Constitution Act (Betriebsverfassungsgesetz), those
members of the Local Works Councils who are employees of LANXESS AG,
LANXESS Deutschland GmbH, or a company affiliated with LANXESS AG or
LANXESS Deutschland GmbH, shall resign from their offices in the Local
Works Councils. If a resigning member had been a delegate from the
respective works council to Bayer’s general works council




22









 






	 	 	 	or Bayer’s general works committee, then that member shall also
resign from the respective general works council or general works
committee.





	19.2	 	Managerial Employees’ and General Managerial Employees’ Committee
	 
	 	 	LANXESS AG presently has no business operations and therefore no
managerial employees’ committee.
	 
	 	 	The managerial employees’ committees of BAYER AG, Bayer Chemicals AG,
Bayer MaterialScience AG, Bayer Business Services GmbH and Bayer Technology
Services GmbH shall assume responsibility for LANXESS GmbH and LANXESS AG as an
interim mandate on the basis of a managerial employees’ committee agreement.
The managerial employees’ committee of Bayer Chemicals AG shall be instructed
by the managerial employees’ committees of the other companies to carry out the
interim mandate. The interim mandate is limited in time until the election of a
new managerial employees’ committee of LANXESS GmbH and LANXESS AG
respectively, however, at most until 2006, when according to statute, works
council and managerial employees’ committee elections must take place. Those
employees of LANXESS AG, LANXESS Deutschland GmbH, or a company affiliated with
LANXESS AG or LANXESS Deutschland GmbH, who are members of the group managerial
employees’ committee shall resign from the group managerial employees’
committee upon the spin-off of the subgroup LANXESS taking effect.








§ 20

Supervisory Board





	20.1	 	LANXESS AG currently has a supervisory board which is not subject to
co-determination, consisting of three members elected by the sole stockholder
BAYER AG. After the spin-off takes effect, LANXESS AG shall form a supervisory
board with equal (50:50) co-determination in accordance with the provisions of
the 1976 German Co-Determination Act (Mitbestimmungsgesetz,) since as a result
of the attribution rule set out in § 5 paragraph 1 sentence 1 of the German
Co-Determination Act (Mitbestimmungsgesetz), it shall employ more than 2,000
employees domestically. In this regard, the board of management shall institute
so-called status proceedings in accordance with §§ 97 et seq. of the German
Stock Corporation Act (Aktiengesetz). It is anticipated that the newly formed
supervisory board shall have sixteen members of which eight are representatives
of the stockholders and eight representatives of the employees. The eight
members of the supervisory board to be elected by the stockholders shall be
elected by BAYER AG as sole stockholder before the spin-off takes effect. The
term of office of the supervisory board members elected by BAYER AG shall be
limited and shall end on the first annual stockholders’ meeting of LANXESS AG




23









 






	 	 	after the spin-off takes effect, in order to give future stockholders of
LANXESS AG the opportunity for a new election. The members of the
supervisory board to be elected by the employees shall initially be
appointed by the court. It has not yet been determined who will become a
member of the new supervisory board of LANXESS AG.
	 
	20.2	 	The spin-off shall have no effect on the existence and composition of the
supervisory board of BAYER AG nor on the terms of office of its members. The
employee representatives on the supervisory board of BAYER AG shall be elected
by the employees of all domestic group companies. After the spin-off takes
effect, LANXESS AG shall no longer be a BAYER AG group company and therefore
the employees of LANXESS AG and its group companies shall no longer be entitled
to vote for or be elected to the supervisory board of BAYER AG but instead
shall be entitled to do so with respect to the supervisory board of LANXESS AG.








VII.

Miscellaneous








§ 21

Taxes





	21.1	 	LANXESS AG intends to continue operating the LANXESS Corporate Center to
be spun-off from BAYER AG and undertakes to continue operating it in terms of
functions and amount of personnel existing on the Consummation Date until at
least December 31, 2005. LANXESS AG shall document the management functions
carried out by the LANXESS Corporate Center for the future LANXESS Group from and after the
Consummation Date.
	 
	21.2	 	Both parties assume that LANXESS AG qualifies as a taxable person
(entrepreneur) for value added tax purposes due to the agreed services that the
LANXESS Corporate Center shall provide to LANXESS Deutschland GmbH for
consideration. LANXESS AG shall continue to provide the services so far
performed by the LANXESS Corporate Center basically until at least December 31,
2005. If LANXESS AG makes amendments to these service agreements, then LANXESS
shall replace these with other services for consideration until at least
December 31, 2005, in order to ensure that LANXESS AG qualifies as a taxable
person (entrepreneur) for value added tax purposes.
	 
	21.3	 	To ensure neutral income tax treatment, LANXESS AG shall not undertake a
merger of LANXESS Deutschland GmbH into LANXESS AG or vice versa as of a merger
effective date (Verschmelzungsstichtag) which is prior to the Spin-Off Date.




24









 









§ 22

Articles of Association and Master Agreement





	22.1	 	BAYER AG agrees to amend the Articles of Association of LANXESS AG before
the spin-off takes effect so that after registration of the authorized capital
as resolved on September 15, 2004 (see § 16.2) and after conducting the status
proceedings (see § 20.1), they will correspond to the version attached as
Appendix 22.1.
	 
	22.2	 	BAYER AG and LANXESS AG shall enter into the so-called master agreement
attached hereto as Appendix 22.2, which shall be an integral part of this
agreement.








§ 23

Costs and Taxes



Unless otherwise stipulated in this agreement or its appendices, BAYER AG shall
bear the costs in connection with the notarization of this agreement and the
performance of this agreement prior to the Consummation Date (including the
costs of the spin-off report, spin-off audit and planned admission to official
trading as well as the respective fees for professional advisors and banks
associated therewith). Each party shall bear its own costs for the respective
stockholders’ meeting and costs associated with applying for registration and
registration in the Commercial Register. The transfer taxes arising in
connection with the notarization of this agreement and its performance shall be
borne by LANXESS AG. All other taxes incurred shall be borne by that party
deemed to be the tax debtor pursuant to tax laws.








§ 24
Final Provisions





	24.1	 	This agreement shall only become effective upon being approved by the
Stockholders’ Meeting of each party and upon the spin-off being registered in
the Commercial Register of LANXESS AG and BAYER AG.
	 
	24.2	 	All disputes arising in connection with the agreement or concerning its
validity shall be finally settled by arbitration pursuant to the arbitration
rules of the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) without
recourse to the ordinary courts of law. The arbitral tribunal may also finally
decide on the validity of this agreement to arbitrate. The arbitral tribunal
shall consist of three members. The place of arbitration shall be Leverkusen.
	 
	24.3	 	The appendices to this agreement are an integral part of this agreement.




25









 






	24.4	 	Amendments and additions to this agreement, including a waiver of this
provision, must be in writing unless compliance with additional formalities is
required.
	 
	24.5	 	Should one or more provisions of this agreement be or become void, invalid
or unenforceable in whole or in part, the validity of this agreement and its
remaining provisions shall not be affected thereby. The void, invalid or
unenforceable provision shall be replaced with a provision which most closely
reflects, in terms of form, content, time, measure and area of applicability,
the parties’ commercial intent and purpose of the void, invalid or
unenforceable provision. The same applies to any omissions in this agreement.




Leverkusen, September 22, 2004



	 	 	 
	Bayer Aktiengesellschaft

	 	LANXESS Aktiengesellschaft







26