EX-4.I.B



 







Exhibit 4(i)(B)




 





DEPOSIT AGREEMENT




 





by and among




QIMONDA AG,




AND




CITIBANK, N.A.,

as Depositary,




AND




THE HOLDERS AND BENEFICIAL OWNERS OF

AMERICAN DEPOSITARY SHARES

ISSUED HEREUNDER FROM TIME TO TIME




 





Dated as of [date], 2006





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	 	 	 
	DEFINITIONS	 	 	5	 
	 

	 	Section 1.1
	 	“ADS Record Date”
	 	 	5	 
	 

	 	Section 1.2
	 	“Affiliate”
	 	 	5	 
	 

	 	Section 1.3
	 	“American Depositary Receipt(s)”, “ADR(s)” and “Receipt(s)”
	 	 	5	 
	 

	 	Section 1.4
	 	“American Depositary Share(s)” and “ADS(s)”
	 	 	6	 
	 

	 	Section 1.5
	 	“Applicant”
	 	 	6	 
	 

	 	Section 1.6
	 	“Beneficial Owner”
	 	 	6	 
	 

	 	Section 1.7
	 	“Business Day”
	 	 	6	 
	 

	 	Section 1.8
	 	“Certificated ADS(s)”
	 	 	6	 
	 

	 	Section 1.9
	 	“Clearstream”
	 	 	6	 
	 

	 	Section 1.10
	 	“Commission”
	 	 	6	 
	 

	 	Section 1.11
	 	“Company”
	 	 	6	 
	 

	 	Section 1.12
	 	“Company’s Articles of Association and By-laws”
	 	 	7	 
	 

	 	Section 1.13
	 	“Custodian”
	 	 	7	 
	 

	 	Section 1.14
	 	“Deliver” and “Delivery”
	 	 	7	 
	 

	 	Section 1.15
	 	“Deposit Agreement”
	 	 	7	 
	 

	 	Section 1.16
	 	“Depositary”
	 	 	7	 
	 

	 	Section 1.17
	 	“Deposited Securities”
	 	 	7	 
	 

	 	Section 1.18
	 	“Dollars” and “$”
	 	 	7	 
	 

	 	Section 1.19
	 	“DTC”
	 	 	7	 
	 

	 	Section 1.20
	 	“DTC Participant”
	 	 	7	 
	 

	 	Section 1.21
	 	“Euro” and “€”
	 	 	7	 
	 

	 	Section 1.22
	 	“Exchange Act”
	 	 	7	 
	 

	 	Section 1.23
	 	“Foreign Currency”
	 	 	7	 
	 

	 	Section 1.24
	 	“Full Entitlement ADR(s)”, “Full Entitlement ADS(s)”
and “Full Entitlement Share(s)”
	 	 	8	 
	 

	 	Section 1.25
	 	“Germany”
	 	 	8	 
	 

	 	Section 1.26
	 	“Holder(s)”
	 	 	8	 
	 

	 	Section 1.27
	 	“Indemnified Person” and “Indemnifying Person”
	 	 	8	 
	 

	 	Section 1.28
	 	“Partial Entitlement ADR(s)”, “Partial Entitlement ADS(s)”
and “Partial Entitlement Share(s)”
	 	 	8	 
	 

	 	Section 1.29
	 	“Pre-Release Transaction”
	 	 	8	 
	 

	 	Section 1.30
	 	“Principal Office”
	 	 	8	 
	 

	 	Section 1.31
	 	“Registrar”
	 	 	8	 
	 

	 	Section 1.32
	 	“Restricted Securities”
	 	 	8	 
	 

	 	Section 1.33
	 	“Restricted ADR(s)”, “Restricted ADS(s)” and “Restricted Shares”
	 	 	9	 
	 

	 	Section 1.34
	 	“Securities Act”
	 	 	9	 
	 

	 	Section 1.35
	 	“Share Registrar”
	 	 	9	 
	 

	 	Section 1.36
	 	“Shares”
	 	 	9	 
	 

	 	Section 1.37
	 	“State(s)”
	 	 	9	 
	 

	 	Section 1.38
	 	“Uncertificated ADS(s)”
	 	 	9	 
	 

	 	Section 1.39
	 	“United States” and “U.S.”
	 	 	9	 






2









 






	 	 	 	 	 	 	 	 	 
	ARTICLE II	 	 	 	 
	APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY,	 	 	 	 
	TRANSFER AND SURRENDER OF RECEIPTS	 	 	9	 
	 

	 	Section 2.1
	 	Appointment of Depositary
	 	 	9	 
	 

	 	Section 2.2
	 	Form and Transferability of ADSs
	 	 	10	 
	 

	 	Section 2.3
	 	Deposit with Custodian
	 	 	11	 
	 

	 	Section 2.4
	 	Registration and Safekeeping of Deposited Securities
	 	 	13	 
	 

	 	Section 2.5
	 	Issuance of ADSs
	 	 	13	 
	 

	 	Section 2.6
	 	Transfer, Combination and Split-up of ADRs
	 	 	13	 
	 

	 	Section 2.7
	 	Surrender of ADSs and Withdrawal of Deposited Securities
	 	 	15	 
	 

	 	Section 2.8
	 	Limitations on Execution and
Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc.	 	 	16	 
	 

	 	Section 2.9
	 	Lost ADRs, etc.
	 	 	17	 
	 

	 	Section 2.10
	 	Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records
	 	 	17	 
	 

	 	Section 2.11
	 	Escheatment
	 	 	17	 
	 

	 	Section 2.12
	 	Partial Entitlement ADSs
	 	 	17	 
	 

	 	Section 2.13
	 	Certificated/Uncertificated ADSs
	 	 	18	 
	 

	 	Section 2.14
	 	Restricted ADSs
	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III	 	 	 	 
	CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs	 	 	21	 
	 

	 	Section 3.1
	 	Proofs, Certificates and Other Information
	 	 	21	 
	 

	 	Section 3.2
	 	Liability for Taxes and Other Charges
	 	 	21	 
	 

	 	Section 3.3
	 	Representations and Warranties on Deposit of Shares
	 	 	22	 
	 

	 	Section 3.4
	 	Compliance with Information Requests and Applicable Law
	 	 	22	 
	 

	 	Section 3.5
	 	Ownership Restrictions
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV	 	 	 	 
	THE DEPOSITED SECURITIES	 	 	24	 
	 

	 	Section 4.1
	 	Cash Distributions
	 	 	24	 
	 

	 	Section 4.2
	 	Distribution in Shares
	 	 	24	 
	 

	 	Section 4.3
	 	Elective Distributions in Cash or Shares
	 	 	25	 
	 

	 	Section 4.4
	 	Distribution of Rights to Purchase Additional ADSs
	 	 	25	 
	 

	 	Section 4.5
	 	Distributions Other Than Cash, Shares or Rights to Purchase Shares
	 	 	27	 
	 

	 	Section 4.6
	 	Distributions with Respect to Deposited Securities in Bearer Form
	 	 	28	 
	 

	 	Section 4.7
	 	Redemption
	 	 	28	 
	 

	 	Section 4.8
	 	Conversion of Foreign Currency
	 	 	29	 
	 

	 	Section 4.9
	 	Fixing of ADS Record Date
	 	 	30	 
	 

	 	Section 4.10
	 	Voting of Deposited Securities
	 	 	30	 
	 

	 	Section 4.11
	 	Changes Affecting Deposited Securities
	 	 	32	 
	 

	 	Section 4.12
	 	Available Information
	 	 	33	 
	 

	 	Section 4.13
	 	Reports
	 	 	33	 
	 

	 	Section 4.14
	 	List of Holders
	 	 	33	 
	 

	 	Section 4.15
	 	Taxation
	 	 	33	 






3









 






	 	 	 	 	 	 	 	 	 
	ARTICLE V	 	 	 	 
	THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY	 	 	34	 
	 

	 	Section 5.1
	 	Maintenance of Office and Transfer Books by the Registrar
	 	 	34	 
	 

	 	Section 5.2
	 	Exoneration
	 	 	35	 
	 

	 	Section 5.3
	 	Standard of Care
	 	 	36	 
	 

	 	Section 5.4
	 	Resignation and Removal of the Depositary; Appointment of
Successor Depositary
	 	 	36	 
	 

	 	Section 5.5
	 	The Custodian
	 	 	37	 
	 

	 	Section 5.6
	 	Notices and Reports
	 	 	38	 
	 

	 	Section 5.7
	 	Issuance of Additional Shares, ADSs, etc.
	 	 	38	 
	 

	 	Section 5.8
	 	Indemnification
	 	 	39	 
	 

	 	Section 5.9
	 	Fees and Charges of Depositary
	 	 	40	 
	 

	 	Section 5.10
	 	Pre-Release Transactions
	 	 	41	 
	 

	 	Section 5.11
	 	Restricted Securities Owners
	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI	 	 	 	 
	AMENDMENT AND TERMINATION	 	 	42	 
	 

	 	Section 6.1
	 	Amendment/Supplement
	 	 	42	 
	 

	 	Section 6.2
	 	Termination
	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII	 	 	 	 
	MISCELLANEOUS	 	 	44	 
	 

	 	Section 7.1
	 	Counterparts
	 	 	44	 
	 

	 	Section 7.2
	 	No Third-Party Beneficiaries
	 	 	44	 
	 

	 	Section 7.3
	 	Severability
	 	 	44	 
	 

	 	Section 7.4
	 	Holders and Beneficial Owners as Parties; Binding Effect
	 	 	45	 
	 

	 	Section 7.5
	 	Notices
	 	 	45	 
	 

	 	Section 7.6
	 	Governing Law and Jurisdiction
	 	 	46	 
	 

	 	Section 7.7
	 	Assignment
	 	 	47	 
	 

	 	Section 7.8
	 	Compliance with U.S. Securities Laws
	 	 	47	 
	 

	 	Section 7.9
	 	Germany Law References
	 	 	47	 
	 

	 	Section 7.10
	 	Titles and References
	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS

	 

	 	 
	 	Form of ADR
	 	 	A-1	 
	 

	 	 
	 	Fee Schedule
	 	 	B-1	 






4









 






DEPOSIT AGREEMENT




     DEPOSIT AGREEMENT, dated as of [date], 2006, by and among (i) QIMONDA AG, a company organized
under the laws of the Federal Republic of Germany, and its successors (the “Company”), (ii)
CITIBANK, N.A., a national banking association organized under the laws of the United States of
America acting in its capacity as depositary, and any successor depositary hereunder (the
“Depositary”), and (iii) all Holders and Beneficial Owners from time to time of American Depositary
Shares issued hereunder (all such capitalized terms as hereinafter defined).



WITNESSETH THAT:




     WHEREAS, the Company desires to establish with the Depositary an ADR facility to provide,
inter alia for the deposit of the Shares (as hereinafter defined) and the creation of American
Depositary Shares representing the Shares so deposited; and



     WHEREAS, the Depositary is willing to act as the Depositary for such ADR facility upon the
terms set forth in the Deposit Agreement (as hereinafter defined); and



     WHEREAS, any American Depositary Receipts issued pursuant to the terms of the Deposit
Agreement are to be substantially in the form of Exhibit A attached hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in the Deposit
Agreement; and



     WHEREAS, the American Depositary Shares to be issued pursuant to the terms of the Deposit
Agreement are to be listed for trading on The New York Stock Exchange, Inc. (“NYSE”); and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS




     All capitalized terms used, but not otherwise defined, herein shall have the meanings set
forth below, unless otherwise clearly indicated:



     Section 1.1 “ADS Record Date” shall have the meaning given to such term in Section 4.9.



     Section 1.2 “Affiliate” shall have the meaning assigned to such term by the Commission (as
hereinafter defined) under Regulation C promulgated under the Securities Act (as hereinafter
defined), or under any successor regulation thereto.



     Section 1.3 “American Depositary Receipt(s)”, “ADR(s)” and “Receipt(s)”
shall mean the certificate(s) issued by the Depositary to evidence the American Depositary Shares
issued under the terms of the Deposit Agreement in the form of Certificated ADS(s) (as



5









 







hereinafter defined), as such ADRs may be amended from time to time in accordance with the provisions of the
Deposit Agreement. An ADR may evidence any number of ADSs and may, in the case of ADSs held
through a central depository such as DTC, be in the form of a “Balance Certificate.”



     Section 1.4 “American Depositary Share(s)” and “ADS(s)” shall mean the rights and
interests in the Deposited Securities (as hereinafter defined) granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued as
Certificated ADS(s) (as hereinafter defined) the ADR(s) issued to evidence such ADSs. ADS(s) may
be issued under the terms of the Deposit Agreement in the form of (a) Certificated ADS(s) (as
hereinafter defined), in which case the ADS(s) are evidenced by ADR(s), or (b) Uncertificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are not evidenced by ADR(s) but are
reflected on the direct registration system maintained by the Depositary for such purposes under
the terms of Section 2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include Certificated ADS(s)
and Uncertificated ADS(s), individually or collectively, as the context may require. Each ADS
shall represent the right to receive one Share until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional ADSs are not issued, and thereafter each ADS shall
represent the Deposited Securities determined in accordance with the terms of such Sections.



     Section 1.5 “Applicant” shall have the meaning given to such term in Section 5.10.



     Section 1.6 “Beneficial Owner” shall mean, as to any ADS, any person or entity having a
beneficial interest deriving from the ownership of such ADS. A Beneficial Owner of ADSs may or may
not be the Holder of such ADSs. A Beneficial Owner shall be able to exercise any right or receive
any benefit hereunder solely through the person who is the Holder of the ADSs owned by such
Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed to be
the Beneficial Owner of all the ADSs registered in his/her/its name.



     Section 1.7 “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not (a) a day on which banking institutions in the Borough of Manhattan, The City
of New York, are authorized or obligated by law or executive order to close and (b) a day on which
the market(s) in which the ADRs are traded are closed.



     Section 1.8 “Certificated ADS(s)” shall have the meaning set forth in Section 2.13.



     Section 1.9 “Clearstream” shall mean Clearstream Banking AG, which provides the book-entry
settlement system for equity securities in Germany, or any successor entity thereto.



     Section 1.10 “Commission” shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency thereto in the United States.



     Section 1.11 “Company” shall mean QIMONDA AG, a company incorporated and existing under the
laws of Germany (as hereinafter defined), and its successors.



6









 





     Section 1.12 “Company’s Articles of Association and By-laws” shall mean the Company’s
Articles of Association and By-laws, as they may be amended from time to time.



     Section 1.13 “Custodian” shall mean, as of the date hereof, Citibank AG, Frankfurt, having
its principal office at Neue Mainzer Strasse 75, 60311 Frankfurt am Main, Germany, as the custodian
for the purposes of the Deposit Agreement, and any other entity that may be appointed by the
Depositary pursuant to the terms of Section 5.5 as successor, substitute or additional custodian
hereunder. The term “Custodian” shall mean any Custodian individually or all Custodians
collectively, as the context requires.



     Section 1.14 “Deliver” and “Delivery” shall mean, when used in respect of ADSs,
Deposited Securities and Shares, either (i) the physical delivery of the certificate(s)
representing such securities, or (ii) the electronic delivery of such securities by means of
book-entry transfer, if available.



     Section 1.15 “Deposit Agreement” shall mean this Deposit Agreement and all exhibits hereto,
as the same may from time to time be amended and supplemented from time to time in accordance with
the terms of the Deposit Agreement.



     Section 1.16 “Depositary” shall mean Citibank, N.A., a national banking association
organized under the laws of the United States, in its capacity as depositary under the terms of the
Deposit Agreement, and any successor depositary hereunder.



     Section 1.17 “Deposited Securities” shall mean all Shares at any time deposited under the
Deposit Agreement and any and all other securities, property and cash held by the Depositary or the
Custodian in respect thereof, subject, in the case of cash, to the provisions of Section 4.8. The
collateral delivered in connection with Pre-Release Transactions described in Section 5.10 shall
not constitute Deposited Securities.



     Section 1.18 “Dollars” and “$” shall refer to the lawful currency of the United
States.



     Section 1.19 “DTC” shall mean The Depository Trust Company, a national clearinghouse and
the central book-entry settlement system for securities traded in the United States and, as such,
the custodian for the securities of DTC Participants (as hereinafter defined) maintained in DTC,
and any successor thereto.



     Section 1.20 “DTC Participant” shall mean any financial institution (or any nominee of such
institution) having one or more participant account(s) with DTC for receiving, holding and
delivering the securities and cash held in DTC.



     Section 1.21 “Euro” and “€” shall refer to the lawful currency of the European
Union.



     Section 1.22 “Exchange Act” shall mean the United States Securities Exchange Act of 1934,
as amended from time to time.



     Section 1.23 “Foreign Currency” shall mean any currency other than Dollars.




7










 






     Section 1.24 “Full Entitlement ADR(s)”, “Full Entitlement ADS(s)” and
"Full Entitlement Share(s)” shall have the respective meanings set forth in Section 2.11.



     Section 1.25 “Germany” shall mean the Federal Republic of Germany.



     Section 1.26 “Holder(s)” shall mean the person(s) in whose name the ADSs are registered on
the books of the Depositary (or the Registrar, if any) maintained for such purpose. A Holder may
or may not be a Beneficial Owner. If a Holder is not the Beneficial Owner of the ADS(s) registered
in its name, such person shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs registered in its name.



     Section 1.27 “Indemnified Person” and “Indemnifying Person” shall have the meanings set
forth in Section 5.8 hereof.



     
Section 1.28 “Partial Entitlement ADR(s)”, “Partial Entitlement ADS(s)” and
“Partial Entitlement Share(s)” shall have the respective meanings set forth in Section
2.11.



     Section 1.29 “Pre-Release Transaction” shall have the meaning set forth in Section 5.10.



     Section 1.30 “Principal Office” shall mean, when used with respect to the Depositary, the
principal office of the Depositary at which at any particular time its depositary receipts business
shall be administered, which, at the date of the Deposit Agreement, is located at 388 Greenwich
Street, New York, New York 10013, U.S.A.



     Section 1.31 “Registrar” shall mean the Depositary or any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which, upon prior notice to the Company,
shall be appointed by the Depositary to register issuances, transfers and cancellations of ADSs as
herein provided, and shall include any co-registrar appointed by the Depositary for such purposes.
Registrars (other than the Depositary) may be removed and substitutes appointed by the Depositary
upon prior notification to the Company. Each Registrar (other than the Depositary) appointed
pursuant to the Deposit Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of the Deposit
Agreement.



     Section 1.32 “Restricted Securities” shall mean Shares, Deposited Securities or ADSs which
(i) have been acquired directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and are subject to resale
limitations under the Securities Act or the rules issued thereunder, or (ii) are held by an officer
or director (or persons performing similar functions) or other Affiliate of the Company, or (iii)
are subject to other restrictions on sale or deposit under the laws of the United States, Germany,
or under a shareholder agreement or the Company’s Articles of Association and By-laws or under the
regulations of an applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being transferred or sold to persons other than an Affiliate of the Company
in a transaction (a) covered by an effective resale registration statement, or (b) exempt



8









 







from the registration requirements of the Securities Act (as hereinafter defined), and the Shares, Deposited
Securities or ADSs are not, when held by such person(s), Restricted Securities.



     Section 1.33 “Restricted ADR(s)”, “Restricted ADS(s)” and “Restricted
Shares” shall have the respective meanings set forth in Section 2.14.



     Section 1.34 “Securities Act” shall mean the United States Securities Act of 1933, as
amended from time to time.



     Section 1.35 “Share Registrar” shall mean Registrar Services GmbH or any other institution
organized under the laws of Germany appointed by the Company to carry out the duties of registrar
for the Shares, and any successor thereto.



     Section 1.36 “Shares” shall mean the Company’s ordinary shares, without par value, validly
issued and outstanding and fully paid and may, if the Depositary so agrees after consultation with
the Company, include evidence of the right to receive Shares; provided that in no
event shall Shares include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have theretofore not been
validly waived or exercised; provided further, however, that, if
there shall occur any change in par or nominal value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of the Shares of the
Company, the term “Shares” shall thereafter, to the maximum extent permitted by law, represent the
successor securities resulting from such event.



     Section 1.37 “State(s)”shall mean any one of the states of the United States, or the
District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States.



     Section 1.38 “Uncertificated ADS(s)” shall have the meaning set forth in Section 2.13.



     Section 1.39 “United States” and “U.S.” shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.



ARTICLE II




APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;

DEPOSIT OF SHARES; EXECUTION AND

DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS




     Section 2.1 Appointment of Depositary. The Company hereby appoints the Depositary as
depositary for the Deposited Securities and hereby authorizes and directs the Depositary to act in
accordance with the terms and conditions set forth in the Deposit Agreement and the applicable
ADRs. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein)
issued in accordance with the terms and conditions of the Deposit Agreement shall be deemed for all
purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable
ADR(s), 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 the Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary



9









 







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 the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof.



     Section 2.2 Form and Transferability of ADSs.



     (a) Form. Certificated ADSs shall be evidenced by definitive ADRs which shall be
engraved, printed, lithographed or produced in such other manner as may be agreed upon by the
Company and the Depositary. ADRs may be issued under the Deposit Agreement in denominations of any
whole number of ADSs. The ADRs shall be substantially in the form set forth in Exhibit A
to the Deposit Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in the Deposit Agreement or required by law. ADRs shall be (i)
dated, (ii) signed by the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly authorized signatory
of the Registrar, and (iv) registered in the books maintained by the Registrar for the registration
of issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced thereby shall be
entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such ADR shall have
been so dated, signed, countersigned and registered. ADRs bearing the manual or facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly-authorized signatory of the Depositary or the Registrar, as the case may be,
shall bind the Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP number
that is different from any CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the Depositary (or any
other depositary) and the Company and which are not ADRs outstanding hereunder.



     (b) Legends. The ADRs may be endorsed with, or have incorporated in the text thereof,
such legends or recitals not inconsistent with the provisions of the Deposit Agreement as (i) may
be reasonably deemed necessary or appropriate for the Depositary to perform its obligations
hereunder, (ii) may be required to comply with any applicable laws or regulations, or with the
rules and regulations of any securities exchange or market upon which ADSs may be traded, listed or
quoted, or to conform with any usage with respect thereto, (iii) may be necessary to indicate any
special limitations or restrictions to which any particular ADRs or ADSs are subject by reason of
the date of issuance of the Deposited Securities or otherwise, or (iv) may be required by any
book-entry system in which the ADSs are held. Holders and Beneficial Owners shall be deemed, for
all purposes, to have notice of, and to be bound by, the terms and conditions of the legends set
forth, in the case of Holders, on the ADR registered in the name of the applicable Holders or, in
the case of Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial Owners.



     (c) Title. Subject to the limitations contained herein and in the ADR, title to an
ADR (and to each Certificated ADS evidenced thereby) shall be transferable upon the same terms as a
certificated security under the laws of the State of New York, provided that, in the case of



10









 







Certificated ADSs, such ADR has been properly endorsed or is accompanied by proper instruments of
transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and
treat the Holder of an ADS (that is, the person in whose name an ADS is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the Deposit Agreement or
any ADR to any holder or any Beneficial Owner unless such holder is the Holder registered on the
books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the
Beneficial Owner’s representative, is the Holder registered on the books of the Depositary.
Holders and Beneficial Owners shall be deemed, for all purposes, to have notice of, and to be bound
by, the terms and conditions of this Deposit Agreement and of the form of ADR, regardless of
whether their ADSs are Certificated ADSs.



     (d) Book-Entry Systems. The Depositary shall make arrangements for the acceptance of
the ADSs into DTC. All ADSs held through DTC will be registered in the name of the nominee for DTC
(currently “Cede & Co.”). As such, the nominee for DTC will be the only “Holder” of all ADSs held
through DTC. Unless issued by the Depositary as Uncertificated ADSs, the ADSs registered in the
name of Cede & Co. will be evidenced by a single ADR in the form of a “Balance Certificate,” which
will provide that it represents the aggregate number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and
that the aggregate number of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of DTC or its nominee as
hereinafter provided. Citibank, N.A. (or such other entity as is appointed by DTC or its nominee)
may hold the “Balance Certificate” as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to exercise or be
entitled to any rights attributable to such ADSs. The DTC Participants shall for all purposes be
deemed to have all requisite power and authority to act on behalf of the Beneficial Owners of the
ADSs held in the DTC Participants’ respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it by DTC
Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are held through DTC or
unless otherwise required by law, ownership of beneficial interests in the ADSs registered in the
name of the nominee for DTC will be shown on, and transfers of such ownership will be effected only
through, records maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the interests of clients
of DTC Participants).



     Section 2.3 Deposit with Custodian. Subject to the terms and conditions of the Deposit
Agreement and applicable law, Shares or evidence of rights to receive Shares (other than Restricted
Securities) may be deposited by any person (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the Company, to Section 5.7) at
any time, whether or not the transfer books of the Company or the Share Registrar, if any, are
closed, by Delivery of the Shares to the Custodian. Every deposit of Shares shall be accompanied
by the following: (A) (i) in the case of Shares represented by certificates issued in registered
form, appropriate instruments of transfer or endorsement, in a form satisfactory to the Custodian,
(ii) in the case of Shares represented by certificates in bearer form. the requisite coupons and
talons pertaining thereto, and (iii) in the case of Shares delivered by book-entry transfer,
confirmation of such book-entry transfer to the Custodian or that irrevocable



11









 







instructions have
been given to cause such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, the Depositary’s fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such Shares by way of
receipt) as may be required by the Depositary or the Custodian in accordance with the provisions of
the Deposit Agreement and applicable law, (C) if the Depositary so requires, a written order
directing the Depositary to issue and deliver to, or upon the written order of, the person(s)
stated in such order the number of ADSs representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and regulations of, any
applicable governmental agency in Germany, and (E) if the Depositary so requires, (i) an agreement,
assignment or instrument satisfactory to the Depositary or the Custodian which provides for the
prompt transfer by any person in whose name the Shares are or have been recorded to the Custodian
of any distribution, or right to subscribe for additional Shares or to receive other property in
respect of any such deposited Shares or, in lieu thereof, such indemnity or other agreement as
shall be satisfactory to the Depositary or the Custodian and (ii) if the Shares are registered in
the name of the person on whose behalf they are presented for deposit, a proxy or proxies entitling
the Custodian to exercise voting rights in respect of the Shares (subject to the terms of the
Deposit Agreement, including, without limitation, Section 4.10 of the Deposit Agreement) for any
and all
purposes until the Shares so deposited are registered in the name of the Depositary, the Custodian
or any nominee.



     Without limiting any other provision of the Deposit Agreement, the Depositary shall instruct
the Custodian not to, and the Depositary shall not knowingly, accept for deposit (a) any Restricted
Securities except as contemplated by Section 2.14) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which upon application of
the ADS to Shares ratio would give rise to fractional ADSs. No Shares shall be accepted for
deposit unless accompanied by evidence, if any is required by the Depositary, that is reasonably
satisfactory to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of Germany and any
necessary approval has been granted by any applicable governmental body in Germany, if any. The
Depositary may issue ADSs against evidence of rights to receive Shares from the Company, any agent
of the Company or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such evidence of rights
shall consist of written blanket or specific guarantees of ownership of Shares furnished by the
Company or any such custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares.



     Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit
under the Deposit Agreement (A) any Shares or other securities required to be registered under the
provisions of the Securities Act, unless (i) a registration statement is in effect as to such
Shares or other securities or (ii) the deposit is made upon terms contemplated in Section 2.14, or
(B) any Shares or other securities the deposit of which would violate any provisions of the
Company’s Articles of Association and By-laws. For purposes of the foregoing sentence, the
Depositary shall be entitled to rely upon representations and warranties made or deemed made
pursuant to the Deposit Agreement and shall not be required to make any further investigation. The
Depositary will comply with written instructions of the Company (received by the



12









 







Depositary
reasonably in advance) not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company’s compliance with the securities laws of the United
States.



     Section 2.4 Registration and Safekeeping of Deposited Securities. The Depositary shall
instruct the Custodian upon each Delivery of certificates representing registered Shares being
deposited hereunder with the Custodian (or other Deposited Securities pursuant to Article IV
hereof), together with the other documents above specified, to present such certificate(s),
together with the appropriate instrument(s) of transfer or endorsement, duly stamped, to the Share
Registrar for transfer and registration of the Shares (as soon as transfer and registration can be
accomplished and at the expense of the person for whom the deposit is made) in the name of the
Depositary, the Custodian or a nominee of either. Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or places as the Depositary
or the Custodian shall determine.



     Section 2.5 Issuance of ADSs.
The Depositary has made arrangements with the Custodian for the Custodian to confirm to the
Depositary upon receipt of a deposit of Shares (i) that a deposit of Shares has been made pursuant
to Section 2.3, (ii) that such Deposited Securities have been recorded in the name of the
Depositary, the Custodian or a nominee of either on the shareholders’ register maintained by or on
behalf of the Company by the Share Registrar if registered Shares have been deposited or, if
deposit is made by book-entry transfer, confirmation of such transfer in the books of Clearstream,
(iii) that all required documents have been received, and (iv) the person(s) to whom or upon whose
order ADSs are deliverable in respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk and expense of the
person making the deposit, by facsimile or other means of electronic transmission. Upon receiving
such notice from the Custodian, the Depositary, subject to the terms and conditions of the Deposit
Agreement and applicable law, shall issue the ADSs representing the Shares so deposited to or upon
the order of the person(s) named in the notice delivered to the Depositary and, if applicable,
shall execute and deliver at its Principal Office ADR(s) registered in the name(s) requested by
such person(s) and evidencing the aggregate number of ADSs to which such person(s) are entitled,
but, in each case, only upon payment to the Depositary of the charges of the Depositary for
accepting a deposit, issuing ADSs (as set forth in Section 5.9 and Exhibit B hereto) and
all taxes and governmental charges and fees payable in connection with such deposit and the
transfer of the Shares and the issuance of the ADS(s). The Depositary shall only issue ADSs in
whole numbers and deliver, if applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein
shall prohibit any Pre-Release Transaction upon the terms set forth in the Deposit Agreement.



     The Depositary shall have at all times a sufficient supply of ADRs to meet the demands of
transfers of ADSs or Shares deposited with the Depositary, the Custodian or any of their nominees.



     Section 2.6 Transfer, Combination and Split-up of ADRs.



13









 





     (a) Transfer. The Registrar shall, reasonably promptly, register the transfer of ADRs
(and of the ADSs represented thereby) on the books maintained for such purpose and the Depositary
shall, reasonably promptly, (x) cancel such ADRs and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i) the ADRs have been
duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at
its Principal Office for the purpose of effecting a transfer thereof, (ii) the surrendered ADRs
have been properly endorsed or are accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice), (iii) the
surrendered ADRs have been duly stamped (if required by the laws of the State of New York, of the
United States or of Germany), and (iv) all applicable fees and charges of, and expenses incurred
by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section
5.9 and Exhibit B hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as
in effect at the time thereof.



     (b) Combination & Split Up. The Registrar shall register, without unreasonable delay,
the split-up or combination of ADRs (and of the ADSs represented thereby) on the books maintained
for such purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for the number
of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by the ADRs
cancelled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the Holder thereof, if each of the following conditions has
been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a
split-up or combination thereof, and (ii) all applicable fees and charges of, and expenses incurred
by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section
5.9 and Exhibit B hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as
in effect at the time thereof.



     (c) Co-Transfer Agents. The Depositary, upon prior notification to the Company, may
appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance with applicable
laws and other requirements by Holders or persons entitled to such ADRs and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be
removed and substitutes appointed by the Depositary, at its expense and upon prior notification to
the Company. Each co-transfer agent appointed under this Section 2.6 (other than the Depositary)
shall give notice in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of the Deposit Agreement.



14









 





     Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The Holder of ADSs
shall be entitled to Delivery (at the Custodian’s designated office) of the Deposited Securities at
the time represented by the ADSs upon satisfaction of each of the following conditions: (i) the
Holder (or a duly-authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at
its Principal Office (and if applicable, the ADRs evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by
the Depositary, the ADRs Delivered to the Depositary for such purpose have been properly endorsed
in blank or are accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if so required by the
Depositary, the Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be Delivered to or
upon the written order of the person(s) designated in such order, and (iv) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 and Exhibit B) have been paid, subject, however,
in each case, to the terms and conditions of the ADRs evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company’s Articles of Association and By-laws and of any applicable laws
and the rules of Clearstream, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.



     Upon satisfaction of each of the conditions specified above, the Depositary (i) shall promptly
cancel the ADSs Delivered to it (and, if applicable, the ADRs evidencing the ADSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so
Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver
(without unreasonable delay) at the Custodian’s designated office the Deposited Securities
represented by the ADSs so canceled together with any certificate or other document of title for
the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the
case may be, to or upon the written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of the ADRs evidencing the ADSs so cancelled, of the Company’s Articles of
Association and By-laws, of any applicable laws and of the rules of Clearstream, and to the terms
and conditions of or governing the Deposited Securities, in each case as in effect at the time
thereof.



     The Depositary shall not accept for surrender ADSs representing less than one Share. In the
case of the Delivery to it of ADSs representing a number other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return
to the person surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered
and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.



     Notwithstanding anything else contained in any ADR or the Deposit Agreement, the Depositary
may make delivery at the Principal Office of the Depositary of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of shares or rights,



15









 







which
are at the time held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder
so surrendering ADSs, and for the account of such Holder, the Depositary shall direct the Custodian
to forward (to the extent permitted by law) any cash or other property (other than securities) held
by the Custodian in respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.



     Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of
Delivery, Transfer, etc.



     (a) Additional Requirements. As a condition precedent to the execution and delivery,
registration of issuance, transfer, split-up, combination or surrender, of any ADS, the delivery of
any distribution thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of ADSs or of an ADR of
a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1, and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of Deposited Securities
and (B) such reasonable regulations as the Depositary and the Company may establish consistent with
the provisions of the representative ADR, if applicable, the Deposit Agreement and applicable law.



     (b) Additional Limitations. The issuance of ADSs against deposits of Shares generally
or against deposits of particular Shares may be suspended, or the deposit of particular Shares may
be refused, or the registration of transfer of ADSs in particular instances may be refused, or the
registration of transfers of ADSs generally may be suspended, during any period when the transfer
books of the Company, the Depositary, a Registrar or the Share Registrar are closed or if any such
action is deemed necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law or regulation, any government or
governmental body or commission or any securities exchange on which the ADSs or Shares are listed,
or under any provision of the Deposit Agreement or the representative ADR(s), if applicable, or
under any provision of, or governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject, in all cases, to Section 7.8.



     (c) Regulatory Restrictions. Notwithstanding any provision of the Deposit Agreement
or any ADR(s) to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities associated herewith at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders’ meeting or the payment of dividends, (ii) the payment of fees, taxes
and similar charges, (iii) compliance with any U.S. or foreign laws or



16









 







governmental regulations
relating to the ADRs or to the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such
General Instructions may be amended from time to time).



     Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed, lost, or
stolen, the Depositary shall execute and deliver a new ADR of like tenor at the expense of the
Holder (a) in the case of a mutilated ADR, in exchange of and substitution for such mutilated ADR
upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in
substitution for such destroyed, lost, or
stolen ADR, after the Holder thereof (i) has submitted to the Depositary a written request for such
exchange and substitution before the Depositary has notice that the ADR has been acquired by a bona
fide purchaser, (ii) has provided such security or indemnity (including an indemnity bond) as may
be reasonably required by the Depositary to hold it and any of its agents harmless, and (iii) has
satisfied any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence reasonably satisfactory to the Depositary of such destruction, loss or theft
of such ADR, the authenticity thereof and the Holder’s ownership thereof.



     Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of Records. All
ADRs surrendered to the Depositary shall be canceled by the Depositary. Canceled ADRs shall not be
entitled to any benefits under the Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry form (i.e.,
through accounts at DTC) shall be deemed canceled when the Depositary causes the number of ADSs
evidenced by the Balance Certificate to be reduced by the number of ADSs surrendered (without the
need to physically destroy the Balance Certificate).



     Section 2.11 Escheatment. In the event any unclaimed property relating to the ADSs, for
any reason, is in the possession of Depositary and has not been claimed by the Holder thereof or
cannot be delivered to the Holder thereof through usual channels, the Depositary shall, upon
expiration of any applicable statutory period relating to abandoned property laws, escheat such
unclaimed property to the relevant authorities in accordance with the laws of each of the relevant
States of the United States.



     Section 2.12 Partial Entitlement ADSs. In the event any Shares are deposited which
(i) entitle the holders thereof to receive a per-share distribution or other entitlement in an
amount different from the Shares then on deposit or (ii) are not fully fungible (including, without
limitation, as to settlement or trading) with the Shares then on deposit (the Shares then on
deposit collectively, “Full Entitlement Shares” and the Shares with different entitlement,
“Partial Entitlement Shares”), the Depositary shall (i) cause the Custodian to hold Partial
Entitlement Shares separate and distinct from Full Entitlement Shares, and (ii) subject to the
terms of the Deposit Agreement, issue ADSs representing Partial Entitlement Shares which are
separate and distinct from the ADSs representing Full Entitlement Shares, by means of separate
CUSIP numbering and legending (if necessary) and, if applicable, by issuing ADRs evidencing such
ADSs with applicable notations thereon (“Partial Entitlement ADSs/ADRs” and “Full
Entitlement ADSs/ADRs”, respectively). If and when Partial Entitlement Shares become Full



17









 







Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of Partial Entitlement
ADSs and give Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c) take such actions as
are necessary to remove the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the
one hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners
of Partial Entitlement ADSs shall only be
entitled to the entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement Shares. All
provisions and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs and ADSs
to the same extent as Full Entitlement ADRs and ADSs, except as contemplated by this Section 2.12.
The Depositary is authorized to take any and all other actions as may be necessary (including,
without limitation, making the necessary notations on ADRs) to give effect to the terms of this
Section 2.12. The Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement Shares upon Delivery
to the Custodian.



     Section 2.13
Certificated/Uncertificated ADSs. Notwithstanding any other provision of the
Deposit Agreement, the Depositary may, at any time and from time to time, issue ADSs that are not
evidenced by ADRs (such ADSs, the “Uncertificated ADS(s)” and the ADS(s) evidenced by
ADR(s), the “Certificated ADS(s)”). When issuing and maintaining Uncertificated ADS(s)
under the Deposit Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration systems for equity
securities in New York and issuing uncertificated securities under New York law, and (ii) the terms
of New York law applicable to uncertificated equity securities. Uncertificated ADSs shall not be
represented by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are not subject to
any registered pledges, liens, restrictions or adverse claims of which the Depositary has notice at
such time, shall at all times have the right to exchange the Uncertificated ADS(s) for Certificated
ADS(s) of the same type and class, subject in each case to applicable laws and any rules and
regulations the Depositary may have established in respect of the Uncertificated ADSs. Holders of
Certificated ADSs shall, if the Depositary maintains a direct registration system for the ADSs,
have the right to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due surrender
of the Certificated ADS(s) to the Depositary for such purpose and (ii) the presentation of a
written request to that effect to the Depositary, subject in each case to (a) all liens and
restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse claims of which
the Depositary then has notice, (b) the terms of the Deposit Agreement and the rules and
regulations that the Depositary may establish for such purposes hereunder, (c) applicable law, and
(d) payment of the Depositary fees and expenses applicable to such exchange of Certificated ADS(s)
for Uncertificated ADS(s). Uncertificated ADSs shall in all respects be identical to Certificated
ADS(s) of the same type and class, except that (i) no ADR(s) shall be, or shall need to be, issued
to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to the terms of the
Deposit Agreement, be transferable upon the same terms and conditions as uncertificated securities
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be recorded on the books of
the Depositary maintained



18









 







for such purpose and evidence of such ownership shall be reflected in
periodic statements provided by the Depositary to the Holder(s) in accordance with applicable New
York law, (iv) the Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement existing rules and
regulations, as may be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that (a) such rules and regulations do not conflict with the terms of the Deposit
Agreement and applicable law, and (b) the terms of such rules and regulations are readily available to Holders upon request, (v) the Uncertificated ADS(s)
shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for
any purpose against the Depositary or the Company unless such Uncertificated ADS(s) is/are
registered on the books of the Depositary maintained for such purpose, (vi) the Depositary may, in
connection with any deposit of Shares resulting in the issuance of Uncertificated ADSs and with any
transfer, pledge, release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii) upon termination of
the Deposit Agreement, the Depositary shall not require Holders of Uncertificated ADSs to
affirmatively instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders’ Uncertificated ADSs under the terms of Section 6.2 of the
Deposit Agreement. When issuing ADSs under the terms of the Deposit Agreement, including, without
limitation, issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in
its discretion determine to issue Uncertificated ADSs rather than Certificated ADSs, unless
otherwise specifically instructed by the applicable Holder to issue Certificated ADSs. All
provisions and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to the same
extent as to Certificated ADSs, except as contemplated by this Section 2.13. The Depositary is
authorized and directed to take any and all actions and establish any and all procedures deemed
reasonably necessary to give effect to the terms of this Section 2.13. Any references in the
Deposit Agreement or any ADR(s) to the terms “American Depositary Share(s)” or “ADS(s)” shall,
unless the context otherwise requires, include Certificated ADS(s) and Uncertificated ADS(s).
Except as set forth in this Section 2.13 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding under the terms of the Deposit
Agreement. In the event that, in determining the rights and obligations of parties hereto with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13, the terms and
conditions set forth in this Section 2.13 shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the Uncertificated ADSs.



     Section 2.14
Restricted ADSs. The Depositary shall, at the request and expense of the
Company, establish procedures enabling the deposit hereunder of Shares that are Restricted
Securities in order to enable the holder of such Shares to hold its ownership interests in such
Restricted Shares in the form of ADSs issued under the terms hereof (such Shares, “Restricted
Shares”). Upon receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the deposit of such
Restricted Shares and the issuance of ADSs representing such deposited Restricted Shares (such
ADSs, the “Restricted ADSs,” and the ADRs evidencing such Restricted ADSs, the
“Restricted ADRs”). The Company shall assist the Depositary in the establishment of such
procedures and agrees that it shall take all steps necessary and reasonably satisfactory to the
Depositary to insure



19









 







that the establishment of such procedures does not violate the provisions of
the Securities Act or any other applicable laws. The depositors of such Restricted Shares and the
holders of the Restricted ADSs may be required prior to the deposit of such Restricted Shares, the
transfer of the Restricted ADRs and the Restricted ADSs evidenced thereby or the withdrawal of the
Restricted Shares represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall provide to the
Depositary in writing the legend(s) to be affixed to the Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the Restricted ADRs and the
Restricted ADSs represented thereby may be transferred or the Restricted Shares withdrawn. The
Restricted ADSs issued upon the deposit of Restricted Shares shall be separately identified on the
books of the Depositary and the Restricted Shares so deposited shall be held separate and distinct
from the other Deposited Securities held hereunder. The Restricted Shares and the Restricted ADSs
shall not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be eligible for
inclusion in any book-entry settlement system, including, without limitation, DTC, and shall not in
any way be fungible with the ADSs issued under the terms hereof that are not Restricted ADSs. The
Restricted ADRs and the Restricted ADSs evidenced thereby shall be transferable only by the Holder
thereof upon delivery to the Depositary of (i) all documentation otherwise contemplated by the
Deposit Agreement and (ii) an opinion of counsel reasonably satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is, and the Restricted
ADSs evidenced thereby are, transferable by the Holder thereof under applicable securities laws and
the transfer restrictions contained in the legend set forth on the Restricted ADR presented for
transfer. Except as set forth in this Section 2.14 and except as required by applicable law, the
Restricted ADRs and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs issued
and outstanding under the terms of the Deposit Agreement. In the event that, in determining the
rights and obligations of parties hereto with respect to any Restricted ADSs, any conflict arises
between (a) the terms of the Deposit Agreement (other than this Section 2.14) and (b) the terms of
(i) this Section 2.14 or (ii) the applicable Restricted ADR, the terms and conditions set forth in
this Section 2.14 and of the Restricted ADR shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the deposited Restricted Shares,
the Restricted ADSs and Restricted ADRs.



     If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to be Restricted
Securities, the Depositary, upon receipt of (x) an opinion of counsel reasonably satisfactory to
the Depositary setting forth, inter alia, that the Restricted ADRs, the Restricted ADSs and the
Restricted Shares are not as of such time Restricted Securities, and (y) instructions from the
Company to remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations between the applicable
Restricted Shares held on deposit under this Section 2.14 and the other Shares held on deposit
under the terms of the Deposit Agreement that are not Restricted Shares, (ii) treat the newly
unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the other ADRs and ADSs
issued and outstanding under the terms of the Deposit Agreement that are not Restricted ADRs or
Restricted ADSs, (iii) take all actions necessary to remove any distinctions, limitations and
restrictions previously existing under this Section 2.14 between the applicable Restricted ADRs and
Restricted ADSs, respectively, on the one hand, and the other ADRs and ADSs that are not Restricted
ADRs or Restricted ADSs, respectively, on the other hand,



20









 







including, without limitation, by making
the newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion in the
applicable book-entry settlement systems.



ARTICLE III




CERTAIN OBLIGATIONS OF HOLDERS

AND BENEFICIAL OWNERS OF ADSs




     Section 3.1 Proofs, Certificates and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary and the Custodian such proof of citizenship
or residence, taxpayer status, payment of all applicable taxes or other governmental charges,
exchange control approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws, the terms of the Deposit Agreement or the ADR(s) evidencing the
ADSs and the provisions of, or governing, the Deposited Securities, to execute such certifications
and to make such representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for deposit, such information
relating to the registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may reasonably deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its obligations under the
Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any ADR or ADS or the
distribution or sale of any dividend or distribution of rights or of the proceeds thereof or, to
the extent not limited by the terms of Section 7.8, the delivery of any Deposited Securities until
such proof or other information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided, in each case to the
Depositary’s, the Registrar’s and the Company’s satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and appropriate of (i) any such
proofs of citizenship or residence, taxpayer status, exchange control approval, or written
representations or warranties which it receives from Holders and Beneficial Owners, and (ii) any
other information or documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person presenting Shares for
deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if (x) not provided to it by the Holders
or Beneficial Owners, or (y) subject to a confidentiality undertaking, or (ii) verify or vouch for
the accuracy of the information so provided by the Holders or Beneficial Owners.



     Section 3.2
Liability for Taxes and Other Charges. Any tax or other governmental charge
payable by the Custodian or by the Depositary with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the Depositary. The Company, the
Custodian and/or the Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial Owner any or all of
the Deposited Securities and apply such distributions and sale proceeds in payment of such taxes
(including applicable interest and penalties) or other governmental charges, the Holder and the
Beneficial Owner remaining liable for any deficiency.



21









 







The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of ADSs,
register the split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or interest is received.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian,
and any of their agents, officers, employees and Affiliates for, and to hold each of them harmless
from, any claims with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner. The obligations of Holders and Beneficial
Owners of ADSs under this Section 3.2 shall survive any transfer of ADSs, any surrender of ADSs and
withdrawal of Deposited Securities, or the termination of this Deposit Agreement.



     Section 3.3 Representations and Warranties on Deposit of Shares. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
Shares and the certificates therefor are duly authorized, validly issued, fully paid,
non-assessable and legally obtained by such person, (ii) all preemptive (and similar) rights, if
any, with respect to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim, and (v) the Shares
presented for deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.14), and (vi) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and warranties shall survive
the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and
the transfer of such ADSs. If any such representations or warranties are false in any way, the
Company and the Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences thereof.



     Section 3.4 Compliance with Information Requests and Applicable Law. Notwithstanding
any other provision of the Deposit Agreement, any ADR(s) or the Company’s Articles of Association
and By-laws, each Holder and Beneficial Owner agrees to comply with requests from the Company
pursuant to applicable law (including, without limitation, relevant German law), the rules and
requirements of the NYSE, and any other stock exchange on which the Shares or ADSs are, or will be,
registered, traded or listed or the Company’s Articles of Association and By-laws, which are made
to provide information, inter alia, as to the capacity in which such Holder or Beneficial Owner
owns ADSs (and Shares as the case may be) and regarding the identity of any other person(s)
interested in such ADSs and the nature of such interest and various other matters, whether or not
they are Holders and/or Beneficial Owners at the time of such request. The Depositary agrees to
use its reasonable efforts to forward, upon the request of the Company and at the Company’s
expense, any such request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary, and to use its reasonable efforts, at the
Company’s request and expense, to assist the Company in obtaining such information with respect to
the ADSs, provided that nothing herein shall be interpreted as obligating the Depositary to provide
or obtain any such information (a) not provided to the Depositary by such Holder and/or Beneficial
Owner; or (b) the disclosure of which is prohibited by applicable laws. The Company may also
request the Depositary to furnish the Company, at the Company’s expense, with such information or
documents as the




22










 






Company may require (to the extent the Depositary is in possession of such information and the
disclosure of such information is permitted by applicable laws) in order to promote compliance with
the provisions of or governing the Deposited Securities and under the Company’s Articles of
Association and By-laws.




     Without limiting the generality of the foregoing, each Holder and Beneficial Owner agrees to
comply with all applicable provisions of German law, the rules and requirements of any stock
exchange on which the Shares are, or will be registered, traded or listed and the Company’s
Articles of Association and By-laws regarding any such Holder or Beneficial Owner’s interest in
Shares (including the aggregate of ADSs and Shares held by each such Holder or Beneficial Owner),
in compliance, if applicable, with Sections 21 and 22 of the German Securities Trading Act
(Wertpapierhandelsgesetz) or, if applicable, Section 20 of the German Stock Corporation Act
(Aktiengesetz), or any substitute or supplemental provision of German law that may be brought into
force from time to time. Each Holder and Beneficial Owner acknowledges that, at the date of the
Deposit Agreement, the statutory notification obligations of the German Stock Corporation Act
(Aktiengesetz) apply to any enterprise that, either directly or by way of imputation pursuant to
the provisions of Section 20(2) or Section 16(4) of the German Stock Corporation Act
(Aktiengesetz), owns more than 25% of the shares of, or 50% of the shares or voting rights in, the
Company or, after having exceeded either of these thresholds, no longer owns such percentage.
Further, each Holder and Beneficial Owner acknowledges that, in the event the statutory
notification obligations of the German Securities Trading Act (Wertpapierhandelsgesetz) become
applicable, at the date of the Deposit Agreement, such notification obligations apply to anyone
whose holding, either directly or by way of imputation pursuant to the provisions of Section 22 of
the German Securities Trading Act (Wertpapierhandelsgesetz), 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 thereof has an interest. Each Holder and Beneficial Owner of
ADSs further agrees to furnish the Company with any such notification made in accordance with this
Section 3.4 and to comply with requests from the Company pursuant to the laws of Germany, the rules
and requirements of any stock exchange on which the Shares are, or will be registered, traded or
listed, and the Company’s Articles of Association and By-laws, whether or not they are Holders
and/or Beneficial Owners at the time of such request.



     Section 3.5 Ownership Restrictions. Notwithstanding any other provision in the Deposit
Agreement or any ADR, the Company may restrict transfers of the Shares where such transfer might
result in ownership of Shares exceeding limits imposed by applicable law or the Company’s Articles
of Association and By-laws. The Company may also restrict, in such manner as it deems appropriate,
transfers of the ADSs where such transfer may result in the total number of Shares represented by
the ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may,
in its sole discretion but subject to applicable law and the Company’s Articles of Association and
By-laws, instruct the Depositary to take action with respect to the ownership interest of any
Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including,
but not limited to, the imposition of restrictions on



23









 







the transfer of ADSs, the removal or limitation of
voting rights or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the
Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable law and the Company’s
Articles of Association and By-laws.



ARTICLE IV




THE DEPOSITED SECURITIES




     Section 4.1 Cash Distributions. Whenever the Depositary receives confirmation from the
Custodian of the receipt of any cash dividend or other cash distribution on any Deposited
Securities, or receives proceeds from the sale of any Deposited Securities or any other
entitlements held in respect of Deposited Securities under the terms hereof, the Depositary will
(i) if at the time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be converted such cash
dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8), (ii) if
applicable, establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of
the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed without attributing to
any Holder a fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs outstanding at the time of
the next distribution. If the Company, the Custodian or the Depositary is required to withhold and
does withhold from any cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof by the Company
shall be forwarded by the Company to the Depositary upon request.



     Section 4.2 Distribution in Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Company shall cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name of the Depositary,
the Custodian or their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms described in Section
4.9 and either (i) the Depositary shall, subject to Section 5.9, distribute to the Holders as of
the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such dividend, or free
distribution, subject to the other terms of the Deposit Agreement (including, without limitation,
(a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and interests in the
additional integral number of Shares distributed upon the



24









 







Deposited Securities represented thereby
(net of (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms described in Section 4.1. In the event that the Depositary determines that
any distribution in property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the fulfillment of its
obligation under Section 5.7, has furnished an opinion of U.S. counsel determining that Shares must
be registered under the Securities Act or other laws in order to be distributed to Holders (and no
such registration statement has been declared effective), the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions of the Deposit
Agreement.



     Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company intends to make
a distribution payable at the election of the holders of Shares in cash or in additional Shares,
the Company shall give notice thereof to the Depositary at least forty-five (45) days prior to the
proposed distribution stating whether or not it wishes such elective distribution to be made
available to Holders of ADSs. Upon timely receipt of notice indicating that the Company wishes
such elective distribution to be made available to Holders of ADSs, the Depositary shall consult
with the Company to determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective distribution available to the
Holders of ADSs. The Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be made available to
Holders of ADSs, (ii) the Depositary shall have determined that such distribution is reasonably
practicable and (iii) the Depositary shall have received satisfactory documentation within the
terms of Section 5.7. If the above conditions are not satisfied, the Depositary shall, to the
extent permitted by law, distribute to the Holders, on the basis of the same determination as is
made in the Company’s home market in respect of the Shares for which no election is made, either
(X) cash upon the terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above conditions are satisfied,
the Depositary shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed distribution in cash or
in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed distribution (X) in cash, the
distribution shall be made upon the terms described in Section 4.1, or (Y) in ADSs, the
distribution shall be made upon the terms described in Section 4.2. Nothing herein shall obligate
the Depositary to make available to Holders a method to receive the elective distribution in Shares
(rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.



     Section 4.4 Distribution of Rights to Purchase Additional ADSs.



25









 





     (a) Distribution to ADS Holders. Whenever the Company intends to distribute to the
holders of the Deposited Securities rights to subscribe for additional Shares, the Company shall
give notice thereof to the Depositary at least forty-five (45) days prior to the proposed
distribution stating whether or not it wishes such rights to be made available to Holders of ADSs.
Upon timely receipt of a notice indicating that the Company wishes such rights to be made available
to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company
shall assist the Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such rights available to
Holders only if (i) the Company shall have timely requested that such rights be made available to
Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of
Section 5.7, and (iii) the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are not satisfied or if
the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b) below. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon
the terms described in Section 4.9) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid
exercise of such rights. The Company shall assist the Depositary to the extent necessary in
establishing such procedures. Nothing herein shall obligate the Depositary to make available to
the Holders a method to exercise rights to subscribe for Shares (rather than ADSs).



     (b) Sale of Rights. If (i) the Company does not timely request the Depositary to make
the rights available to Holders or requests that the rights not be made available to Holders, (ii)
the Depositary fails to receive satisfactory documentation within the terms of Section 5.7 or
determines it is not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the Depositary shall
determine whether it is lawful and reasonably practicable to sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public or private sale) as it may
deem practicable. The Company shall assist the Depositary to the extent necessary to determine
such legality and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1.



     (c) Lapse of Rights. If the Depositary is unable to make any rights available to
Holders upon the terms described in Section 4.4(a) or to arrange for the sale of the rights upon
the terms described in Section 4.4(b), the Depositary shall allow such rights to lapse.



     Neither the Company nor the Depositary shall be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or exercise, or (iii) the content of any materials forwarded to the
Holders on behalf of the Company in connection with the rights distribution.



26









 





     Notwithstanding anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights or such securities to Holders
and to sell the securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the Securities Act (or
other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the
Depositary opinion(s) of U.S. counsel for the Company and counsel to the Company in any other
applicable country in which rights would be distributed (any such opinion required of German
counsel may consist of an opinion of in-house counsel to the Company qualified in the applicable
jurisdiction provided on the Company’s letterhead), in each case reasonably satisfactory to the
Depositary, to the effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws.



     In the event that the Company, the Depositary or the Custodian shall be required to withhold
and does withhold from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.



     There can be no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to receive or exercise rights on the same terms and conditions as the holders of
Shares or be able to exercise such rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to be acquired upon
the exercise of such rights.



     Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares.



     (a) Whenever the Company intends to distribute to the holders of Deposited Securities property
other than cash, Shares or rights to purchase additional Shares, the Company shall give timely
notice thereof to the Depositary and shall indicate whether or not it wishes such distribution to
be made to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the Company, and the
Company shall assist the Depositary, to determine whether such distribution to Holders is lawful
and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company
shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall
have received satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary,
after consulting with the Company, shall have determined that such distribution is reasonably
practicable.



     (b) Upon receipt of satisfactory documentation and the request of the Company to distribute
property to Holders of ADSs and after making the requisite determinations set forth in



27









 







(a) above, the Depositary shall distribute the property so received to the Holders of record, as of the ADS
Record Date, in proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment
or net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii)
net of any taxes withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including public or private sale) as
the Depositary may deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the distribution.



     (c) If (i) the Company does not request the Depositary to make such distribution to Holders or
requests not to make such distribution to Holders, (ii) the Depositary does not receive
satisfactory documentation within the terms of Section 5.7, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or places and upon such
terms as it may deem practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion received by the
Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes) to the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of such property for the
account of the Holders in any way it deems reasonably practicable under the circumstances.



     (d) Neither the Depositary nor the Company shall be responsible for (i) any failure to
determine whether it is lawful or practicable to make the property described in this Section 4.5
available to Holders in general or any Holders in particular, and (ii) any loss incurred in
connection with the sale or disposal of such property.



     Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form. Subject to
the terms of this Article IV, distributions in respect of Deposited Securities that are held by the
Depositary in bearer form shall be made to the Depositary for the account of the respective Holders
of ADS(s) with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or certificates. The
Company shall promptly notify the Depositary of such distributions. The Depositary or the
Custodian shall promptly present such coupons, talons or certificates, as the case may be, in
connection with any such distribution.



     Section 4.7 Redemption. If the Company intends to exercise any right of redemption in
respect of any of the Deposited Securities, the Company shall give timely notice thereof to the
Depositary as is reasonably practicable having regard to all applicable regulatory and other
requirements to which the Company is subject from time to time, which notice shall set forth the
particulars of the proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the terms of Section 5.7,
and only if the Depositary shall
have determined that such proposed redemption is practicable, the Depositary shall provide to each
Holder a notice setting forth the intended exercise by the Company of the redemption rights and any
other particulars set forth in the Company’s notice to the Depositary. The Depositary shall
instruct the Custodian to present to



28









 







the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable redemption price. Upon
receipt of confirmation from the Custodian that the redemption has taken place and that funds
representing the redemption price have been received, the Depositary shall convert, transfer, and
distribute the proceeds (net of applicable (a) fees and charges of, and the expenses incurred by,
the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of such
ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by lot or on
a pro rata basis, as may be determined by the Depositary. The redemption price per ADS shall be
the dollar equivalent of the per share amount received by the Depositary (adjusted to reflect the
ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented by ADSs
(subject to the terms of Section 4.8 and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities represented by each
ADS redeemed.



     Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or the Custodian shall
receive Foreign Currency, by way of dividends or other distributions or the net proceeds from the
sale of securities, property or rights, which in the reasonable judgment of the Depositary can at
such time be converted on a practicable basis, by sale or in any other manner that it may determine
in accordance with applicable law, into Dollars transferable to the United States and distributable
to the Holders entitled thereto, the Depositary shall, reasonably promptly, convert or cause to be
converted, by sale or in any other manner that it may determine, such Foreign Currency into
Dollars, and shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on behalf of the Holders
in complying with currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of the Deposit Agreement. If the Depositary shall have
distributed warrants or other instruments that entitle the holders thereof to such Dollars, the
Depositary shall distribute such Dollars to the holders of such warrants and/or instruments upon
surrender thereof for cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of any application of exchange restrictions or otherwise.



     If such conversion or distribution generally or with regard to a particular Holder can be
effected only with the approval or license of any government or agency thereof, the Depositary
shall have authority to file such application for approval or license, if any, as it may deem
desirable (acting in good faith). In no event, however, shall the Depositary be obligated to make
such a filing.



     If at any time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such conversion received by the
Depositary is not reasonably practicable or lawful, or if any approval or license of any
governmental authority or agency thereof that is required for such conversion, transfer and
distribution is denied or, in the good faith opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion, transfer and
distribution is lawful and practicable, (ii) distribute the Foreign Currency (or an appropriate



29









 







document evidencing the right to receive such Foreign Currency) to Holders for whom this is lawful
and practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders entitled to receive the
same.



     Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall receive notice of the
fixing of a record date by the Company for the determination of holders of Deposited Securities
entitled to receive any distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares that are represented
by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of
consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary
shall find it necessary or convenient in connection with the giving of any notice, solicitation of
any consent or any other matter, the Depositary shall, after consultation with the Company (if
practicable), fix a record date (the “ADS Record Date”) for the determination of the
Holders of ADS(s) who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent, to receive such
notice or solicitation or to otherwise take action, or to exercise the rights of Holders with
respect to such changed number of Shares represented by each ADS. The Depositary shall make
reasonable efforts to establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in Germany. Subject to applicable
law and the provisions of Section 4.1 through 4.8 and to the other terms and conditions of the
Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record
Date shall be entitled to receive such distribution, to give such voting instructions, to receive
such notice or solicitation, or otherwise take action. The Depositary shall promptly notify the
NYSE of any action to fix a record date for the ADSs or to close the transfer books for the ADSs.



     Section 4.10 Voting of Deposited Securities. As soon as practicable after receipt from the
Company of notice of any meeting at which the holders of Deposited Securities are entitled to vote,
or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary
shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least thirty (30) days prior to the date of such vote
or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to
Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy,
(b) a statement that the Holders at the close of business on the ADS Record Date (i) will be
entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Articles of
Association and By-laws of the Company and the provisions of or governing the Deposited Securities
(which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of
the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs
and (ii) may be deemed, if the Company has appointed a Proxy Bank as set forth below, to have
instructed the Depositary to give a proxy to the Proxy Bank (as hereinafter defined) to vote the
Deposited Securities represented by their ADSs in accordance with the recommendations of the Proxy
Bank, and (c) a brief statement as to the manner in which such voting instructions may be given.



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     Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to
the extent not prohibited by law, regulations or applicable stock exchange requirements and after
consultation with the Company, in lieu of distribution of the materials provided to the Depositary
in connection with any meeting of, or solicitation of consents or proxies from, holders of
Deposited Securities, distribute to the Holders a notice that provides Holders with a means to
retrieve such materials or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the materials).



     Voting instructions may be given only in respect of a number of ADSs representing an integral
number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record
Date of voting instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit
Agreement, Company’s Articles of Association and By-laws and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder’s ADSs in accordance with such voting instructions.



     Notwithstanding anything to the contrary in this Deposit Agreement, if the Company appoints a
proxy bank in accordance with Sections 128 and 135 of the German Stock Corporation Act
(Aktiengesetz) for the Deposited Securities (the “Proxy Bank”), the Company shall give
notice thereof to the Depositary and the Depositary shall give notice thereof to the Holders of
ADSs in the materials distributed hereunder to Holders of ADSs as of the ADS Record Date. Holders
of ADSs who do not timely give voting instructions to the Depositary in the manner specified by the
Depositary shall be deemed to have instructed the Depositary to give a proxy to the Proxy Bank to
vote the Deposited Securities represented by such Holders’ ADSs, in accordance with the
recommendations of the Proxy Bank pursuant to Section 128(2) of the German Stock Corporation Act
(Aktiengesetz) provided that (i) the Depositary and the Company have provided timely notice to
Holders as of the applicable ADS Record Date that the Company has appointed a Proxy Bank for the
Deposited Securities, and (ii) the taking of such actions does not violate any U.S. or German laws,
or any terms of the Company’s Articles of Association or By-laws. The Company shall have the right
to appoint and terminate the Proxy Bank in its sole and absolute discretion, and in the event of
termination or resignation of the Proxy Bank, the Company shall have the right to appoint another
Proxy Bank in its sole and absolute discretion, but shall give notice thereof to the Depositary.



     Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion
as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right
to vote, or in any way make use of for purposes of establishing a quorum or otherwise, the
Deposited Securities represented by ADSs, except pursuant to and in accordance
with the voting instructions timely received from Holders or the provisions of the preceding
paragraph. If the Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities represented by such
Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice
distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth
in such voting instructions. Deposited Securities represented by ADSs for which no timely



31









 







voting instructions are received by the Depositary from the Holder shall not be voted, except as
contemplated herein. Notwithstanding anything else contained herein, the Depositary shall, if so
requested in writing by the Company in respect of any meeting of shareholders, represent all
Deposited Securities (whether or not voting instructions have been received in respect of such
Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing
quorum at such meeting.



     Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or solicitation of
consents or proxies, of holders of Deposited Securities if the taking of such action would violate
U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders
and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to
deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken
if so requested by the Depositary.



     There can be no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.



     Section 4.11 Changes Affecting Deposited Securities. Upon any change in nominal or par
value, split-up, cancellation, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by the Depositary or the
Custodian in exchange for, or in conversion of or replacement of or otherwise in respect of, such
Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Securities
under the Deposit Agreement, and the ADRs shall, subject to the provisions of the Deposit Agreement
and applicable law, evidence ADSs representing the right to receive such additional securities. In
giving effect to such change, split-up, cancellation, consolidation or other reclassification of
Deposited Securities, recapitalization, organization, merger, consolidation or sale of assets, the
Depositary may, with the Company’s approval, and shall, if the Company shall so request, subject to
the terms of the Deposit Agreement and receipt of an opinion of counsel to the Company (which such
opinion of counsel may consist of an opinion of in-house counsel to the Company provided on the
Company’s letterhead), reasonably satisfactory to the Depositary that such actions are not in
violation of any applicable laws or regulations, (i) issue and deliver additional ADSs as in the
case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs,
(iii) amend the applicable Registration Statement(s) on Form F-6 as filed with the Commission in
respect of the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs
specifically describing the newly received Deposited Securities, and (v) take such other actions as
are appropriate to reflect the transaction with respect to the ADSs.
The Company agrees to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of ADRs. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company’s approval, and shall, if the Company requests,
subject to receipt of an opinion of Company’s counsel reasonably satisfactory to the Depositary
that such action is not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at



32









 







such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such securities
upon an averaged or other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.1. The Depositary shall not be responsible for
(i) any failure to determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser of such securities.



     Section 4.12 Available Information. The Company is subject to the periodic reporting
requirements of the Exchange Act and accordingly files certain information with the Commission.
These reports and documents can be retrieved from the Commission’s website (www.sec.gov) and can be
inspected and copied at the public reference facilities maintained by the Commission located (as of
the date of the Deposit Agreement) at 100 F Street, N.E., Washington D.C. 20549.



     Section 4.13 Reports. The Depositary shall make available during normal business hours on
any Business Day for inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are both (a) received by
the Depositary, the Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited Securities by the
Company. The Depositary shall also provide or make available to Holders copies of such reports
when furnished by the Company pursuant to Section 5.6.



     Section 4.14 List of Holders. Promptly upon written request by the Company, the Depositary
shall (i) furnish to it a list, as of a recent date, of the names, addresses and holdings of ADSs
of all Holders, and (ii) at the expense of the Company, request a list of Beneficial Owners (to the
extent available).



     Section 4.15 Taxation. The Depositary will, and will instruct the Custodian to, forward to
the Company or its agents such information from its records as the Company may reasonably request
to enable the Company or its agents to file the necessary reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file such reports as are
necessary to reduce or eliminate applicable taxes on dividends and on other distributions in
respect of Deposited Securities under applicable tax treaties or laws for the Holders and
Beneficial Owners. In accordance with instructions from the Company and to the extent practicable,
the Depositary or the Custodian will take reasonable administrative actions to obtain tax refunds,
reduced withholding of tax at source on dividends and other benefits under applicable tax treaties
or laws with respect to dividends and other distributions on the Deposited Securities. As a
condition to receiving such benefits, Holders and Beneficial Owners of ADSs may be required from
time to time, and in a timely manner, to file such proof of taxpayer status, residence and
beneficial ownership (as applicable), to execute such certificates and to make such representations
and warranties, or to provide any other information or documents, as the Depositary or the
Custodian may deem necessary or proper to fulfill the Depositary’s or the Custodian’s obligations
under applicable law. The Depositary and the



33









 







Company shall have no obligation or liability to any
person if any Holder or Beneficial Owner fails to provide such information or if such information
does not reach relevant tax authorities in time for any Holder or Beneficial Owner to obtain the
benefit of any tax treaty. The Holders and Beneficial Owners shall indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents and Affiliates
against, and hold each of them harmless from, any claims by any governmental authority with respect
to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced rate
of withholding at source or other tax benefit obtained.



     If the Company (or any of its agents) withholds from any distribution any amount on account of
taxes or governmental charges, or pays any other tax in respect of such distribution (i.e., stamp
duty tax, capital gains or other similar tax), the Company shall (and shall cause such agent to)
remit promptly to the Depositary information about such taxes or governmental charges withheld or
paid, and, if so requested, the tax receipt (or other proof of payment to the applicable
governmental authority) therefor, in each case, in a form reasonably satisfactory to the
Depositary. The Depositary shall, to the extent required by U.S. law, report to Holders any taxes
withheld by it or the Custodian, and, if such information is provided to it by the Company, any
taxes withheld by the Company. The Depositary and the Custodian shall not be required to provide
the Holders with any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the evidence is provided
by the Company to the Depositary or the Custodian, as applicable. Neither the Depositary nor the
Custodian shall be liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such Holder’s or Beneficial Owner’s income tax
liability.



     The Depositary is under no obligation to provide the Holders and Beneficial Owners with any
information about the tax status of the Company. The Depositary shall not incur any liability for
any tax consequences that may be incurred by Holders and Beneficial Owners on account of their
ownership of the ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a “Passive Foreign Investment Company” (in each case
as defined in the U.S. Internal Revenue Code and the regulations issued thereunder) or otherwise.



ARTICLE V




THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY




     Section 5.1 Maintenance of Office and Transfer Books by the Registrar. Until termination
of the Deposit Agreement in accordance with its terms, the Registrar shall maintain in the Borough
of Manhattan, the City of New York, an office and facilities for the issuance and delivery of ADSs,
the acceptance for surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups of ADS(s) and, if
applicable, to countersign ADRs evidencing the ADSs so issued, transferred, combined or split-up,
in each case in accordance with the provisions of the Deposit Agreement.



34









 





     The Registrar shall keep books for the registration of ADSs (reflecting all issuances,
cancellations and transfers of ADSs) in accordance with the laws and regulations applicable to the
Depositary and such books shall at all reasonable times shall be open for inspection by the Company
and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrar’s
knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business
or object other than the business of the Company or other than a matter related to the Deposit
Agreement or the ADSs. Prior to destroying any records pertaining to the registration of ADSs, the
Depositary will notify the Company and will, upon the request and at the expense of the Company,
turn such records over (or provide copy thereof) to the Company.



     Upon written notice to the Company, the Registrar may close the transfer books with respect to
the ADSs, at any time or from time to time, when deemed necessary or advisable by it in good faith
in connection with the due performance of its duties hereunder, or at the reasonable written
request of the Company, subject, in all cases, to Section 7.8.



     If any ADSs are listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of issuances, cancellations, transfers, combinations and split-ups
of ADSs and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred,
combined or split-up, in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes appointed by the
Depositary, with notice to the Company.



     Section 5.2 Exoneration. Neither the Depositary nor the Company shall be obligated to do
or perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of the Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States, Germany or any other
country, or of any other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason of any provision,
present or future, of the Company’s Articles of Association and By-laws or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or other circumstances
beyond its control (including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement or in the Company’s Articles of Association and
By-laws or provisions of or governing Deposited Securities, (iii) for any action or inaction in
reliance upon the advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, any Beneficial Owner or authorized representative thereof, or any
other person believed by it in good faith to be competent to give such advice or information, (iv)
for the inability by a Holder or Beneficial Owner to benefit from any distribution, offering, right
or other benefit which is made available to holders of Deposited Securities but is not, under the
terms of the Deposit Agreement, made available to Holders of ADSs, (v) for any action or inaction
by the Proxy Bank, or (vi) for any consequential or punitive damages for any breach of the terms of
the Deposit Agreement.



35









 





     The Depositary, its controlling persons, its agents, any Custodian and the Company, its
controlling persons and its agents may rely and shall be protected in acting upon any written
notice, request or other document believed by it to be genuine and to have been signed or presented
by the proper party or parties.



     No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement.



     Section 5.3 Standard of Care. The Company and the Depositary assume no obligation and
shall not be subject to any liability under the Deposit Agreement or any ADRs to any Holder(s) or
Beneficial Owner(s), except that the Company and the Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement or the applicable ADRs without
negligence or bad faith.



     Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of their
respective controlling persons, or agents, shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of
the ADSs, which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of counsel) and liability
be furnished as often as may be required (and no Custodian shall be under any obligation whatsoever
with respect to such proceedings, the responsibility of the Custodian being solely to the
Depositary).



     The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
or the effect of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not incur any liability
for any failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company for distribution to
the Holders or for any inaccuracy of any translation thereof, for any investment risk associated
with acquiring an interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing any rights to
lapse upon the terms of the Deposit Agreement or for the failure or timeliness of any notice from
the Company.



     Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by written notice of resignation
delivered to the Company, such resignation to be effective on the earlier of (i) the sixtieth
(60th) day after delivery thereof to the Company (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) the appointment by the Company
of a successor depositary and its acceptance of such appointment as hereinafter provided.



     The Depositary may at any time be removed by the Company by written notice of such removal,
which removal shall be effective on the later of (i) the sixtieth (60th) day after
delivery



36









 







thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.



     In case at any time the Depositary acting hereunder shall resign or be removed, the Company
shall use its best efforts to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, the City of New York. Every successor
depositary shall be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable law), shall become
fully vested with all the rights, powers, duties and obligations of its predecessor (other than as
contemplated in Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due it
and on the written request of the Company shall, (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder (other than as contemplated
in Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and interest to
the Deposited Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and Holders thereof as
the successor may reasonably request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.



     Any corporation into or with which the Depositary may be merged or consolidated shall be the
successor of the Depositary without the execution or filing of any document or any further act.



     Section 5.5 The Custodian. The Depositary has initially appointed Citibank AG, Frankfurt
as Custodian for the purpose of the Deposit Agreement. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of the Depositary for
the Deposited Securities for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no
other Custodian has previously been appointed hereunder, the Depositary shall, after consultation
with the Company, promptly appoint a substitute custodian that is organized under the laws of
Germany. The Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it as Custodian with
respect to such Deposited Securities as the Depositary may request, to the Custodian designated by
the Depositary. Whenever the Depositary determines, in its discretion, that it is appropriate to
do so, it may appoint an additional entity to act as Custodian with respect to any Deposited
Securities, or discharge the Custodian with respect to any Deposited Securities and appoint a
substitute custodian, which shall thereafter be Custodian hereunder with respect to the Deposited
Securities. Immediately upon any such change, the Depositary shall give notice thereof in writing
to all Holders of ADSs, each other Custodian and the Company.



     Upon the appointment of any successor depositary, any Custodian then acting hereunder shall,
unless otherwise instructed by the Depositary, continue to be the Custodian of the Deposited
Securities without any further act or writing, and shall be subject to the direction of the
successor depositary. The successor depositary so appointed shall, nevertheless, on the




37










 






written request of any Custodian, execute and deliver to such Custodian all such instruments
as may be proper to give to such Custodian full and complete power and authority to act on the
direction of such successor depositary.




     Section 5.6 Notices and Reports. On or before the first date on which the Company gives
notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the English language
but otherwise in the form given or to be given to holders of Shares or other Deposited Securities.
The Company shall also furnish to the Custodian and the Depositary a summary, in English, of any
applicable provisions or proposed provisions of the Company’s Articles of Association and By-laws
that may be relevant or pertain to such notice of meeting or be the subject of a vote thereat.



     The Company will also transmit to the Depositary (a) an English language version of the other
notices, reports and communications which are made generally available by the Company to holders of
its Shares or other Deposited Securities and (b) the English-language versions of the Company’s
annual and semi-annual reports prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the Company and at the Company’s
expense, to provide copies thereof to all Holders or make such notices, reports and other
communications available to all Holders on a basis similar to that for holders of Shares or other
Deposited Securities or on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement.



     The Depositary will, at the expense of the Company, make available a copy of any such notices,
reports or communications issued by the Company and delivered to the Depositary for inspection by
the Holders of the ADSs at the Depositary’s Principal Office, at the office of the Custodian and at
any other designated transfer office.



     Section 5.7 Issuance of Additional Shares, ADSs, etc. The Company agrees that in the event
it or any of its Affiliates proposes (i) an issuance, sale or distribution of additional Shares,
(ii) an offering of rights to subscribe for Shares or other Deposited Securities, (iii) an issuance
of securities convertible into or exchangeable for Shares, (iv) an issuance of rights to subscribe
for securities convertible into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of Deposited
Securities, or solicitation of consents or proxies, relating to any reclassification of securities,
merger or consolidation or transfer of assets, or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the Deposited Securities, it
will obtain U.S. legal advice and take all steps necessary to ensure that the proposed transaction
does not violate the registration provisions of the Securities Act, or any other applicable laws
(including, without limitation, the Investment Company Act of 1940, as amended, the Exchange Act
and the securities laws of the States of the U.S.). In support of the foregoing, the Company will
furnish to the Depositary (a) a written opinion of U.S. counsel to the Company reasonably



38









 







satisfactory to the Depositary, stating whether such transaction
(1) requires a registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act and (b) an opinion of German counsel
stating that (1) making the transaction available to Holders and Beneficial Owners does not violate
the laws or regulations of Germany and (2) all requisite regulatory consents and approvals have
been obtained in Germany, provided, however, that no such opinion shall be required in the event of
an issuance of shares as a bonus, share split or similar event. If the filing of a registration
statement is required, the Depositary shall not have any obligation to proceed with the transaction
unless it shall have received evidence reasonably satisfactory to it that such registration
statement has been declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company will either (i)
register such transaction to the extent necessary, (ii) alter the terms of the transaction to avoid
the registration requirements of the Securities Act or (iii) direct the Depositary to take specific
measures, in each case as contemplated in the Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The Company agrees with the
Depositary that neither the Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a sale of Shares or
other Deposited Securities previously issued and reacquired by the Company or by any such
Affiliate, or (ii) issue additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for such securities, unless such
transaction and the securities issuable in such transaction do not violate the registration
provisions of the Securities Act, or any other applicable laws (including, without limitation, the
Investment Company Act of 1940, as amended, the Exchange Act and the securities laws of the States
of the U.S.).



     Notwithstanding anything else contained in the Deposit Agreement, nothing in the Deposit
Agreement shall be deemed to obligate the Company to file any registration statement in respect of
any proposed transaction.



     Section 5.8 Indemnification. The Depositary agrees to indemnify the Company and its
directors, officers, employees, agents and Affiliates against, and hold each of them harmless from,
any direct loss, liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) which may arise out of acts performed or
omitted by the Depositary under the terms hereof due to the negligence or bad faith of the
Depositary.



     The Company agrees to indemnify the Depositary, the Custodian and any of their respective
directors, officers, employees, agents and Affiliates against, and hold each of them harmless from,
any direct loss, liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) that may arise (a) out of or in connection
with any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs, ADSs, the Shares,
or other Deposited Securities, as the case may be, (b) out of or as a result of any offering
documents in respect thereof or (c) out of acts performed or omitted, including, but not limited
to, any delivery by the Depositary on behalf of the Company of information regarding the Company in
connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any Deposited Securities,
in any such case (i) by the Depositary, the



39









 







Custodian or any of their respective directors, officers, employees, agents and Affiliates, except
to the extent such loss, liability, tax, charge or expense is (a) due to the negligence or bad
faith of any of them, or (b) solely or exclusively arising out of a Pre-Release Transaction (as
defined in Section 5.10 hereof) of an ADS and that would not have arisen had such ADS not been the
subject of a Pre-Release Transaction (except in each case for loss, liability, tax or expense that
is a result of (i) a Pre-Release Transaction requested in writing by the Company and (ii) the bad
faith or willful misconduct of the Company in respect of a Pre-Release Transaction, or (ii) by the
Company or any of its directors, officers, employees, agents and Affiliates.



     The obligations set forth in this Section shall survive the termination of the Deposit
Agreement and the succession or substitution of any party hereto.



     Any person seeking indemnification 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 to seek indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the indemnifying person as to the
conduct of the defense of such action or claim that may give rise to an indemnity hereunder, which
defense shall be reasonable in the circumstances. No indemnified person shall compromise or settle
any action or claim that may give rise to an indemnity hereunder without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.



     Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the Beneficial
Owners, and persons depositing Shares or surrendering ADSs for cancellation and withdrawal of
Deposited Securities shall be required to pay to the Depositary the Depositary’s fees and related
charges identified as payable by them respectively in the Fee Schedule attached hereto as
Exhibit B. All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of fees and charges
payable by Holders and Beneficial Owners, only in the manner contemplated in Section 6.1. The
Depositary shall provide, without charge, a copy of its latest fee schedule to anyone upon request.



     The Company agrees to pay, reasonably promptly, to the Depositary such other fees and charges
and to reimburse the Depositary for such out-of-pocket expenses as the Depositary and the Company
may agree to in writing from time to time. Responsibility for payment of such charges may at any
time and from time to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses and fees or charges
to the Company once every three months in an itemized invoice. The charges and expenses of the
Custodian are for the sole account of the Depositary.



     The right of the Depositary to receive payment of fees, charges and expenses as provided above
shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation
or removal of such Depositary as described in Section 5.4, such right shall extend for



40









 







those fees, charges and expenses incurred prior to the effectiveness of such resignation or
removal.



     Section 5.10 Pre-Release Transactions. Subject to the further terms and provisions of this
Section 5.10, the Depositary, its Affiliates and their agents, on their own behalf, may own and
deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may, with the prior written consent of the Company, (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities pursuant to Section 2.7, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the “Applicant”) to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant under such
Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such Shares or ADSs in
its records and to hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized (marked-to-market daily) with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days’ notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty percent (30%) of the
ADSs outstanding (without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from time to time as it
deems appropriate.



     The Depositary may also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case-by-case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held
for the benefit of the Holders (other than the Applicant).



     Section 5.11 Restricted Securities Owners. The Company agrees to advise in writing each of
the persons or entities who, to the knowledge of the Company, holds Restricted Securities that such
Restricted Securities are ineligible for deposit hereunder (except under the circumstances
contemplated in Section 2.14) and, to the extent practicable, shall require each of such persons to
represent in writing that such person will not deposit Restricted Securities hereunder (except
under the circumstances contemplated in Section 2.14).



41









 





ARTICLE VI




AMENDMENT AND TERMINATION




     Section 6.1 Amendment/Supplement. Subject to the terms and conditions of this Section 6.1
and applicable law, the ADRs outstanding at any time, the provisions of the Deposit Agreement and
the form of ADR attached hereto and to be issued under the terms hereof may at any time and from
time to time be amended or supplemented by written agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or increase any fees
or charges (other than charges in connection with foreign exchange control regulations, and taxes
and other governmental charges, delivery and other such expenses), or which shall otherwise
materially prejudice any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding ADSs until the expiration of thirty (30) days after
notice of such amendment or supplement shall have been given to the Holders of outstanding ADSs.
Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in detail
the specific amendments effectuated thereby, and failure to describe the specific amendments in any
such notice shall not render such notice invalid, provided, however, that, in each
such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to
retrieve or receive the text of such amendment (i.e., upon retrieval from the Commission’s, the
Depositary’s or the Company’s website or upon request from the Depositary). The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be settled solely in electronic book-entry form and (ii) do not
in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes effective shall be deemed,
by continuing to hold such ADSs, to consent and agree to such amendment or supplement and to be
bound by the Deposit Agreement and the ADR, if applicable, as amended or supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to surrender such ADS and
receive therefor the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Notwithstanding the foregoing, if any governmental body
should adopt new laws, rules or regulations which would require an amendment of, or supplement to,
the Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and any ADRs at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement and any ADRs in such
circumstances may become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such laws, rules or
regulations.



42









 





     Section 6.2 Termination. The Depositary shall, at any time at the written direction of the
Company, terminate the Deposit Agreement by distributing notice of such termination to the Holders
of all ADSs then outstanding at least sixty (60) days prior to the date fixed in such notice for
such termination. If sixty (60) days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary, and, in either case,
a successor depositary shall not have been appointed and accepted its appointment as provided in
Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. The date so fixed for
termination of the Deposit Agreement in any termination notice so distributed by the Depositary to
the Holders of ADSs is referred to as the “Termination Date”. Until the Termination Date,
the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and
the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit
Agreement.



     If any ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform any further acts
under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms
and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell securities and other property received in respect of
Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of any securities or
other property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred by, the
Depositary, and all applicable taxes or governmental charges for the account of the Holders and
Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement),
and (iv) take such actions as may be required under applicable law in connection with its role as
Depositary under the Deposit Agreement.



     On and after the Termination Date, the Holders will, subject to the terms of the Deposit
Agreement and any applicable ADRs and upon surrender of their ADSs at the Principal Office of the
Depositary, upon the payment of the fees and charges of, and expenses incurred by, the Depositary
and all applicable taxes or governmental charges for the account of Holders and Beneficial Owners,
in each case upon the terms set forth in Section 5.9 of the Deposit Agreement, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities represented by such
ADS(s) (which may, as contemplated below, be the net cash proceeds from the sale of the Deposited
Securities).



     At any time after the Termination Date, the Depositary may sell the Deposited Securities then
held under the Deposit Agreement and shall after such sale hold un-invested the net proceeds of
such sale, together with any other cash then held by it under the Deposit Agreement, in an
un-segregated account and without liability for interest, for the pro — rata benefit of the Holders
whose ADSs have not theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement except (i) to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in



43









 







each case, the fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and Beneficial Owners, in
each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit Agreement. After the Termination
Date, the Company shall be discharged from all obligations under the Deposit Agreement, except for
its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The
obligations under the terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs
outstanding as of the Termination Date shall survive the Termination Date and shall be discharged
only when the applicable ADSs are presented by their Holders to the Depositary for cancellation
under the terms of the Deposit Agreement.



ARTICLE VII




MISCELLANEOUS




     Section 7.1 Counterparts. The Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such counterparts together shall
constitute one and the same agreement. Copies of the Deposit Agreement shall be maintained with
the Depositary and shall be open to inspection by any Holder during business hours.



     Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is for the exclusive
benefit of the parties hereto (and their successors) and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person, except to the extent specifically
set forth in the Deposit Agreement. Nothing in the Deposit Agreement shall be deemed to give rise
to a partnership or joint venture among the parties nor establish a fiduciary or similar
relationship among the parties. The parties hereto acknowledge and agree that (i) the Depositary
and its Affiliates may at any time have multiple banking relationships with the Company and its
Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company or the Holders or Beneficial Owners may have interests and
(iii) nothing contained in the Deposit Agreement shall (a) preclude the Depositary or any of its
Affiliates from engaging in such transactions or establishing or maintaining such relationships,
and (b) obligate the Depositary or any of its Affiliates to disclose such transactions or
relationships or to account for any profit made or payment received in such transactions or
relationships.



     Section 7.3 Severability. In case any one or more of the provisions contained in the
Deposit Agreement or in the ADRs should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.



44









 





     Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The Holders and
Beneficial Owners from time to time of ADSs issued hereunder shall be parties to the Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of any ADR evidencing
their ADSs by acceptance thereof or any beneficial interest therein.



     Section 7.5 Notices. Any and all notices to be given to the Company shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier,
addressed to QIMONDA AG, Attention: Company Secretary, Gustav-Heinemann Ring 212, D-81739
Munich, Germany, with a copy to the Company’s general counsel at the same address or to any other
address which the Company may specify in writing to the Depositary.



     Any and all notices to be given to the Depositary shall be deemed to have been duly given if
personally delivered or sent by air mail, air courier or cable, telex or facsimile transmission,
confirmed by letter personally delivered or sent by air mail or air courier, addressed to Citibank,
N.A., 388 Greenwich Street, New York, New York 10013, U.S.A., Attention: Depositary
Receipts Department, or to any other address which the Depositary may specify in writing to the
Company.



     Any and all notices to be given to any Holder shall be deemed to have been duly given if (a)
personally delivered or sent by mail addressed to such Holder at the address of such Holder as it
appears on the books of the Depositary or, if such Holder shall have filed with the Depositary a
request that notices intended for such Holder be mailed to some other address, at the address
specified in such request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of the Deposit Agreement, by means of
electronic messaging addressed for delivery to the e-mail address designated by the Holder for such
purpose. Notice to Holders shall be deemed to be notice to Beneficial Owners for all purposes of
the Deposit Agreement. Failure to notify a Holder or any defect in the notification to a Holder
shall not affect the sufficiency of notification to other Holders or to the Beneficial Owners of
ADSs held by such other Holders.



     Delivery of a notice sent by mail, air courier or cable, telex or facsimile transmission shall
be deemed to be effective at the time when a duly addressed letter containing the same (or a
confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service, without regard for the
actual receipt or time of actual receipt thereof by a Holder. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it from any Holder, the
Custodian, the Depositary, or the Company, notwithstanding that such cable, telex or facsimile
transmission shall not be subsequently confirmed by letter.



     Delivery of a notice by means of electronic messaging shall be deemed to be effective at the
time of the initiation of the transmission by the sender (as shown on the sender’s records),
notwithstanding that the intended recipient retrieves the message at a later date, fails to
retrieve such message, or fails to receive such notice on account of its failure to maintain the
designated e-mail address, its failure to designate a substitute e-mail address or for any other
reason.



45









 





     Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement and the ADRs shall be
interpreted in accordance with, and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, the laws of the State of New York without reference to the principles
of choice of law thereof. Notwithstanding anything contained in the Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, (x) the rights of holders of
Shares and of any other Deposited Securities and the obligations and duties of the Company in
respect of the holders of Shares and other Deposited Securities, as such, and (y) the authorization
and execution of the Deposit Agreement by the Company, shall be governed by the laws of Germany
(or, if applicable, such other laws as may govern the Deposited Securities).



     Except as set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall have jurisdiction
to hear and determine any suit, action or proceeding and to settle any dispute between them that
may arise out of or in connection with the Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Qimonda North America Corp. (the “Agent”) now
at 1730 North First Street, San Jose, California 95112 as its authorized agent to receive and
accept for and on its behalf, and on behalf of its properties, assets and revenues, service by mail
of any and all legal process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new agent in New York on
the terms and for the purposes of this Section 7.6 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Agent (whether or not the appointment of such Agent shall for any
reason prove to be ineffective or such Agent shall fail to accept or acknowledge such service),
with a copy mailed to the Company by registered or certified air mail, postage prepaid, to its
address provided in Section 7.5. The Company agrees that the failure of the Agent to give any
notice of such service to it shall not impair or affect in any way the validity of such service or
any judgment rendered in any action or proceeding based thereon.



     Notwithstanding the foregoing, the Depositary and the Company unconditionally agree that in
the event that a Holder or Beneficial Owner brings a suit, action or proceeding against (a) the
Company, (b) the Depositary in its capacity as Depositary under the Deposit Agreement or (c)
against both the Company and the Depositary, in any such case, in any state or federal court of the
United States, and the Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or proceeding, then the
Company and the Depositary may pursue such claim against each other in the state or federal court
in the United States in which such suit, action, or proceeding is pending and, for such purposes,
the Company and the Depositary irrevocably submit to the non-exclusive jurisdiction of such courts.
The Company agrees that service of process upon the Agent in the
manner set forth in the preceding paragraph shall be effective service upon it for any suit, action
or proceeding brought against it as described in this paragraph.



46









 





     The Company irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any actions, suits or
proceedings brought in any court as provided in this Section 7.6, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.



     The Company irrevocably and unconditionally waives, to the fullest extent permitted by law,
and agrees not to plead or claim, any right of immunity from legal action, suit or proceeding, from
setoff or counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the giving of any relief
or for the enforcement of any judgment, and consents to such relief and enforcement against it, its
assets and its revenues in any jurisdiction, in each case with respect to any matter arising out
of, or in connection with, the Deposit Agreement, any ADR or the Deposited Securities.



     No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement. The provisions of this Section 7.6 shall survive any termination of the Deposit
Agreement, in whole or in part.



     Section 7.7 Assignment. Subject to the provisions of Section 5.4, the Deposit Agreement
may not be assigned by either the Company or the Depositary.



     Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything in the Deposit
Agreement to the contrary, the withdrawal or delivery of Deposited Securities will not be suspended
by the Company or the Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to Form F-6 Registration Statement, as amended from time to time, under the Securities
Act.



     Section 7.9 Germany Law References. Any summary of German laws and regulations and of the
terms of the Company’s Articles of Association and By-laws set forth in the Deposit Agreement have
been provided by the Company solely for the convenience of Holders, Beneficial Owners and the
Depositary. While such summaries are believed by the Company to be accurate as of the date of the
Deposit Agreement, (i) they are summaries and as such may not include all aspects of the materials
summarized applicable to a Holder or Beneficial Owner, and (ii) these laws and regulations and the
Company’s Articles of Association and By-laws may change after the date of the Deposit Agreement.
Neither the Depositary nor the Company has any obligation under the terms of the Deposit Agreement
to update any such summaries.



     Section 7.10 Titles and References.



     (a) Deposit Agreement. All references in the Deposit Agreement to exhibits, articles,
sections, subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of the Deposit Agreement unless expressly provided



47









 







otherwise. The words “the Deposit Agreement”, “herein”, “hereof”, “hereby”, “hereunder”, and words of similar
import refer to the Deposit Agreement as a whole as in effect at the relevant time between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to any particular
subdivision unless expressly so limited. Pronouns in masculine, feminine and neuter gender shall
be construed to include any other gender, and words in the singular form shall be construed to
include the plural and vice versa unless the context otherwise requires. Titles to sections of the
Deposit Agreement are included for convenience only and shall be disregarded in construing the
language contained in the Deposit Agreement. References to “applicable laws and regulations” shall
refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities as in effect at the
relevant time of determination, unless otherwise required by law or regulation.



     (b) ADRs. All references in any ADR(s) to paragraphs, exhibits, articles, sections,
subsections, and other subdivisions refer to the paragraphs, exhibits, articles, sections,
subsections and other subdivisions of the ADR(s) in question unless expressly provided otherwise.
The words “the Receipt”, “the ADR”, “herein”, “hereof”, “hereby”, “hereunder”, and words of similar
import used in any ADR refer to the ADR as a whole and as in effect at the relevant time, and not
to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine and
neuter gender in any ADR shall be construed to include any other gender, and words in the singular
form shall be construed to include the plural and vice versa unless the context otherwise requires.
Titles to paragraphs of any ADR are included for convenience only and shall be disregarded in
construing the language contained in the ADR. References to “applicable laws and regulations”
shall refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities as in effect
at the relevant time of determination, unless otherwise required by law or regulation.



     IN WITNESS WHEREOF, QIMONDA AG and CITIBANK, N.A. have duly executed the Deposit Agreement as
of the day and year first above set forth and all Holders and Beneficial Owners shall become
parties hereto upon acceptance by them of ADSs issued in accordance with the terms hereof, or upon
acquisition of any beneficial interest therein.



	 	 	 	 	 
	 	QIMONDA AG

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CITIBANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




48










 







EXHIBIT A




[FORM OF ADR]




					
	 	 	 	 	 
	Number

                                        
	 	 	 	CUSIP NUMBER:                     






	 	 	 
	 

	 	American Depositary Shares (each

American Depositary Share

representing one fully paid

ordinary share)






AMERICAN DEPOSITARY RECEIPT



FOR


AMERICAN DEPOSITARY SHARES


representing


DEPOSITED ORDINARY SHARES


Of


QIMONDA AG


(Incorporated under the laws of Germany)



     CITIBANK, N.A., a national banking association organized and existing under the laws of the
United States of America, as depositary (the “Depositary”), hereby certifies that                      is
the owner of                      American Depositary Shares (hereinafter “ADS”), representing deposited
ordinary shares, without par value, including evidence of rights to receive such ordinary shares
(the “Shares”), of QIMONDA AG, a corporation incorporated under the laws of Germany (the
“Company”). As of the date of the Deposit Agreement (as hereinafter defined), each ADS represents
one Share deposited under the Deposit Agreement with the Custodian, which at the date of execution
of the Deposit Agreement is Citibank AG, Frankfurt (the “Custodian”). The ADS(s)-to-Share(s) ratio
is subject to amendment as provided in Articles IV and VI of the Deposit Agreement. The
Depositary’s Principal Office is located at 388 Greenwich Street, New York, New York 10013, U.S.A.



     (1) The Deposit Agreement. This American Depositary Receipt is one of an issue of
American Depositary Receipts (“ADRs”), all issued and to be issued upon the terms and conditions
set forth in the Deposit Agreement, dated as of [date], 2006 (as amended and supplemented from time
to time, the “Deposit Agreement”), by and among the Company, the



A-1









 







Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.
The Deposit Agreement sets forth the rights and obligations of Holders and Beneficial Owners of
ADSs and the rights and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are herein called “Deposited
Securities”). Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and with the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and applicable ADR(s), 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 the
Deposit Agreement and the applicable ADR(s), 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 the Deposit Agreement and the applicable
ADR(s), the taking of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.



     The statements made on the face and reverse of this ADR are summaries of certain provisions of
the Deposit Agreement and the Company’s Articles of Association and By-laws (as in effect on the
date of the signing of the Deposit Agreement) and are qualified by and subject to the detailed
provisions of the Deposit Agreement and the Company’s Articles of Association and By-laws, to which
reference is hereby made. All capitalized terms used herein which are not otherwise defined herein
shall have the meanings ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held
through DTC must rely on the procedures of DTC and the DTC Participants to exercise and be entitled
to any rights attributable to such ADSs.



     (2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the ADSs evidenced
hereby) shall be entitled to Delivery (at the Custodian’s designated office) of the Deposited
Securities at the time represented by the ADSs evidenced hereby upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the Holder) has duly
Delivered ADSs to the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, this ADR Delivered to the Depositary
for such purpose has been properly endorsed in blank or is accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard securities industry
practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause the Deposited
Securities being withdrawn to be Delivered to or upon the written order of the person(s) designated
in such order, and (iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of,
and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this ADR evidencing the surrendered ADSs, of the Deposit Agreement, of
the Company’s Articles of Association and By-laws, and of any



A-2









 







applicable laws and the rules of
Clearstream Banking AG (“Clearstream”), and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.



     Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel
the ADSs Delivered to it (and, if applicable, the ADRs evidencing the ADSs so Delivered), (ii)
shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books
maintained for such purpose, and (iii) shall direct the Custodian to Deliver (without unreasonable
delay) at the Custodian’s designated office the Deposited Securities represented by the ADSs so
canceled together with any certificate or other document of title for the Deposited Securities, or
evidence of the electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the Depositary for such
purpose, subject however, in each case, to the terms and conditions of the Deposit Agreement, of
this ADR evidencing the ADSs so cancelled, of the Company’s Articles of Association and By-laws, of
any applicable laws and the rules of Clearstream, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.



     The Depositary shall not accept for surrender ADSs representing less than one Share. In the
case of Delivery to it of ADSs representing a number other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the Depositary, either (i) return
to the person surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so surrendered
and remit the proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of shares or rights, which
are at the time held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder
so surrendering ADSs represented by this ADR, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held by the Custodian in respect of the Deposited Securities represented by
such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.



     (3) Transfer, Combination and Split-Up of ADRs. The Registrar shall, reasonably
promptly, register the transfer of this ADR (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall, reasonably promptly, (x) cancel this ADR and
execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by this ADR when
canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office



A-3









 







for the purpose of
effecting a transfer thereof, (ii) this surrendered ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) this surrendered ADR has been duly stamped (if
required by the laws of the State of New York, of the United States or of Germany,
and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.



     The Registrar shall register, without unreasonable delay, the split-up or combination of this
ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs requested, but in
the aggregate not exceeding the number of ADSs evidenced by this ADR cancelled by the Depositary,
(y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the
order of the Holder thereof, if each of the following conditions has been satisfied: (i) this ADR
has been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or combination hereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and government charges (as are set forth in Section 5.9 of, and Exhibit B
to, the Deposit Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.



     (4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, the registration of issuance, transfer, split-up, combination or surrender,
of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the depositor of Shares or
presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Section 5.9 and Exhibit B of
the Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature or any other matters contemplated in Section 3.1 of the
Deposit Agreement, and (iii) compliance with (A) any laws or governmental regulations relating to
the execution and delivery of ADRs or ADSs or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary or the Company may establish consistent with the
provisions of this ADR, if applicable, the Deposit Agreement and applicable law.



     The issuance of ADSs against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of
transfer of ADSs in particular instances may be refused, or the registration of transfers of ADSs
generally may be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action is



A-4









 







deemed necessary
or advisable by the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law or regulation, any government or governmental body or commission
or any securities exchange on which the Shares or ADSs are listed, or under any provision of the
Deposit Agreement or this ADR, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company
or for any other reason, subject in all cases to paragraph (24). Notwithstanding any
provision of the Deposit Agreement or this ADR to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities associated therewith at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders’ meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended from time to time).



     (5) Compliance With Information Requests. Notwithstanding any other provision of the
Deposit Agreement or this ADR, each Holder and Beneficial Owner of the ADSs represented hereby
agrees to comply with requests from the Company pursuant to applicable German law, the rules and
requirements of the New York Stock Exchange, and of any other stock exchange on which Shares or
ADSs are, or will be, registered, traded or listed, or the Company’s Articles of Association and
By-laws, which are made to provide information, inter alia, as to the capacity in which such Holder
or Beneficial Owner owns ADSs (and Shares, as the case may be) and regarding the identity of any
other person(s) interested in such ADSs and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such request.



     (6) Ownership Restrictions. Notwithstanding any provision of this ADR or of the
Deposit Agreement, the Company may restrict transfers of the Shares where such transfer might
result in ownership of Shares exceeding limits imposed by applicable law or the Company’s Articles
of Association and By-laws. The Company may also restrict, in such manner as it deems appropriate,
transfers of ADSs where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The Company may, in
its sole discretion but subject to applicable law and the Company’s Articles of Association and
By-laws, instruct the Depositary to take action with respect to the ownership interest of any
Holder or Beneficial Owner in excess of the limits set forth in the preceding sentence, including
but not limited to, the imposition of restrictions on the transfer of ADSs, the removal or
limitation of voting rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by applicable law and the
Company’s Articles of Association and By-laws.



     (7) Liability of Holder for Taxes and Other Charges. Any tax or other governmental
charge payable by the Custodian or by the Depositary with respect to any ADR or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to the



A-5









 







Depositary. The
Company, the Custodian and/or Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale proceeds in payment of
such taxes (including applicable interest and penalties) or other governmental charges, the Holder
and the Beneficial Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up or
combination of ADRs and (subject to paragraph (24) hereof) the withdrawal of Deposited Securities
until payment in full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of their
agents, officers, employees and Affiliates for, and hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon) arising from any tax
benefit obtained for such Holder and/or Beneficial Owner. The obligations of Holders and
Beneficial Owners of ADSs under Section 3.2 of the Deposit Agreement shall survive any transfer of
ADSs, any surrender of ADSs and withdrawal of Deposited Securities, or the termination of the
Deposit Agreement.



     (8) Representations and Warranties of Depositors. Each person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i) such Shares and the
certificates therefor are duly authorized, validly issued, fully paid, non-assessable and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with respect to such
Shares have been validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities (except
as contemplated in Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. If any such representations or warranties are false
in any way, the Company and the Depositary shall be authorized, at the cost and expense of the
person depositing Shares, to take any and all actions necessary to correct the consequences
thereof.



     (9) Filing Proofs, Certificates and Other Information. Any person presenting Shares
for deposit, and any Holder and any Beneficial Owner may be required, and every Holder and
Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such
proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership of ADSs and
Deposited Securities, compliance with applicable laws, the terms of the Deposit Agreement or the
ADR(s) evidencing the ADSs and the provisions of, or governing, the Deposited Securities, to
execute such certifications and to make such representations and warranties, and to provide such
other information and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the Company or of the Shares
Registrar) as the Depositary or the Custodian may reasonably deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent with



A-6









 







its obligations
under the Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer of any ADR or ADS or
the distribution or sale of any dividend or distribution of rights or of the proceeds thereof or,
to the extent not limited by paragraph (24), the delivery of any Deposited Securities until such
proof or other information is filed or such certifications are executed, or such representations
are made, or such other information or documentation provided, in each case to the Depositary’s,
the Registrar’s and the Company’s satisfaction.



     (10) Charges of Depositary. The Depositary shall charge the following fees:




	 	(i)	 	Issuance Fee: to any person depositing Shares or to
whom ADSs are issued upon the deposit of Shares, a fee not in excess of U.S.
$5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the
Deposit Agreement; and
	 
	 	(ii)	 	Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so surrendered.





     In addition, Holders, Beneficial Owners, persons depositing Shares for deposit and persons
surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be
responsible for the following charges:




	 	(a)	 	taxes (including applicable interest and penalties) and other
governmental charges;
	 
	 	(b)	 	such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited Securities to
or from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
	 
	 	(c)	 	such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
	 
	 	(d)	 	the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
	 
	 	(e)	 	such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs and
ADRs; and




A-7









 






	 	(f)	 	the fees and expenses incurred by the Depositary, the Custodian
or any nominee in connection with the delivery or servicing of Deposited
Securities.





     Any other charges and expenses of the Depositary under the Deposit Agreement will be paid by
the Company upon agreement between the Depositary and the Company. All fees and charges may, at
any time and from time to time, be changed by agreement between the Depositary and Company but, in
the case of fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian are for the sole
account of the Depositary.



     (11) Title to ADRs. It is a condition of this ADR, and every successive Holder of
this ADR by accepting or holding the same consents and agrees, that title to this ADR (and to each
ADS evidenced hereby) shall be transferable upon the same terms as a certificated security under
the laws of the State of New York, provided that, in the case of Certificated ADSs, such ADR has
been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the Holder of this ADR
(that is, the person in whose name this ADR is registered on the books of the Depositary) as the
absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this ADR to any holder of
this ADR or any Beneficial Owner unless such holder is the Holder of this ADR registered on the
books of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner’s representative is the Holder registered on the books of the Depositary.



     (12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented hereby)
shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for
any purpose against the Depositary or the Company unless this ADR has been (i) dated, (ii) signed
by the manual or facsimile signature of a duly-authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly-authorized signatory of the Registrar,
and (iv) registered in the books maintained by the Registrar for the registration of issuances and
transfers of ADRs. An ADR bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary, notwithstanding the
fact that such signatory has ceased to be so authorized prior to the delivery of such ADR by the
Depositary.



     (13) Available Information; Reports; Inspection of Transfer Books. The Company is
subject to the periodic reporting requirements of the Exchange Act and accordingly files certain
information with the Commission. These reports and documents can be retrieved from the
Commission’s website (www.sec.gov) and can be inspected and copied at the public reference
facilities maintained by the Commission located (as of the date of the Deposit Agreement) at 100 F
Street, N.E., Washington D.C. 20549. The Depositary shall make available



A-8









 







during normal business
hours on any Business Day for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the Company which are both
(a) received by the Depositary, the Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.



     The Registrar shall keep books for the registration of ADSs which at all reasonable times
shall be open for inspection by the Company and by the Holders of such ADSs, provided that such
inspection shall not be, to the Registrar’s knowledge, for the purpose of communicating with
Holders of such ADSs in the interest of a business or object other than the business of the Company
or other than a matter related to the Deposit Agreement or the ADSs.



     The Registrar may close the transfer books with respect to the ADSs, at any time or from time
to time, when deemed necessary or advisable by it in good faith in connection with the performance
of its duties hereunder, or at the reasonable written request of the Company subject, in all cases,
to paragraph (24).


Dated:




	 	 	 	 	 	 	 	 	 	 	 
	CITIBANK, N.A.

Transfer Agent and Registrar	 	 	 	CITIBANK, N.A.

as Depositary	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 
	 	 	 	 

Authorized Signatory
	 	 






     The address of the Principal Office of the Depositary is 388 Greenwich Street, New York, New
York 10013, U.S.A.




A-9









 







[FORM OF REVERSE OF ADR]




SUMMARY OF CERTAIN ADDITIONAL PROVISIONS




OF THE DEPOSIT AGREEMENT




     (14) Dividends and Distributions in Cash, Shares, etc. Whenever the Depositary
receives confirmation from the Custodian of the receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of any Deposited
Securities or of any other entitlements held in respect of Deposited Securities under the terms of
the Deposit Agreement, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can in the judgment of the Depositary (upon the terms of Section 4.8
of the Deposit Agreement) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (upon the terms of Section 4.8 of the Deposit Agreement), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement, and
(iii) distribute promptly the amount thus received (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of
the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed without attributing to
any Holder a fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs then outstanding at the
time of the next distribution. If the Company, the Custodian or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental charges, the
amount distributed to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof by the Company
shall be forwarded by the Company to the Depositary upon request.



     If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or their respective
nominees. Upon receipt of confirmation of such deposit from the Custodian, the Depositary shall,
subject to and in accordance with the Deposit Agreement, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement and either (i) the Depositary shall,
subject to Section 5.9 of the Deposit Agreement, distribute to the Holders as of the ADS Record
Date in proportion to the number of ADSs held as of the ADS Record Date, additional ADSs, which
represent in aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of the Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding



A-10









 







after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering fractional ADSs, the Depositary
shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms set forth in Section 4.1 of the Deposit
Agreement.



     In the event that the Depositary determines that any distribution in property (including
Shares) is subject to any tax or other governmental charges which the Depositary is obligated to
withhold, or, if the Company in the fulfillment of its obligations under Section 5.7 of the Deposit
Agreement, has furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose of all or a portion
of such property (including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary and practicable, and
the Depositary shall distribute the net proceeds of any such sale (after deduction of (a) taxes and
(b) fees and charges of, and the expenses incurred by, the Depositary) to Holders entitled thereto
upon the terms of Section 4.1 of the Deposit Agreement. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions of the Deposit
Agreement.



     Upon timely receipt of a notice indicating that the Company wishes such elective distribution
to be made available to Holders of ADSs upon the terms described in the Deposit Agreement, the
Company and the Depositary shall determine whether such distribution is lawful and reasonably
practicable to make such elective distribution available to the Holders of ADS. If so, the
Depositary shall, subject to the terms and conditions of the Deposit Agreement, establish an ADS
Record Date according to paragraph (16) and establish procedures to enable the Holder hereof to
elect to receive the proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the case of a distribution
in cash. If the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon the terms described in
the Deposit Agreement. If such elective distribution is not reasonably practicable or if the
Depositary did not receive satisfactory documentation set forth in the Deposit Agreement, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in Germany in respect of the Shares for which no election is made, either
(x) cash upon the terms described in Section 4.1 of the Deposit Agreement or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in Shares (rather than
ADSs). There can be no assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of Shares.



A-11









 





     Upon timely receipt by the Depositary of a notice indicating that the Company wishes rights to
subscribe for additional Shares to be made available to Holders of ADSs, the Depositary upon
consultation with the Company, shall determine, whether it is lawful and reasonably practicable to
make such rights available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7 of the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such conditions are not
satisfied, the Depositary shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 5.9 of the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders
to exercise the rights (upon payment of the subscription price and of the applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon
the valid exercise of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs). If (i) the Company does not timely request the Depositary to make the rights
available to Holders or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation required by the terms of Section 5.7 of the
Deposit Agreement or determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, in
a riskless principal capacity, at such place and upon such terms (including public and private
sale) as it may deem practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to make any rights available to Holders upon the terms described in Section 4.4(a) of the
Deposit Agreement or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary nor the Company shall not be
responsible for (i) any failure to determine that it may be lawful or practicable to make such
rights available to Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale or exercise, or (iii) the content of any
materials forwarded to the ADS Holders on behalf of the Company in connection with the rights
distribution.



     Notwithstanding anything herein or in the Deposit Agreement to the contrary, if registration
(under the Securities Act or any other applicable law) of the rights or the securities to which any
rights relate may be required in order for the Company to offer such rights or such securities to
Holders and to sell the securities represented by such rights, the Depositary will not distribute
such rights to the Holders (i) unless and until a registration statement under the Securities Act
(or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes
the Depositary opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed (any such opinion
required of German counsel may consist of an opinion of in-house counsel to the Company qualified
in the applicable jurisdiction provided on the Company’s letterhead), in



A-12









 







each case satisfactory to
the Depositary, to the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the provisions of the
Securities Act or any other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of
all or a portion of such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.



     There can be no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to exercise rights on the same terms and conditions as the holders of Shares or be
able to exercise such rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Shares or other securities
to be acquired upon the exercise of such rights.



     Upon receipt of a notice indicating that the Company wishes property other than cash, Shares
or rights to purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record, as of the ADS Record
Date, in proportion to the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the Depositary, and (ii) net
of any taxes withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including public or private sale) as
the Depositary may deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the distribution.



     If the conditions above are not satisfied, the Depositary shall sell or cause such property to
be sold in a public or private sale, at such place or places and upon such terms as it may deem
practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and
(ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of
the ADS Record Date upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property for the account of the
Holders in any way it deems reasonably practicable under the circumstances.



A-13









 





     (15) Redemption. Upon timely receipt of notice from the Company that it intends to
exercise its right of redemption in respect of any of the Deposited Securities, and a satisfactory
opinion of counsel, and upon determining that such proposed redemption is practicable, the
Depositary shall (to the extent practicable) provide to each Holder a notice setting forth the
Company’s intention to exercise the redemption rights and any other particulars set forth in the
Company’s notice to the Depositary. Upon receipt of confirmation that the redemption has taken
place and that funds representing the redemption price have been received, the Depositary shall
convert, transfer, distribute the proceeds (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon
delivery of such ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per ADS
shall be the dollar equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities represented
by ADSs (subject to the terms of Section 4.8 of the Deposit Agreement and the applicable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.



     (16) Fixing of ADS Record Date. Whenever the Depositary shall receive notice of the
fixing of a record date by the Company for the determination of holders of Deposited Securities
entitled to receive any distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares that are represented
by each ADS, or whenever the Depositary shall receive notice of any meeting of, or solicitation of
consents or proxies of, holders of Shares or other Deposited Securities, or whenever the Depositary
shall find it necessary or convenient in connection with the giving of any notice, solicitation of
any consent or any other matter, the Depositary shall, after consultation with the Company (if
practicable), fix a record date (“ADS Record Date”) for the determination of the Holders of
ADSs who shall be entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law and the terms and
conditions of this ADR and the Deposit Agreement, only the Holders of ADSs at the close of business
in New York on such ADS Record Date shall be entitled to receive such distributions, to give such
instructions, to receive such notice or solicitation, or otherwise take action.



     (17) Voting of Deposited Securities. As soon as practicable after receipt from the
Company of notice of any meeting at which the holders of Deposited Securities are entitled to vote,
or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary
shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the
Company in writing in a timely manner (the Depositary having no obligation to take any further
action if the request shall not have been received by the Depositary at least thirty (30) days
prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of



A-14









 







meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the
ADS Record Date (i) will be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company’s Articles of Association and By-laws and the provisions of or governing
Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to
the Deposited Securities represented by such Holder’s ADSs and (ii) may be deemed, if the Company
has appointed a Proxy Bank as set forth below, to have instructed the Depositary to give a proxy to
the Proxy Bank (as defined in the Deposit Agreement) to vote the Deposited Securities represented
by their ADSs in accordance with the recommendations of the Proxy Bank, and (c) a brief statement
as to the manner in which such voting instructions may be given.


Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the
extent not prohibited by law, regulations or applicable stock exchange requirements and after
consultation with the Company, in lieu of distribution of the materials provided to the Depositary
in connection with any meeting of, or solicitation of consents or proxies from, holders of
Deposited Securities, distribute to the Holders a notice that provides Holders with a means to
retrieve such materials or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the materials).



Voting instructions may be given only in respect of a number of ADSs representing an integral
number of Deposited Securities. Upon the timely receipt of voting instructions from a Holder of
ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary,
the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, Company’s Articles of Association and By-laws and the
provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting
instructions.




     Notwithstanding anything to the contrary in this Deposit Agreement, if the Company appoints a
proxy bank in accordance with Sections 128 and 135 of the German Stock Corporation Act
(Aktiengesetz) for the Deposited Securities (the “Proxy Bank”), the Company shall give
notice thereof to the Depositary and the Depositary shall give notice thereof to the Holders of
ADSs in the materials distributed thereunder to Holders of ADSs as of the ADS Record Date. Holders
of ADSs who do not timely give voting instructions to the Depositary in the manner specified by the
Depositary shall be deemed to have instructed the Depositary to give a proxy to the Proxy Bank to
vote the Deposited Securities represented by such Holders’ ADSs, in accordance with the
recommendations of the Proxy Bank pursuant to Section 128(2) of the German Stock Corporation Act
(Aktiengesetz) provided that (i) the Depositary and the Company have provided timely notice to
Holders as of the applicable ADS Record Date that the Company has appointed a Proxy Bank for the
Deposited Securities, and (ii) the taking of such actions does not violate any U.S. or German laws,
or any terms of the Company’s Articles of Association or Bylaws. The Company shall have the right
to appoint and terminate the Proxy Bank in its sole and absolute discretion, and in the event of
termination or resignation of the Proxy Bank, the



A-15









 







Company shall have the right to appoint another
Proxy Bank in its sole and absolute discretion, but shall give notice thereof to the Depositary.



     Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion
as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right
to vote, or in any way make use of for purposes of establishing a quorum or otherwise, the
Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting
instructions timely received from Holders or as otherwise contemplated herein. If the Depositary
timely receives voting instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary
will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to vote in favor of the items set forth in such instructions. Deposited
Securities represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted, except as contemplated herein. Notwithstanding
anything else contained herein, the Depositary shall, if so requested in
writing by the Company in respect of any meeting of shareholders, represent all Deposited
Securities (whether or not voting instructions have been received in respect of such Deposited
Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at
such meeting. Notwithstanding anything else contained in the Deposit Agreement or this ADR, the
Depositary shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the taking of such
action would violate U.S. laws. The Company agrees to take any and all actions reasonably
necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any
actions requested to be taken if so requested by the Depositary. There can be no assurance that
Holders generally or any Holder in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the Depositary in a timely
manner.



     (18) Changes Affecting Deposited Securities. Upon any change in nominal or par value,
split-up, cancellation, consolidation or any other reclassification of Deposited Securities, or
upon any recapitalization, reorganization, merger, consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by the Depositary or the
Custodian in exchange for, or in conversion of or replacement of or otherwise in respect of, such
Deposited Securities shall, to the extent permitted by law, be treated as new Deposited Securities
under the Deposit Agreement, and the ADRs shall, subject to the provisions of the Deposit Agreement
and applicable law, evidence ADSs representing the right to receive such additional securities. In
giving effect to such change, split-up, cancellation, consolidation or other reclassification of
Deposited Securities, recapitalization, reorganization, merger, consolidation or sale of assets,
the Depositary may, with the Company’s approval, and shall, if the Company shall so request,
subject to the terms of the Deposit Agreement and receipt of satisfactory documentation
contemplated by the Deposit Agreement, (i) issue and deliver additional ADSs as in the case of a
stock dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend
the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of the
ADSs, (v) call for the surrender of outstanding ADRs to be



A-16









 







exchanged for new ADRs, specifically
describing the newly received Deposited Securities and (v) take such other actions as are
appropriate to reflect the transaction with respect to the ADSs. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company’s approval, and shall if the Company requests, subject to receipt
of satisfactory legal documentation contemplated in the Deposit Agreement, sell such securities at
public or private sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes) for the account of the Holders otherwise entitled to such securities
upon an averaged or other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.1 of the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful or feasible to make
such securities available to Holders in general or any Holder in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities.



     (19) Exoneration. Neither the Depositary nor the Company shall be obligated to do or
perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of the Deposit Agreement and this ADR,
by reason of any provision of any present or future law or regulation of the United States, Germany
or any other country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Company’s Articles of Association and By-laws or any provision
of or governing any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement or in the Company’s Articles of
Association and By-laws or provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized representative
thereof, or any other person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available to Holders of ADSs,
(v) for any action or inaction by the Proxy Bank, (vi) for any consequential or punitive damages
for any breach of the terms of the Deposit Agreement. The Depositary, its controlling persons, its
agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No disclaimer of liability
under the Securities Act is intended by any provision of the Deposit Agreement or this ADR.



A-17









 





     (20) Standard of Care. The Company and the Depositary assume no obligation and shall
not be subject to any liability under the Deposit Agreement or this ADR to any Holder(s) or
Beneficial Owner(s), except that the Company and Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement and this ADR without negligence or bad
faith. The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
or the effect of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not incur any liability
for any failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company for distribution to
the Holders or for any inaccuracy of any translation thereof, for any investment risk associated
with acquiring an interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing any rights to
lapse upon the terms of the Deposit Agreement or for the failure or timeliness of any notice from
the Company.



     (21) Resignation and Removal of the Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary under the Deposit Agreement
by written notice of resignation delivered to the Company, such resignation to be effective on
the earlier of (i) the sixtieth (60th) day after delivery thereof to the Company
(whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2), or
(ii) the appointment of a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the later of (i) the sixtieth
(60th) day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit Agreement. In case at
any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best
efforts to appoint a successor depositary, which shall be a bank or trust company having an office
in the Borough of Manhattan, the City of New York. Every successor depositary shall be required by
the Company to execute and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary, without any further
act or deed (except as required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in Sections 5.8 and
5.9 of the Deposit Agreement). The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and deliver all right,
title and interest to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADSs and such other information relating to ADSs
and Holders thereof as the successor may reasonably request. Any such successor depositary shall
promptly provide notice of its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.



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     (22) Amendment/Supplement. Subject to the terms and conditions of this paragraph 22,
the Deposit Agreement and applicable law, this ADR and any provisions of the Deposit Agreement may
at any time and from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or supplement which shall
impose or increase any fees or charges (other than the charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and other such expenses),
or which shall otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs until the expiration
of thirty (30) days after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or any ADR shall not
need to describe in detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid, provided,
however, that, in each such case, the notice given to the Holders identifies a means for
Holders and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon
retrieval from the Commission’s, the Depositary’s or the Company’s website or upon request from the
Depositary). The parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered
on Form F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges to be borne by
Holders, shall be deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS(s), to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and this ADR as amended or
supplemented thereby. In no event shall any amendment or supplement impair the right of the Holder
to surrender such ADS and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would require an amendment of,
or supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and this ADR at any time in accordance
with such changed laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required for compliance with
such laws, or rules or regulations.



     (23) Termination. The Depositary shall, at any time at the written direction of the
Company, terminate the Deposit Agreement by distributing notice of such termination to the Holders
of all ADSs then outstanding at least sixty (60) days prior to the date fixed in such notice for
such termination. If sixty (60) days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary, and, in either case,
a successor depositary shall not have been appointed and accepted its appointment as provided in
Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by



A-19









 







distributing notice of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. The date so fixed for
termination of the Deposit Agreement in any termination notice so distributed by the Depositary to
the Holders of ADSs is referred to as the “Termination Date”. Until the Termination Date,
the Depositary shall continue to perform all of its obligations under the Deposit Agreement, and
the Holders and Beneficial Owners will be entitled to all of their rights under the Deposit
Agreement. If any ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform any further acts
under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms
and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell securities and other property received in respect of
Deposited Securities, (iii) deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of any securities or
other property, in exchange for ADSs surrendered to the Depositary (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred by, the
Depositary, and all applicable taxes or governmental charges for the account of the Holders and
Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the Deposit Agreement),
and (iv) take such actions as may be required under applicable law in connection with its role as
Depositary under the Deposit Agreement. At any time after the Termination Date, the Depositary may
sell the Deposited Securities then held under the Deposit Agreement and shall after such sale hold
un-invested the net proceeds of such sale, together with any other cash then held by it under the
Deposit Agreement, in an un-segregated account and without
liability for interest, for the pro - rata benefit of the Holders whose ADSs have not
theretofore been surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement except (i) to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental charges for the
account of the Holders and Beneficial Owners, in each case upon the terms set forth in Section 5.9
of the Deposit Agreement), and (ii) as may be required at law in connection with the termination of
the Deposit Agreement. After the Termination Date, the Company shall be discharged from all
obligations under the Deposit Agreement, except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the terms of the Deposit
Agreement of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date shall
survive the Termination Date and shall be discharged only when the applicable ADSs are presented by
their Holders to the Depositary for cancellation under the terms of the Deposit Agreement.



     (24) Compliance with U.S. Securities Laws. Notwithstanding any provisions in this ADR
or the Deposit Agreement to the contrary, the withdrawal or delivery of Deposited Securities will
not be suspended by the Company or the Depositary except as would be permitted by Instruction
I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.



     (25) Certain Rights of the Depositary; Limitations. Subject to the further terms and
provisions of this paragraph (25), the Depositary, its Affiliates and their agents, on their own



A-20









 







behalf, may own and deal in any class of securities of the Company and its Affiliates and in ADSs.
The Depositary may issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such evidence of rights
shall consist of written blanket or specific guarantees of ownership of Shares. In its capacity as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may, with the prior written consent of the Company, (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt of
ADSs for withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit Agreement,
including ADSs which were issued under (i) above but for which Shares may not have been received
(each such transaction a “Pre-Release Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or entity (the
“Applicant”) to whom ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the
Depositary as owner of such Shares or ADSs in its records and to hold such Shares or ADSs in trust
for the Depositary until such Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or ADSs and (z) agrees to any additional restrictions or requirements that the Depositary
deems appropriate, (b) at all times fully collateralized (market-to-market daily) with cash, U.S.
government securities or such other collateral as the Depositary deems appropriate, (c) terminable
by the Depositary on not more than five (5) business days’ notice and (d) subject to such further
indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set limits with respect to the
number of ADSs and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than the Applicant).




A-21










 







(ASSIGNMENT AND TRANSFER SIGNATURE LINES)



FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
                                         whose taxpayer identification number is                                         and whose
address including postal zip code is                     , the within ADS and all rights thereunder,
hereby irrevocably constituting and appointing                                          attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution in the premises.



	 	 	 	 	 
	 	 	 
	Dated: 	Name:  	 	 
	 	 	By: 	 
	 	 	Title:  	 	 
	 
	 	NOTICE: The signature of the Holder to this

assignment must correspond with the name as written

upon the face of the within instrument in every

particular, without alteration or enlargement or any

change whatsoever.

	 
	 	If the endorsement be executed by an attorney,

executor, administrator, trustee or guardian, the

person executing the endorsement must give his/her

full title in such capacity and proper evidence of

authority to act in such capacity, if not on file

with the Depositary, must be forwarded with this ADR.

	 
	                    
                    
                    

SIGNATURE GUARANTEED	 	 
	 	
All endorsements or assignments of ADRs must be

guaranteed by a member of a Medallion Signature

Program approved by the Securities Transfer

Association, Inc.

	 
	 	Legends	 



[The ADRs issued in respect of Partial Entitlement American Depositary Shares shall bear the
following legend on the face of the ADR: “This ADR evidences ADSs representing ‘partial
entitlement’ ordinary shares of QIMONDA AG and as such do not entitle the holders thereof to
the same per-share entitlement as other ordinary shares (which are ‘full entitlement’
ordinary shares) issued and outstanding at such time. The ADSs represented by this ADR
shall entitle holders to distributions and entitlements identical to other ADSs when the
ordinary shares represented by such ADSs become ‘full entitlement’ ordinary shares.”]




A-22









 








EXHIBIT B




FEE SCHEDULE




DEPOSITARY FEES AND RELATED CHARGES



All capitalized terms used but not otherwise defined herein shall have the meaning given to such
terms in the Deposit Agreement.




	 	 	 
	I. 
	Depositary Fees







     The Company, the Holders, the Beneficial Owners and the persons depositing Shares or
surrendering ADSs for cancellation agree to pay the following fees of the Depositary:



	 	 	 	 	 	 
	Service	 	Rate	 	By Whom Paid
	(1) 
	Issuance of ADSs
upon deposit of
Shares.

	 	Up to U.S. $5.00 per
100 ADSs (or fraction
thereof) issued.
	 	Person depositing
Shares or person
receiving ADSs.
	 
	 	 	 	 
	(2) 
	Delivery of
Deposited Securities
against surrender of
ADSs.

	 	Up to U.S. $5.00 per
100 ADSs (or fraction
thereof) surrendered.
	 	Person surrendering
ADSs for purpose of
withdrawal of
Deposited Securities
or person to whom
Deposited Securities
are delivered.






	 	 	 
	II. 
	Charges








     Holders, Beneficial Owners, persons depositing Shares for deposit and persons surrendering
ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible
for the following charges:




	(i)	 	taxes (including applicable interest and penalties) and other governmental charges;
	 
	(ii)	 	such registration fees as may from time to time be in effect for the registration of Shares
or other Deposited Securities on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
	 
	(iii)	 	such cable, telex and facsimile transmission and delivery expenses as are expressly provided
in the Deposit Agreement to be at the expense of the person depositing or withdrawing Shares
or Holders and Beneficial Owners of ADSs;
	 
	(iv)	 	the expenses and charges incurred by the Depositary in the conversion of foreign currency;




B-1









 






	(v)	 	such fees and expenses as are incurred by the Depositary in connection with compliance with
exchange control regulations and other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
	 
	(vi)	 	the fees and expenses incurred by the Depositary, the Custodian or any nominee in connection
with the servicing or delivery of Deposited Securities.






B-2