**Exhibit 2.2****FRESENIUS MEDICAL CARE AG & CO. KGaA****AND****THE BANK OF NEW YORK****As Depositary****AND****OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES****Amended and Restated Deposit Agreement****(For Preference Bearer Shares)****Dated as of February 26, 2007**

 
**TABLE OF CONTENTS**          ARTICLE 1. DEFINITIONS  2      SECTION 1.01 American Depositary Shares  2      SECTION 1.02 Commission  3      SECTION 1.03 Company  3      SECTION 1.04 Custodian  3      SECTION 1.05 Deliver; Surrender  3      SECTION 1.06 Deposit Agreement  3      SECTION 1.07 Depositary; Corporate Trust Office  3      SECTION 1.08 Deposited Securities  3      SECTION 1.09 Dollars  4      SECTION 1.10 Foreign Registrar  4      SECTION 1.11 Owner  4      SECTION 1.12 Receipts  4      SECTION 1.13 Registrar  4      SECTION 1.14 Restricted Securities  4      SECTION 1.15 Securities Act of 1933  4      SECTION 1.16 Shares  4     ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY,    TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES  5      SECTION 2.01 Form of Receipts; Registration and    Transferability of American Depositary Shares  5      SECTION 2.02 Deposit of Shares  5      SECTION 2.03 Delivery of American Depositary Shares  6      SECTION 2.04 Registration of Transfer of American    Depositary Shares; Combination and Split-up of Receipts;    Interchange of Certificated and Uncertificated American    Depositary Shares  6      SECTION 2.05 Surrender of American Depositary Shares and    Withdrawal of Deposited Securities  7      SECTION 2.06 Limitations on Delivery, Transfer and    Surrender of American Depositary Shares  7      SECTION 2.07 Lost Receipts, etc.   8      SECTION 2.08 Cancellation and Destruction of Surrendered    Receipts  8      SECTION 2.09 Pre-Release of American Depositary Shares  8      SECTION 2.10 DTC Direct Registration System and Profile    Modification System  9     ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF    AMERICAN DEPOSITARY SHARES  9      SECTION 3.01 Filing Proofs, Certificates and Other    Information  9      SECTION 3.02 Liability of Owner for Taxes  9      SECTION 3.03 Warranties on Deposit of Shares  9     ARTICLE 4. THE DEPOSITED SECURITIES  10      SECTION 4.01 Cash Distributions  10      SECTION 4.02 Distributions Other Than Cash, Shares or Rights  10      SECTION 4.03 Distributions in Shares  11      SECTION 4.04 Rights  11      SECTION 4.05 Conversion of Foreign Currency  12      SECTION 4.06 Fixing of Record Date  13      SECTION 4.07 Voting of Deposited Securities  13      SECTION 4.08 Changes Affecting Deposited Securities  14      SECTION 4.09 Reports  14      SECTION 4.10 Lists of Owners  15      SECTION 4.11 Withholding  15     ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY  15      SECTION 5.01 Maintenance of Office and Transfer Books by    the Depositary  15      SECTION 5.02 Prevention or Delay in Performance by the    Depositary or the Company  15      SECTION 5.03 Obligations of the Depositary, the Custodian    and the Company  16 
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           SECTION 5.04 Resignation and Removal of the Depositary  16      SECTION 5.05 The Custodians  17      SECTION 5.06 Notices and Reports  17      SECTION 5.07 Distribution of Additional Shares, Rights,    etc.   17      SECTION 5.08 Indemnification  18      SECTION 5.09 Charges of Depositary  18      SECTION 5.10 Retention of Depositary Documents  19      SECTION 5.11 Exclusivity  19      SECTION 5.12 List of Restricted Securities Owners  19     ARTICLE 6. AMENDMENT AND TERMINATION  19      SECTION 6.01 Amendment  19      SECTION 6.02 Termination  19     ARTICLE 7. MISCELLANEOUS  20      SECTION 7.01 Counterparts  20      SECTION 7.02 No Third Party Beneficiaries  20      SECTION 7.03 Severability  20      SECTION 7.04 Owners and Holders as Parties; Binding Effect  20      SECTION 7.05 Notices  20      SECTION 7.06 Submission to Jurisdiction; Appointment of    Agent for Service of Process; Jury Trial Waiver  21      SECTION 7.07 Waiver of Immunities  22      SECTION 7.08 Governing Law  22 
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**AMENDED AND RESTATED DEPOSIT AGREEMENT**     AMENDED AND RESTATED DEPOSIT AGREEMENT dated as ofFebruary 26, 2007, among Fresenius Medical Care AG &Co. KGaA, a partnership limited by shares(*Kommanditgesellschaft auf Aktien*) organized under thelaws of the Federal Republic of Germany and registered with thecommercial register of the local court (*Amtsgericht*) ofHof an der Saale, Germany under the registration number HRB 4019(herein called the Company), THE BANK OF NEW YORK, a New Yorkbanking corporation (herein called the Depositary), and allOwners and holders from time to time of American DepositaryShares issued hereunder.**W I T N E S S E T H:**     WHEREAS, the Company, JPMorgan Chase Bank, N.A. and all holdersfrom time to time of American Depositary Receipts entered into adeposit agreement for preference bearer shares dated as ofFebruary 10, 2006 (the “Old Deposit Agreement”).     WHEREAS, THE Company has removed JPMorgan Chase Bank, N.A. asdepositary under the Old Deposit Agreement pursuant toSection 13 of the Old Deposit Agreement and has appointedthe Depositary as successor depositary under the Old DepositAgreement and the Depositary has accepted that appointment;     WHEREAS, the Company desires to provide, as hereinafter setforth in this Amended and Restated Deposit Agreement, for thedeposit of Shares (as hereinafter defined) of the Company fromtime to time with the Depositary or with the Custodian (ashereinafter defined) as agent of the Depositary for the purposesset forth in this Amended and Restated Deposit Agreement, forthe creation of American Depositary Shares representing theShares so deposited and for the execution and delivery ofAmerican Depositary Receipts evidencing the American DepositaryShares; and     WHEREAS, the American Depositary Receipts are to besubstantially in the form of Exhibit A annexed hereto, withappropriate insertions, modifications and omissions, ashereinafter provided in this Amended and Restated DepositAgreement;     NOW, THEREFORE, in consideration of the premises, it is agreedby and between the parties hereto that the Old Deposit Agreementis hereby amended and restated as follows:**ARTICLE 1. DEFINITIONS**     The following definitions shall for all purposes, unlessotherwise clearly indicated, apply to the respective terms usedin this Deposit Agreement:**SECTION 1.01 American Depositary Shares.**     The term “American Depositary Shares” shall mean thesecurities created under this Deposit Agreement representingrights with respect to the Deposited Securities. AmericanDepositary Shares may be certificated securities evidenced byReceipts or uncertificated securities but, unless otherwiserequested by a person entitled to delivery of AmericanDepositary Shares or an Owner thereof, shall be uncertificatedsecurities. The form of Receipt annexed as Exhibit A tothis Deposit Agreement shall be the prospectus required underthe Securities Act of 1933 for sales of both certificated anduncertificated American Depositary Shares. Except for thoseprovisions of this Deposit Agreement that refer specifically toReceipts, all the provisions of this Deposit Agreement shallapply to both certificated and uncertificated AmericanDepositary Shares. Each American Depositary Share shallrepresent the number of Shares specified in Exhibit A tothis Deposit Agreement, until there shall occur a distributionupon Deposited Securities covered by Section 4.03 or achange in Deposited Securities covered by Section 4.08 withrespect to which additional American Depositary Shares are notdelivered, and thereafter American Depositary Shares shallrepresent the amount of Shares or Deposited Securities specifiedin such Sections.
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**SECTION 1.02 Commission.**     The term “Commission” shall mean the Securities andExchange Commission of the United States or any successorgovernmental agency in the United States.**SECTION 1.03 Company.**     The term “Company” shall mean Fresenius Medical CareAG & Co. KGaA, a partnership limited by shares(*Kommanditgesellschaft auf Aktien*), organized under thelaws of Federal Republic of Germany, and its successors.**SECTION 1.04 Custodian.**     The term “Custodian” shall mean the principalFrankfurt office of BHF Bank AG, as agent of the Depositary forthe purposes of this Deposit Agreement, and any other firm orcorporation which may hereafter be appointed by the Depositarypursuant to the terms of Section 5.05, as substitute oradditional custodian or custodians hereunder, as the contextshall require and shall also mean all of them collectively.**SECTION 1.05 Deliver; Surrender.**     (a)   The term “deliver”, or its nounform, when used with respect to Shares or Deposited Securities,shall mean effecting one or more entries in an account oraccounts maintained by an institution authorized underapplicable law to effect transfers of such securities in thename of the person entitled to that delivery.     (b)   The term “deliver”, or its nounform, when used with respect to American Depositary Shares,shall mean (i) if requested by the person entitled to thatdelivery, one or more book-entry transfers of AmericanDepositary Shares to an account or accounts at The DepositoryTrust Company (“DTC”) designated by the personentitled to that delivery, (ii) if requested by the personentitled to that delivery, delivery at the Corporate TrustOffice of the Depositary to the person entitled to that deliveryof one or more Receipts evidencing American Depositary Sharesregistered in the name requested by that person or(iii) registration of American Depositary Shares notevidenced by a Receipt on the books of the Depositary in thename requested by the person entitled to that delivery andwhereupon mailing will be made to that person of a statementconfirming that registration.     (c)   The term “surrender”, when usedwith respect to American Depositary Shares, shall mean(i) one or more book-entry transfers of American DepositaryShares to the DTC account of the Depositary, (ii) surrenderto the Depositary at its Corporate Trust Office of one or moreReceipts evidencing American Depositary Shares or(iii) delivery to the Depositary at its Corporate TrustOffice of an instruction to surrender American Depositary Sharesnot evidenced by a Receipt.**SECTION 1.06 Deposit Agreement.**     The term “Deposit Agreement” shall mean this amendedand restated Agreement, as the same may be amended from time totime in accordance with the provisions hereof.**SECTION 1.07 Depositary; Corporate TrustOffice.**     The term “Depositary” shall mean The Bank of New York,a New York banking corporation, and any successor as depositaryhereunder. The term “Corporate Trust Office”, whenused with respect to the Depositary, shall mean the office ofthe Depositary which at the date of this Deposit Agreement is101 Barclay Street, New York, New York 10286.**SECTION 1.08 Deposited Securities.**     The term “Deposited Securities” as of any time shallmean Shares at such time deposited or deemed to be depositedunder this Deposit Agreement, including without limitationShares that have not been successfully withdrawn or deliveredupon surrender of American Depositary Shares or Receipts, andany and all other
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securities, property and cash received by the Depositary or theCustodian in respect thereof and at such time held hereunder,subject as to cash to the provisions of Section 4.05.**SECTION 1.09 Dollars.**     The term “Dollars” shall mean United States dollars.**SECTION 1.10 Foreign Registrar.**     The term “Foreign Registrar” shall mean the entitythat presently carries out the duties of registrar for theShares or any successor as registrar for the Shares and anyother agent of the Company for the transfer and registration ofShares, including without limitation any securities depositoryfor the Shares.**SECTION 1.11 Owner.**     The term “Owner” shall mean the person in whose nameAmerican Depositary Shares are registered on the books of theDepositary maintained for such purpose.**SECTION 1.12 Receipts.**     The term “Receipts” shall mean the American DepositaryReceipts issued hereunder evidencing certificated AmericanDepositary Shares, as the same may be amended from time to timein accordance with the provisions hereof.**SECTION 1.13 Registrar.**     The term “Registrar” shall mean any bank or trustcompany having an office in the Borough of Manhattan, The Cityof New York, which shall be appointed to register AmericanDepositary Shares and transfers of American Depositary Shares asherein provided.**SECTION 1.14 Restricted Securities.**     The term “Restricted Securities” shall mean Shares, orAmerican Depositary Shares representing Shares, that areacquired directly or indirectly from the Company or itsaffiliates (as defined in Rule 144 under the Securities Actof 1933) in a transaction or chain of transactions not involvingany public offering, or which are subject to resale limitationsunder Regulation D under the Securities Act of 1933 orboth, or which are held by an officer, director (or personsperforming similar functions) or other affiliate of the Company,or which would require registration under the Securities Act of1933 in connection with the offer and sale thereof in the UnitedStates, or which are subject to other restrictions on sale ordeposit under the laws of the United States or the FederalRepublic of Germany, or under a shareholder agreement or theArticles of Association (*Satzung*) of the Company.**SECTION 1.15 Securities Act of 1933.**     The term “Securities Act of 1933” shall mean theUnited States Securities Act of 1933, as from time to timeamended.**SECTION 1.16 Shares.**     The term “Shares” shall mean preference bearer sharesof the Company, heretofore validly issued and outstanding andfully paid, nonassessable and free of any pre-emptive rights ofthe holders of outstanding Shares or hereafter validly issuedand outstanding and fully paid, nonassessable and free of anypre-emptive rights of the holders of outstanding Shares orinterim certificates representing such Shares; provided,however, that, if there shall occur any change in nominalvalue, a split-up or consolidation or any other reclassificationor, upon the occurrence of an event described inSection 4.08, an exchange or conversion in respect of theShares of the Company, the term “Shares” shallthereafter also mean the successor securities resulting fromsuch change in nominal value, split-up or consolidation or suchother reclassification or such exchange or conversion.
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**ARTICLE 2. ****FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND    SURRENDER OF AMERICAN DEPOSITARY SHARES****SECTION 2.01 ****Form of Receipts; Registration and Transferability of    American Depositary Shares.**     Definitive Receipts shall be substantially in the form set forthin Exhibit A annexed to this Deposit Agreement, withappropriate insertions, modifications and omissions, ashereinafter provided. No Receipt shall be entitled to anybenefits under this Deposit Agreement or be valid or obligatoryfor any purpose, unless such Receipt shall have been executed bythe Depositary by the manual signature of a duly authorizedsignatory of the Depositary; provided, however,that such signature may be a facsimile if a Registrar for theReceipts shall have been appointed and such Receipts arecountersigned by the manual signature of a duly authorizedofficer of the Registrar. The Depositary shall maintain books onwhich (i) each Receipt so executed and delivered ashereinafter provided and the transfer of each such Receipt shallbe registered and (ii) all American Depositary Sharesdelivered as hereinafter provided and all registrations oftransfer of American Depositary Shares shall be registered.Receipts bearing the manual or facsimile signature of a dulyauthorized signatory of the Depositary who was at any time aproper signatory of the Depositary shall bind the Depositary,notwithstanding that such signatory has ceased to hold suchoffice prior to the execution and delivery of such Receipts bythe Registrar or did not hold such office on the date ofissuance of such Receipts.     The Receipts may be endorsed with or have incorporated in thetext thereof such legends or recitals or modifications notinconsistent with the provisions of this Deposit Agreement asmay be required by the Depositary or required to comply with anyapplicable law or regulations thereunder or with the rules andregulations of any securities exchange upon which AmericanDepositary Shares may be listed or to conform with any usagewith respect thereto, or to indicate any special limitations orrestrictions to which any particular Receipts are subject byreason of the date of issuance of the underlying DepositedSecurities or otherwise.     American Depositary Shares evidenced by a Receipt, when properlyendorsed or accompanied by proper instruments of transfer, shallbe transferable as certificated registered securities under thelaws of New York. American Depositary Shares not evidenced byReceipts shall be transferable as uncertificated registeredsecurities under the laws of New York. The Depositary,notwithstanding any notice to the contrary, may treat the Ownerof American Depositary Shares as the absolute owner thereof forthe purpose of determining the person entitled to distributionof dividends or other distributions or to any notice providedfor in this Deposit Agreement and for all other purposes, andneither the Depositary nor the Company shall have any obligationor be subject to any liability under this Deposit Agreement toany holder of a Receipt unless such holder is the Owner thereof.**SECTION 2.02 Deposit of Shares.**     Subject to the terms and conditions of this Deposit Agreement,Shares or evidence of rights to receive Shares may be depositedby delivery thereof to any Custodian hereunder, accompanied byany appropriate instruments or instructions for transfer, orendorsement, in form satisfactory to the Custodian, togetherwith all such certifications as may be required by theDepositary or the Custodian in accordance with the provisions ofthis Deposit Agreement, and, if the Depositary requires,together with a written order directing the Depositary todeliver to, or upon the written order of, the person or personsstated in such order, the number of American Depositary Sharesrepresenting such deposit.     No Share shall be accepted for deposit unless accompanied byevidence satisfactory to the Depositary that any necessaryapproval has been granted by any governmental body in theFederal Republic of Germany which is then performing thefunction of the regulation of currency exchange. If required bythe Depositary, Shares presented for deposit at any time,whether or not the transfer books of the Company or the ForeignRegistrar, if applicable, are closed, shall also be accompaniedby an agreement or assignment, or other instrument satisfactoryto the Depositary, which will provide for the prompt transfer tothe Custodian of any dividend, or right to subscribe foradditional Shares or to receive other property which any personin whose name the Shares are or have been recorded maythereafter receive upon or in respect of such deposited Shares,or in lieu thereof, such agreement of indemnity or otheragreement as shall be satisfactory to the Depositary.
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     At the request and risk and expense of any person proposing todeposit Shares, and for the account of such person, if theShares to be deposited are certificated, the Depositary mayreceive such certificates for Shares to be deposited, togetherwith the other instruments herein specified, for the purpose offorwarding such Share certificates to the Custodian for deposithereunder.     Upon each delivery to a Custodian of a certificate orcertificates for Shares to be deposited hereunder, together withthe other documents specified above, such Custodian shall, assoon as transfer and recordation can be accomplished, presentsuch certificate or certificates to the Company or the ForeignRegistrar, if applicable, for transfer and recordation of theShares being deposited in the name of the Depositary or itsnominee or such Custodian or its nominee.     Deposited Securities shall be held by the Depositary or by aCustodian for the account and to the order of the Depositary orat such other place or places as the Depositary shall determine.**SECTION 2.03 Delivery of American DepositaryShares.**     Upon receipt by any Custodian of any deposit pursuant toSection 2.02 hereunder, together with the other documentsrequired as specified above, such Custodian shall notify theDepositary of such deposit and the person or persons to whom orupon whose written order American Depositary Shares aredeliverable in respect thereof and the number of AmericanDepositary Shares to be so delivered. Such notification shall bemade by letter or, at the request, risk and expense of theperson making the deposit, by cable, telex or facsimiletransmission (and in addition, if the transfer books of theCompany or the Foreign Registrar, if applicable, are open, theDepositary may in its sole discretion require a properacknowledgment or other evidence from the Company or the ForeignRegistrar that any Deposited Securities have been recorded uponthe books of the Company or the Foreign Registrar, ifapplicable, in the name of the Depositary or its nominee or suchCustodian or its nominee). Upon receiving such notice from suchCustodian, or upon the receipt of Shares or evidence of theright to receive Shares by the Depositary, the Depositary,subject to the terms and conditions of this Deposit Agreement,shall deliver, to or upon the order of the person or personsentitled thereto, the number of American Depositary Sharesissuable in respect of that deposit, but only upon payment tothe Depositary of the fees and expenses of the Depositary forthe delivery of such American Depositary Shares as provided inSection 5.09, and of all taxes and governmental charges andfees payable in connection with such deposit and the transfer ofthe Deposited Securities.**SECTION 2.04 ****Registration of Transfer of American Depositary Shares;    Combination and Split-up of Receipts; Interchange of    Certificated and Uncertificated American Depositary    Shares.**     The Depositary, subject to the terms and conditions of thisDeposit Agreement, shall register transfers of AmericanDepositary Shares on its transfer books from time to time, uponany surrender of American Depositary Shares, by the Owner inperson or by a duly authorized attorney, properly endorsed oraccompanied by proper instruments of transfer or pursuant to aproper instruction (including, for the avoidance of doubt,instructions through DRS and Profile as provided inSection 2.10), as the case may be, and duly stamped as maybe required by the laws of the State of New York and of theUnited States of America. Thereupon the Depositary shall deliverthe number of American Depositary Shares surrendered to or uponthe order of the person entitled thereto.     The Depositary, subject to the terms and conditions of thisDeposit Agreement, shall upon surrender of a Receipt or Receiptsfor the purpose of effecting a split-up or combination of suchReceipt or Receipts, execute and deliver a new Receipt orReceipts for any authorized number of American Depositary Sharesrequested, evidencing the same aggregate number of AmericanDepositary Shares as the Receipt or Receipts surrendered.     The Depositary, upon surrender of a Receipt for the purpose ofexchanging for uncertificated American Depositary Shares, shallcancel that Receipt and send the Owner a statement confirmingthat the Owner is the owner of uncertificated AmericanDepositary Shares. The Depositary, upon receipt of a properinstruction (including, for the avoidance of doubt, instructionsthrough DRS and Profile as provided in Section 2.10) fromthe Owner of uncertificated American Depositary Shares for thepurpose of exchanging for certificated American DepositaryShares, shall execute and deliver to the Owner a Receiptevidencing those American Depositary Shares.
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     The Depositary, may appoint one or more co-transfer agents forthe purpose of effecting registration of transfers of AmericanDepositary Shares and combinations and split-ups of Receipts atdesignated transfer offices on behalf of the Depositary. Incarrying out its functions, a co-transfer agent may requireevidence of authority and compliance with applicable laws andother requirements by Owners or persons entitled to AmericanDepositary Shares and will be entitled to protection andindemnity to the same extent as the Depositary.**SECTION 2.05 Surrender of American Depositary Sharesand Withdrawal of Deposited Securities.**     Upon surrender at the Corporate Trust Office of the Depositaryof American Depositary Shares for the purpose of withdrawal ofthe Deposited Securities represented thereby, and upon paymentof the fee of the Depositary for the surrender of AmericanDepositary Shares as provided in Section 5.09 and paymentof all taxes and governmental charges payable in connection withsuch surrender and withdrawal of the Deposited Securities, andsubject to the terms and conditions of this Deposit Agreement,the Owner of those American Depositary Shares shall be entitledto delivery, to him or as instructed, of the amount of DepositedSecurities at the time represented by those American DepositaryShares. Delivery of such Deposited Securities may be made by thedelivery of (a) certificates or account transfer in thename of such Owner or as ordered by him, with proper endorsementor accompanied by proper instruments or instructions of transferto such Owner or pursuant to proper delivery instructions and(b) any other securities, property and cash to which suchOwner is then entitled in respect of those American DepositaryShares to such Owner or such person or persons as instructed.Such delivery shall be made, as hereinafter provided, withoutunreasonable delay.     A Receipt surrendered for such purposes may be required by theDepositary to be properly endorsed in blank or accompanied byproper instruments of transfer in blank. The Depositary mayrequire the surrendering Owner to execute and deliver to theDepositary a written order directing the Depositary to cause theDeposited Securities being withdrawn to be delivered to or uponthe written order of a person or persons designated in suchorder in the manner provided in the preceding paragraph.Thereupon the Depositary shall direct the Custodian to deliverat the office of such Custodian, subject to Sections 2.06,3.01 and 3.02 and to the other terms and conditions of thisDeposit Agreement, to or upon the written order of the person orpersons designated in the order delivered to the Depositary asabove provided, the amount of Deposited Securities representedby the surrendered American Depositary Shares, except that theDepositary may make delivery to such person or persons at theCorporate Trust Office of the Depositary of any dividends ordistributions with respect to the Deposited Securitiesrepresented by those American Depositary Shares, or of anyproceeds of sale of any dividends, distributions or rights,which may at the time be held by the Depositary.     At the request, risk and expense of any Owner so surrenderingAmerican Depositary Shares, and for the account of such Owner,the Depositary shall direct the Custodian to forward any cash orother property (other than rights) comprising, and forward acertificate or certificates, if applicable, and other properdocuments of title for, the Deposited Securities represented bythe American Depositary Shares (evidenced by such Receipt, ifapplicable) to the Depositary for delivery at the CorporateTrust Office of the Depositary. Such direction shall be given byletter or, at the request, risk and expense of such Owner, bycable, telex or facsimile transmission.**SECTION 2.06 Limitations on Delivery, Transfer andSurrender of American Depositary Shares.**     As a condition precedent to the delivery, registration oftransfer, or surrender of any American Depositary Shares orsplit-up or combination of any Receipt or withdrawal of anyDeposited Securities, the Depositary, Custodian or Registrar mayrequire payment from the depositor of Shares or the presenter ofthe Receipt or instruction for registration of transfer orsurrender of American Depositary Shares not evidenced by aReceipt of a sum sufficient to reimburse it for any tax or othergovernmental charge and any stock transfer or registration feewith respect thereto (including any such tax or charge and feewith respect to Shares being deposited or withdrawn) and paymentof any applicable fees as herein provided, may require theproduction of proof satisfactory to it as to the identity andgenuineness of any signature and may also require compliancewith any regulations the Depositary may establish consistentwith the provisions of this Deposit Agreement, including,without limitation, this Section 2.06.
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     The delivery of American Depositary Shares against deposit ofShares generally or against deposit of particular Shares may besuspended, or the transfer of American Depositary Shares inparticular instances may be refused, or the registration oftransfer of outstanding American Depositary Shares generally maybe suspended, during any period when the transfer books of theDepositary are closed, or if any such action is deemed necessaryor advisable by the Depositary or the Company at any time orfrom time to time because of any requirement of law or of anygovernment or governmental body or commission, or under anyprovision of this Deposit Agreement, or for any other reason,subject to the provisions of the following sentence.Notwithstanding anything to the contrary in this DepositAgreement, the surrender of outstanding American DepositaryShares and withdrawal of Deposited Securities may not besuspended subject only to (i) temporary delays caused byclosing the transfer books of the Depositary or the Company orthe Foreign Registrar, if applicable, or the deposit of Sharesin connection with voting at a shareholders’ meeting, orthe payment of dividends, (ii) the payment of fees, taxesand similar charges, and (iii) compliance with any U.S. orforeign laws or governmental regulations relating to theAmerican Depositary Shares or to the withdrawal of the DepositedSecurities. Without limitation of the foregoing, the Depositaryshall not knowingly accept for deposit under this DepositAgreement any Shares which would be required to be registeredunder the provisions of the Securities Act of 1933, unless aregistration statement is in effect as to such Shares or suchShares are exempt from registration thereunder.**SECTION 2.07 Lost Receipts, etc.**     In case any Receipt shall be mutilated, destroyed, lost orstolen, the Depositary shall execute and deliver a new Receiptof like tenor in exchange and substitution for such mutilatedReceipt upon cancellation thereof, or in lieu of and insubstitution for such destroyed, lost or stolen Receipt. Beforethe Depositary shall execute and deliver a new Receipt insubstitution for a destroyed, lost or stolen Receipt, the Ownerthereof shall have (a) filed with the Depositary (i) arequest for such execution and delivery before the Depositaryhas notice that the Receipt has been acquired by a bona fidepurchaser and (ii) a sufficient indemnity bond and(b) satisfied any other reasonable requirements imposed bythe Depositary.**SECTION 2.08 Cancellation and Destruction ofSurrendered Receipts.**     All Receipts surrendered to the Depositary shall be cancelled bythe Depositary. The Depositary is authorized to destroy Receiptsso cancelled.**SECTION 2.09 Pre-Release of American DepositaryShares.**     Notwithstanding Section 2.03 hereof, the Depositary maydeliver American Depositary Shares prior to the receipt ofShares pursuant to Section 2.02 (a“Pre-Release”). The Depositary may, pursuant toSection 2.05, deliver Shares upon the surrender of AmericanDepositary Shares that have been Pre-Released, whether or notsuch cancellation is prior to the termination of suchPre-Release or the Depositary knows that such AmericanDepositary Shares have been Pre-Released. The Depositary mayreceive American Depositary Shares in lieu of Shares insatisfaction of a Pre-Release. Each Pre-Release will be(a) preceded or accompanied by a written representationfrom the person to whom American Depositary Shares or Shares areto be delivered, that such person, or its customer, owns theShares or American Depositary Shares to be remitted, as the casemay be, (b) at all times fully collateralized with cash orsuch other collateral as the Depositary deems appropriate (butsuch collateral shall not constitute “DepositedSecurities”),, (c) terminable by the Depositary on notmore than five (5) business days notice, and(d) subject to such further indemnities and creditregulations as the Depositary deems appropriate. The number ofAmerican Depositary Shares which are outstanding at any time asa result of Pre-Release will not normally exceed thirty percent(30%) of the Shares deposited hereunder; provided, however, thatthe Depositary reserves the right to change or disregard suchlimit from time to time as it deems appropriate.     The Depositary may retain for its own account any compensationreceived by it in connection with the foregoing.
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**SECTION 2.10 DTC Direct Registration System andProfile Modification System.**     (a)   Notwithstanding the provisions ofSection 2.04, the parties acknowledge that the DirectRegistration System (“DRS”) and Profile ModificationSystem (“Profile”) shall apply to uncertificatedAmerican Depositary Shares upon acceptance thereof to DRS byDTC. DRS is the system administered by DTC pursuant to which theDepositary may register the ownership of uncertificated AmericanDepositary Shares, which ownership shall be evidenced byperiodic statements issued by the Depositary to the Ownersentitled thereto. Profile is a required feature of DRS whichallows a DTC participant, claiming to act on behalf of an Owner,to direct the Depositary to register a transfer of thoseAmerican Depositary Shares to DTC or its nominee and to deliverthose American Depositary Shares to the DTC account of that DTCparticipant without receipt by the Depositary of priorauthorization from the Owner to register such transfer.     (b)   In connection with and in accordance withthe arrangements and procedures relating to DRS/ Profile, theparties understand that the Depositary will not verify,determine or otherwise ascertain that the DTC participant whichis claiming to be acting on behalf of an Owner in requestingregistration of transfer and delivery described in subsection(a) has the actual authority to act on behalf of the Owner(notwithstanding any requirements under the Uniform CommercialCode). For the avoidance of doubt, the provisions ofSections 5.03 and 5.08 shall apply to the matters arisingfrom the use of the DRS. The parties agree that theDepositary’s reliance on and compliance with instructionsreceived by the Depositary through the DRS/ Profile System andin accordance with this Deposit Agreement, shall not constitutenegligence or bad faith on the part of the Depositary.**ARTICLE 3. ****CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN    DEPOSITARY SHARES****SECTION 3.01 Filing Proofs, Certificates and OtherInformation.**     Any person presenting Shares for deposit or any Owner or holdermay be required from time to time to file with the Depositary orthe Custodian such proof of citizenship or residence, exchangecontrol approval, or such information relating to theregistration on the books of the Company or the ForeignRegistrar, if applicable, to execute such certificates and tomake such representations and warranties, as the Depositary maydeem necessary or proper. The Depositary may withhold thedelivery or registration of transfer of American DepositaryShares or the distribution of any dividend or sale ordistribution of rights or of the proceeds thereof or thedelivery of any Deposited Securities until such proof or otherinformation is filed or such certificates are executed or suchrepresentations and warranties made.**SECTION 3.02 Liability of Owner for Taxes.**     If any tax or other governmental charge shall become payable bythe Custodian or the Depositary with respect to any AmericanDepositary Shares or any Deposited Securities represented by anyAmerican Depositary Shares, such tax or other governmentalcharge shall be payable by the Owner of such American DepositaryShares to the Depositary. The Depositary may refuse to registerany transfer of those American Depositary Shares or anywithdrawal of Deposited Securities represented by those AmericanDepositary Shares until such payment is made, and may withholdany dividends or other distributions, or may sell for theaccount of the Owner thereof any part or all of the DepositedSecurities represented by those American Depositary Shares, andmay apply such dividends or other distributions or the proceedsof any such sale in payment of such tax or other governmentalcharge and the Owner of such American Depositary Shares shallremain liable for any deficiency.**SECTION 3.03 Warranties on Deposit of Shares.**     Every person depositing Shares under this Deposit Agreementshall be deemed thereby to represent and warrant that suchShares and each certificate therefor, if applicable, are validlyissued, fully paid, nonassessable and free of any preemptiverights of the holders of outstanding Shares and that the personmaking such deposit is duly authorized so to do. Every suchperson shall also be deemed to represent that the deposit ofsuch Shares and the sale of American Depositary Sharesrepresenting such Shares by that person are not restricted underthe
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Securities Act of 1933. Such representations and warrantiesshall survive the deposit of Shares and delivery of AmericanDepositary Shares.**SECTION 3.04 Disclosure of Interests**     Each Owner of American Depositary Shares and all persons owningbeneficial interests in American Depositary Shares agree tocomply with all applicable provisions of German law and theCompany’s Articles of Association regarding thenotification of such person’s interest in the Shares, whichprovisions at the date of the Deposit Agreement includeSections 21 and 22 of the Securities Trading Act*(Wertpapierhandelsgesetz).*At the date of this DepositAgreement, (i) the statutory notification obligations ofthe Securities Trading Act apply to anyone whose holding, eitherdirectly or by way of imputation pursuant to the provisions ofSection 22 of the Securities Trading Act, of voting rightsin the Company reaches or exceeds 5%, 10%, 25%, 50% or 75% or,after having reached or exceeded any such threshold, falls belowthat threshold. Effective as of January 20, 2007, therelevant thresholds will be 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50%and 75% and the notification obligations will also apply tooption agreements (excluding the 3% threshold). Each beneficialowner of American Depositary Shares acknowledges that failure toprovide on a timely basis any required notification of aninterest in Shares may result in withholding of certain rights,including voting and dividend rights, in respect of the Sharesin which such beneficial owner of American Depositary Shares hasan interest. In connection therewith, the Company reserves theright to instruct Owners to surrender their American DepositaryShares for the purpose of the withdrawal of the DepositedSecurities so as to permit the Company to deal directly with theOwner thereof as an owner of Shares. The Depositary agrees tocooperate with the Company in its efforts to inform Owners ofthe Company’s exercise of its rights under this Section andagrees to consult with, and provide reasonable assistancewithout risk, liability or expense on the part of theDepositary, to the Company on the manner or manners in which itmay enforce such rights with respect to any Owner.**ARTICLE 4. THE DEPOSITED SECURITIES****SECTION 4.01 Cash Distributions.**     Whenever the Depositary shall receive any cash dividend or othercash distribution on any Deposited Securities, the Depositaryshall, subject to the provisions of Section 4.05, convertsuch dividend or distribution into Dollars and shall distributethe amount thus received (net of the fees and expenses of theDepositary as provided in Section 5.09) to the Ownersentitled thereto, in proportion to the number of AmericanDepositary Shares representing such Deposited Securities held bythem respectively; provided, however, that in theevent that the Company or the Depositary shall be required towithhold and does withhold from such cash dividend or such othercash distribution an amount on account of taxes or othergovernmental charges, the amount distributed to the Owner of theAmerican Depositary Shares representing such DepositedSecurities shall be reduced accordingly. The Depositary shalldistribute only such amount, however, as can be distributedwithout attributing to any Owner a fraction of one cent. Anysuch fractional amounts shall be rounded to the nearest wholecent and so distributed to Owners entitled thereto. The Companyor its agent will remit to the appropriate governmental agencyin the Federal Republic of Germany all amounts withheld andowing to such agency. The Depositary will forward to the Companyor its agent such information from its records as the Companymay reasonably request to enable the Company or its agent tofile necessary reports with governmental agencies, and theDepositary or the Company or its agent may file any such reportsnecessary to obtain benefits under the applicable tax treatiesfor the Owners. The Depositary shall also cooperate with theCompany in the establishment and maintenance of arrangementswith the relevant tax authorities that assist Owners, at theirexpense, in claiming tax refunds, tax credits or other taxbenefits (pursuant to treaties or otherwise) relating todistributions on the American Depositary Shares.**SECTION 4.02 Distributions Other Than Cash, Shares orRights.**     Subject to the provisions of Sections 4.11 and 5.09,whenever the Depositary shall receive any distribution otherthan a distribution described in Section 4.01, 4.03 or4.04, the Depositary shall cause the securities or propertyreceived by it to be distributed to the Owners entitled thereto,after deduction or upon payment of any fees and expenses of theDepositary or any taxes or other governmental charges, inproportion to the number of
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American Depositary Shares representing such DepositedSecurities held by them respectively, in any manner that theDepositary may deem equitable and practicable for accomplishingsuch distribution; provided, however, that if in the opinion ofthe Depositary such distribution cannot be made proportionatelyamong the Owners entitled thereto, or if for any other reason(including, but not limited to, any requirement that the Companyor the Depositary withhold an amount on account of taxes orother governmental charges or that such securities must beregistered under the Securities Act of 1933 in order to bedistributed to Owners or holders) the Depositary deems suchdistribution not to be feasible, the Depositary may adopt suchmethod as it may deem equitable and practicable for the purposeof effecting such distribution, including, but not limited to,the public or private sale of the securities or property thusreceived, or any part thereof, and the net proceeds of any suchsale (net of the fees and expenses of the Depositary as providedin Section 5.09) shall be distributed by the Depositary tothe Owners entitled thereto, all in the manner and subject tothe conditions described in Section 4.01. The Depositarymay sell, by public or private sale, an amount of securities orother property it would otherwise distribute under thisSection 4.02 that is sufficient to pay it fees and expensesin respect of that distribution.**SECTION 4.03 Distributions in Shares.**     If any distribution upon any Deposited Securities consists of adividend in, or free distribution of, Shares, the Depositary maydeliver to the Owners entitled thereto, in proportion to thenumber of American Depositary Shares representing such DepositedSecurities held by them respectively, an aggregate number ofAmerican Depositary Shares representing the amount of Sharesreceived as such dividend or free distribution, subject to theterms and conditions of the Deposit Agreement with respect tothe deposit of Shares and after deduction or upon issuance ofAmerican Depositary Shares, including the withholding of any taxor other governmental charge as provided in Section 4.11and the payment of the fees and expenses of the Depositary asprovided in Section 5.09 (and the Depositary may sell, bypublic or private sale, an amount of the Shares receivedsufficient to pay its fees and expenses in respect of thatdistribution). The Depositary may withhold any such delivery ofAmerican Depositary Shares if it has not received satisfactoryassurances from the Company that such distribution does notrequire registration under the Securities Act of 1933 or isexempt from registration under the provisions of such Act. Inlieu of delivering fractional American Depositary Shares in anysuch case, the Depositary shall sell the amount of Sharesrepresented by the aggregate of such fractions and distributethe net proceeds, all in the manner and subject to theconditions described in Section 4.01. If additionalAmerican Depositary Shares are not so delivered, each AmericanDepositary Share shall thenceforth also represent the additionalShares distributed upon the Deposited Securities representedthereby.**SECTION 4.04 Rights.**     In the event that the Company shall offer or cause to be offeredto the holders of any Deposited Securities any rights tosubscribe for additional Shares or any rights of any othernature, the Depositary shall have discretion as to the procedureto be followed in making such rights available to any Owners orin disposing of such rights on behalf of any Owners and makingthe net proceeds available to such Owners or, if by the terms ofsuch rights offering or for any other reason, the Depositary maynot either make such rights available to any Owners or disposeof such rights and make the net proceeds available to suchOwners, then the Depositary shall allow the rights to lapse. Ifat the time of the offering of any rights the Depositarydetermines in its discretion that it is lawful and feasible tomake such rights available to all or certain Owners but not toother Owners, the Depositary may distribute to any Owner to whomit determines the distribution to be lawful and feasible, inproportion to the number of American Depositary Shares held bysuch Owner, warrants or other instruments therefor in such formas it deems appropriate.     In circumstances in which rights would otherwise not bedistributed, if an Owner requests the distribution of warrantsor other instruments in order to exercise the rights allocableto the American Depositary Shares of such Owner hereunder, theDepositary will make such rights available to such Owner uponwritten notice from the Company to the Depositary that(a) the Company has elected in its sole discretion topermit such rights to be exercised and (b) such Owner hasexecuted such documents as the Company has determined in itssole discretion are reasonably required under applicable law.
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     If the Depositary has distributed warrants or other instrumentsfor rights to all or certain Owners, then upon instruction fromsuch an Owner pursuant to such warrants or other instruments tothe Depositary from such Owner to exercise such rights, uponpayment by such Owner to the Depositary for the account of suchOwner of an amount equal to the purchase price of the Shares tobe received upon the exercise of the rights, and upon payment ofthe fees and expenses of the Depositary and any other charges asset forth in such warrants or other instruments, the Depositaryshall, on behalf of such Owner, exercise the rights and purchasethe Shares, and the Company shall cause the Shares so purchasedto be delivered to the Depositary on behalf of such Owner. Asagent for such Owner, the Depositary will cause the Shares sopurchased to be deposited pursuant to Section 2.02 of thisDeposit Agreement, and shall, pursuant to Section 2.03 ofthis Deposit Agreement, deliver American Depositary Shares tosuch Owner. In the case of a distribution pursuant to the secondparagraph of this Section, such deposit shall be made, andDeposited Securities shall be delivered, under depositaryarrangements which provide for issuance of Deposited Securitiessubject to the appropriate restrictions on sale, deposit,cancellation, and transfer under applicable United States laws.     If the Depositary determines in its discretion that it is notlawful and feasible to make such rights available to all orcertain Owners, it may sell the rights, warrants or otherinstruments in proportion to the number of American DepositaryShares held by the Owners to whom it has determined it may notlawfully or feasibly make such rights available, and allocatethe net proceeds of such sales (net of the fees and expenses ofthe Depositary as provided in Section 5.09 and all taxesand governmental charges payable in connection with such rightsand subject to the terms and conditions of this DepositAgreement) for the account of such Owners otherwise entitled tosuch rights, warrants or other instruments, upon an averaged orother practical basis without regard to any distinctions amongsuch Owners because of exchange restrictions or the date ofdelivery of any American Depositary Shares or otherwise.     The Depositary will not offer rights to Owners unless both therights and the securities to which such rights relate are eacheither exempt from registration under the Securities Act of 1933with respect to a distribution to all Owners or are registeredunder the provisions of such Act; provided, that nothingin this Deposit Agreement shall create any obligation on thepart of the Company to file a registration statement withrespect to such rights or underlying securities or to endeavorto have such a registration statement declared effective. If anOwner requests the distribution of warrants or otherinstruments, notwithstanding that there has been no suchregistration under the Securities Act of 1933, the Depositaryshall not effect such distribution unless it has received anopinion from recognized counsel in the United States for theCompany upon which the Depositary may rely that suchdistribution to such Owner is exempt from such registration.     The Depositary shall not be responsible for any failure todetermine that it may be lawful or feasible to make such rightsavailable to Owners in general or any Owner in particular.**SECTION 4.05 Conversion of Foreign Currency.**     Whenever the Depositary or the Custodian shall receive foreigncurrency, by way of dividends or other distributions or the netproceeds from the sale of securities, property or rights, and ifat the time of the receipt thereof the foreign currency soreceived can in the judgment of the Depositary be converted on areasonable basis into Dollars and the resulting Dollarstransferred to the United States, the Depositary shall convertor cause to be converted by sale or in any other manner that itmay determine such foreign currency into Dollars, and suchDollars shall be distributed to the Owners entitled thereto or,if the Depositary shall have distributed any warrants or otherinstruments which entitle the holders thereof to such Dollars,then to the holders of such warrants and/or instruments uponsurrender thereof for cancellation. Such distribution may bemade upon an averaged or other practicable basis without regardto any distinctions among Owners on account of exchangerestrictions, the date of delivery of any American DepositaryShares or otherwise and shall be net of any expenses ofconversion into Dollars incurred by the Depositary as providedin Section 5.09.     If such conversion or distribution can be effected only with theapproval or license of any government or agency thereof, theDepositary shall file such application for approval or license,if any, as it may deem desirable.     If at any time the Depositary shall determine that in itsjudgment any foreign currency received by the Depositary or theCustodian is not convertible on a reasonable basis into Dollarstransferable to the United States,
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or if any approval or license of any government or agencythereof which is required for such conversion is denied or inthe opinion of the Depositary is not obtainable, or if any suchapproval or license is not obtained within a reasonable periodas determined by the Depositary, the Depositary may distributethe foreign currency (or an appropriate document evidencing theright to receive such foreign currency) received by theDepositary to, or in its discretion may hold such foreigncurrency uninvested and without liability for interest thereonfor the respective accounts of, the Owners entitled to receivethe same.     If any such conversion of foreign currency, in whole or in part,cannot be effected for distribution to some of the Ownersentitled thereto, the Depositary may in its discretion make suchconversion and distribution in Dollars to the extent permissibleto the Owners entitled thereto and may distribute the balance ofthe foreign currency received by the Depositary to, or hold suchbalance uninvested and without liability for interest thereonfor the respective accounts of, the Owners entitled thereto.**SECTION 4.06 Fixing of Record Date.**     Whenever any cash dividend or other cash distribution shallbecome payable or any distribution other than cash shall bemade, or whenever rights shall be issued with respect to theDeposited Securities, or whenever the Depositary shall receivenotice of any meeting of holders of Shares or other DepositedSecurities, or whenever for any reason the Depositary causes achange in the number of Shares that are represented by eachAmerican Depositary Share, or whenever the Depositary shall findit necessary or convenient, the Depositary shall fix a recorddate (a) for the determination of the Owners who shall be(i) entitled to receive such dividend, distribution orrights or the net proceeds of the sale thereof,(ii) entitled to give instructions for the exercise ofvoting rights at any such meeting or (iii) responsible forany fee assessed by the Depositary pursuant to this DepositAgreement, or (b) on or after which each AmericanDepositary Share will represent the changed number of Shares.Subject to the provisions of Sections 4.01 through 4.05 andto the other terms and conditions of this Deposit Agreement, theOwners on such record date shall be entitled, as the case maybe, to receive the amount distributable by the Depositary withrespect to such dividend or other distribution or such rights orthe net proceeds of sale thereof in proportion to the number ofAmerican Depositary Shares held by them respectively and to givevoting instructions and to act in respect of any other suchmatter.**SECTION 4.07 Voting of Deposited Securities.**     Upon receipt of notice of any meeting of holders of Shares orother Deposited Securities at which holders of DepositedSecurities will have the right to vote, if requested in writingby the Company, the Depositary shall, as soon as practicablethereafter, mail to the Owners a notice, the form of whichnotice shall be in the sole discretion of the Depositary, whichshall contain (a) such information as is contained in suchnotice of meeting received by the Depositary from the Company,(b) a statement that the Owners as of the close of businesson a specified record date will be entitled, subject to anyapplicable provision of the Federal Republic of Germany law andof the Articles of Association (*Satzung*) of the Company,to instruct the Depositary as to the exercise of the votingrights, if any, pertaining to the amount of Shares or otherDeposited Securities represented by their respective AmericanDepositary Shares and (c) a statement as to the manner inwhich such instructions may be given, including, if theDepositary has received a Recommendation (as defined below), anexpress indication that, if no specific voting instruction isreceived from an Owner prior to the date set by the Depositaryfor that purpose (the “Instruction Date”), thatOwner shall be deemed to have instructed the Depositary to givea proxy to the Custodian, which will act as a proxy bank inaccordance with Sections 128 and 135 of the German StockCorporation Act (*Aktiengesetz*) (the “ProxyBank”), to vote in accordance with its recommendation withregard to voting of the Shares pursuant to Section 128(2) of the German Stock Corporation Act (the“Recommendation”) as to any matter concerning whichthe notice from the Company indicates that a vote is to be takenby holders of Shares and (d) containing any Recommendation.Upon the written request of an Owner of a number of AmericanDepositary Shares on such record date, received on or before theInstruction Date, the Depositary shall endeavor, in so faras practicable, to vote or cause to be voted the amount ofShares or other Deposited Securities represented by that numberof American Depositary Shares in accordance with theinstructions set forth in such request. The Depositary shall notvote or attempt to exercise the right to vote that
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attaches to the Shares or other Deposited Securities, other thanin accordance with such instructions or as provided below.     In order to give Owners a reasonable opportunity to instruct theDepositary as to the exercise of voting rights relating toDeposited Securities, if the Company will request the Depositaryto act under this Section 4.07, the Company shall notifythe Depositary of a meeting of holders of Deposited Securitiesand of details concerning the matters to be voted upon not lessthan 45 days prior to the meeting date.     Subject to the following paragraph of this Section 4.07, if(i) the Company requested the Depositary to act under thisSection 4.07 and complied with the immediately precedingparagraph, (ii) the Depositary received a Recommendationbefore it mailed a notice to Owners under this Section 4.07and (iii) no specific voting instructions are received bythe Depositary from an Owner (to whom a notice was sent by theDepositary) with respect to an amount of Deposited Securitiesrepresented by that Owner’s American Depositary Shares,such Owner shall be deemed, and the Depositary shall deem suchOwner, to have instructed the Depositary to give a proxy to theProxy Bank to vote that amount of Deposited Securities inaccordance with Section 135 of the German Stock CorporationAct, exceptthat no such deemed instruction shallbe deemed given and no discretionary proxy shall be given withrespect to any matter as to which the Company informs theDepositary (and the Company agrees to provide such informationpromptly in writing, if applicable) that (x) the Companydoes not wish such proxy given, (y) substantial oppositionexists or (z) the matter would materially affect the rightsof holders of Shares.     Notwithstanding anything to the contrary contained herein, inthe event that the Proxy Bank shall fail or decline to supplythe Recommendation to the Depositary before the Depositary mailsa notice to Owners under this Section 4.07, the Depositaryshall deliver the above-referenced notice (which shall notcontain the Recommendation or the indication concerning theproxy to be given to the Proxy Bank) to the Owners ashereinabove provided, and, thereafter, in any case in which nospecific voting instructions are received by the Depositary froma Owner on or before the Instruction Date with respect to anumber of Deposited Securities, no votes shall be cast at suchmeeting with respect to that number of Deposited Securities.     There can be no assurance that Owners generally or any Owner inparticular will receive the notice described in the precedingparagraph sufficiently prior to the instruction date to ensurethat the Depositary will vote the Shares or Deposited Securitiesin accordance with the provisions of this Section 4.07.**SECTION 4.08 Changes Affecting DepositedSecurities.**     Upon any change in nominal value, change in par value, split-up,consolidation or any other reclassification of DepositedSecurities, or upon any recapitalization, reorganization, mergeror consolidation or sale of assets affecting the Company or towhich it is a party, or upon the redemption or cancellation bythe Company of the Deposited Securities, any securities, cash orproperty which shall be received by the Depositary or aCustodian in exchange for, in conversion of, in lieu of or inrespect of Deposited Securities, shall be treated as newDeposited Securities under this Deposit Agreement, and AmericanDepositary Shares shall thenceforth represent, in addition tothe existing Deposited Securities, the right to receive the newDeposited Securities so received, unless additional Receipts aredelivered pursuant to the following sentence. In any such casethe Depositary may, execute and deliver additional Receipts asin the case of a dividend in Shares, or call for the surrenderof outstanding Receipts to be exchanged for new Receiptsspecifically describing such new Deposited Securities.**SECTION 4.09 Reports.**     The Depositary shall make available for inspection by Owners atits Corporate Trust Office any reports and communications,including any proxy solicitation material, received from theCompany which are both (a) received by the Depositary asthe holder of the Deposited Securities and (b) madegenerally available to the holders of such Deposited Securitiesby the Company. The Depositary shall also, upon written requestby the Company, send to the Owners copies of such reports whenfurnished by the Company pursuant to Section 5.06. Any suchreports and communications, including any such proxy solicitingmaterial, furnished to the Depositary by the Company shall befurnished in English, to the extent such materials are requiredto be translated into English pursuant to any regulations of theCommission.
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**SECTION 4.10 Lists of Owners.**     Promptly upon request by the Company, the Depositary shall, atthe expense of the Company, furnish to it a list, as of a recentdate, of the names, addresses and holdings of AmericanDepositary Shares by all persons in whose names AmericanDepositary Shares are registered on the books of the Depositary.**SECTION 4.11 Withholding.**     In the event that the Depositary determines that anydistribution in property (including Shares and rights tosubscribe therefor) is subject to any tax or other governmentalcharge which the Depositary is obligated to withhold, theDepositary may by public or private sale dispose of all or aportion of such property (including Shares and rights tosubscribe therefor) in such amounts and in such manner as theDepositary deems necessary and practicable to pay such taxes orcharges and the Depositary shall distribute the net proceeds ofany such sale after deduction of such taxes or charges to theOwners entitled thereto in proportion to the number of AmericanDepositary Shares held by them respectively.**ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THECOMPANY****SECTION 5.01 Maintenance of Office and Transfer Booksby the Depositary.**     Until termination of this Deposit Agreement in accordance withits terms, the Depositary shall maintain in the Borough ofManhattan, The City of New York, facilities for the executionand delivery, registration, registration of transfers andsurrender of Receipts in accordance with the provisions of thisDeposit Agreement.     The Depositary shall keep books, at its Corporate Trust Office,for the registration of American Depositary Shares and transfersof American Depositary Shares which at all reasonable timesshall be open for inspection by the Owners, provided that suchinspection shall not be for the purpose of communicating withOwners in the interest of a business or object other than thebusiness of the Company or a matter related to this DepositAgreement or the American Depositary Shares.     The Depositary may close the transfer books, at any time or fromtime to time, when deemed expedient by it in connection with theperformance of its duties hereunder.     If any American Depositary Shares are listed on one or morestock exchanges in the United States, the Depositary shall actas Registrar or appoint a Registrar or one or more co-registrarsfor registry of such American Depositary Shares in accordancewith any requirements of such exchange or exchanges.**SECTION 5.02 Prevention or Delay in Performance bythe Depositary or the Company.**     Neither the Depositary nor the Company nor any of theirrespective directors, employees, agents or affiliates shallincur any liability to any Owner or holder (i) if by reasonof any provision of any present or future law or regulation ofthe United States or any other country, or of any governmentalor regulatory authority or stock exchange, or by reason of anyprovision, present or future, of the Articles of Association(*Satzung*) of the Company, or by reason of any provisionof any securities issued or distributed by the Company, or anyoffering or distribution thereof, or by reason of any act of Godor war or terrorism or other circumstances beyond its control,the Depositary or the Company shall be prevented, delayed orforbidden from, or be subject to any civil or criminal penaltyon account of, doing or performing any act or thing which by theterms of this Deposit Agreement or Deposited Securities it isprovided shall be done or performed, (ii) by reason of anynonperformance or delay, caused as aforesaid, in the performanceof any act or thing which by the terms of this Deposit Agreementit is provided shall or may be done or performed, (iii) byreason of any exercise of, or failure to exercise, anydiscretion provided for in this Deposit Agreement, (iv) forthe inability of any Owner or holder to benefit from anydistribution, offering, right or other benefit which is madeavailable to holders of Deposited Securities but is not, underthe terms of this Deposit Agreement, made available to Owners orholders, or (v) for any special, consequential or punitivedamages for any breach of the terms of this Deposit Agreement.Where, by the terms of a distribution pursuant toSection 4.01, 4.02, or 4.03 of the Deposit Agreement, or anoffering or distribution pursuant to Section 4.04 of theDeposit Agreement, or for any other reason, such distribution oroffering may not be made available to Owners, and the Depositarymay not dispose of such distribution or
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offering on behalf of such Owners and make the net proceedsavailable to such Owners, then the Depositary shall not makesuch distribution or offering, and shall allow any rights, ifapplicable, to lapse.**SECTION 5.03 Obligations of the Depositary, theCustodian and the Company.**     The Company assumes no obligation nor shall it be subject to anyliability under this Deposit Agreement to any Owner or holder,except that the Company agrees to perform its obligationsspecifically set forth in this Deposit Agreement withoutnegligence or bad faith.     The Depositary assumes no obligation nor shall it be subject toany liability under this Deposit Agreement to any Owner orholder (including, without limitation, liability with respect tothe validity or worth of the Deposited Securities), except thatthe Depositary agrees to perform its obligations specificallyset forth in this Deposit Agreement without negligence or badfaith.     Neither the Depositary nor the Company shall be under anyobligation to appear in, prosecute or defend any action, suit orother proceeding in respect of any Deposited Securities or inrespect of the American Depositary Shares on behalf of any Owneror holder or any person.     Neither the Depositary nor the Company shall be liable for anyaction or nonaction by it in reliance upon the advice of orinformation from legal counsel, accountants, any personpresenting Shares for deposit, any Owner or any other personbelieved by it in good faith to be competent to give such adviceor information.     The Depositary shall not be liable for any acts or omissionsmade by a successor depositary whether in connection with aprevious act or omission of the Depositary or in connection withany matter arising wholly after the removal or resignation ofthe Depositary, provided that in connection with the issue outof which such potential liability arises the Depositaryperformed its obligations without negligence or bad faith whileit acted as Depositary.     The Depositary shall not be responsible for any failure to carryout any instructions to vote any of the Deposited Securities, orfor the manner in which any such vote is cast or the effect ofany such vote, provided that any such action or nonaction is ingood faith.     No disclaimer of liability under the Securities Act of 1933 isintended by any provision of this Deposit Agreement.**SECTION 5.04  Resignation and Removal of theDepositary.**     The Depositary may at any time resign as Depositary hereunder bywritten notice of its election so to do delivered to theCompany, such resignation to take effect upon the earlier of(i) the appointment of a successor depositary and itsacceptance of such appointment as hereinafter provided or(ii) termination by the Depositary pursuant toSection 6.02 of the Deposit Agreement.     The Depositary may at any time be removed by the Company by120 days prior written notice of such removal, to becomeeffective upon the later of (i) the 120th day afterdelivery of the notice to the Depositary and (ii) theappointment of a successor depositary and its acceptance of suchappointment as hereinafter provided.     In case at any time the Depositary acting hereunder shall resignor be removed, the Company shall use its best efforts to appointa successor depositary, which shall be a bank or trust companyhaving an office in the Borough of Manhattan, The City of NewYork. Every successor depositary shall execute and deliver toits predecessor and to the Company an instrument in writingaccepting its appointment hereunder, and thereupon suchsuccessor depositary, without any further act or deed, shallbecome fully vested with all the rights, powers, duties andobligations of its predecessor; but such predecessor,nevertheless, upon payment of all sums due it and on the writtenrequest of the Company shall execute and deliver an instrumenttransferring to such successor all rights and powers of suchpredecessor hereunder, shall duly assign, transfer and deliverall right, title and interest in the Deposited Securities tosuch successor and shall deliver to such successor a list of theOwners of all outstanding Receipts. Any such successordepositary shall promptly mail notice of its appointment to theOwners.
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     Any corporation into or with which the Depositary may be mergedor consolidated shall be the successor of the Depositary withoutthe execution or filing of any document or any further act.**SECTION 5.05 The Custodians.**     The Custodian shall be subject at all times and in all respectsto the directions of the Depositary and shall be responsiblesolely to it. Any Custodian may resign and be discharged fromits duties hereunder by notice of such resignation delivered tothe Depositary at least 30 days prior to the date on whichsuch resignation is to become effective. If upon suchresignation there shall be no Custodian acting hereunder, theDepositary shall, promptly after receiving such notice, appointa substitute custodian or custodians, each of which shallthereafter be a Custodian hereunder. The Depositary in itsdiscretion may appoint a substitute or additional custodian orcustodians, each of which shall thereafter be one of theCustodians hereunder. Upon demand of the Depositary anyCustodian shall deliver such of the Deposited Securities held byit as are requested of it to any other Custodian or suchsubstitute or additional custodian or custodians. Each suchsubstitute or additional custodian shall deliver to theDepositary, forthwith upon its appointment, an acceptance ofsuch appointment satisfactory in form and substance to theDepositary. The Depositary shall notify the Company as promptlyas practicable of any change in Custodians.     Upon the appointment of any successor depositary hereunder, eachCustodian then acting hereunder shall forthwith become, withoutany further act or writing, the agent hereunder of suchsuccessor depositary and the appointment of such successordepositary shall in no way impair the authority of eachCustodian hereunder; but the successor depositary so appointedshall, nevertheless, on the written request of any Custodian,execute and deliver to such Custodian all such instruments asmay be proper to give to such Custodian full and complete powerand authority as agent hereunder of such successor depositary.**SECTION 5.06 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 Sharesor other Deposited Securities, or of any adjourned meeting ofsuch holders, or of the taking of any action in respect of anycash or other distributions or the offering of any rights, theCompany agrees to transmit to the Depositary and the Custodian acopy of the notice thereof in the form given or to be given toholders of Shares or other Deposited Securities.     The Company will arrange for the translation into English, ifnot already in English, to the extent required pursuant to anyregulations of the Commission, and the prompt transmittal by theCompany to the Depositary and the Custodian of such notices andany other reports and communications which are made generallyavailable by the Company to holders of its Shares. If requestedin writing by the Company, the Depositary will arrange for themailing, at the Company’s expense, of copies of suchnotices, reports and communications to all Owners. The Companywill timely provide the Depositary with the quantity of suchnotices, reports, and communications, as requested by theDepositary from time to time, in order for the Depositary toeffect such mailings.**SECTION 5.07 Distribution of Additional Shares,Rights, etc.**     The Company agrees that in the event of any issuance ordistribution of (1) additional Shares, (2) rights tosubscribe for Shares, (3) securities convertible intoShares, or (4) rights to subscribe for such securities(each a “Distribution”), the Company will promptlyfurnish to the Depositary, a written opinion from U.S. counselfor the Company which counsel shall be satisfactory to theDepositary, stating whether or not the Distribution requires aRegistration Statement under the Securities Act of 1933 to be ineffect prior to making such Distribution available to Ownersentitled thereto. If in the opinion of such counsel aRegistration Statement is required, such counsel shall furnishto the Depositary a written opinion as to whether or not thereis a Registration Statement in effect which will cover suchDistribution.     The Company agrees with the Depositary that neither the Companynor any company controlled by, controlling or under commoncontrol with the Company will at any time deposit any Shares,either originally issued or previously issued and reacquired bythe Company or any such affiliate, unless a RegistrationStatement is in effect as to such Shares under the SecuritiesAct of 1933 or the Company delivers to the Depositary an
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opinion of United States counsel, satisfactory to theDepositary, to the effect that the issuance of such Shares isexempt from registration requirement of the Securities Act of1933.**SECTION 5.08 Indemnification.**     The Company agrees to indemnify (i) the Depositary, itsdirectors, employees, agents and affiliates and any Custodianagainst, and hold each of them harmless from, any liability orexpense (including, but not limited to any fees and expensesincurred in seeking, enforcing or collecting such indemnity andthe fees and expenses of counsel) (“Losses”) which mayarise out of or in connection with (a) any registrationwith the Commission of American Depositary Shares or DepositedSecurities or the offer or sale thereof in the United States(other than any such liability or expense arising out of orincurred as a result of the inclusion in the registrationstatement or prospectus for such registration of any informationsupplied in writing by the Depositary specifically for inclusiontherein containing an untrue statement of a material fact oromitting to state a material fact necessary to make thestatements contained therein, under the circumstances underwhich they were made, not misleading) or (b) out of actsperformed or omitted, pursuant to the provisions of this DepositAgreement and of the Receipts, as the same may be amended,modified or supplemented from time to time, (i) by theDepositary or a Custodian or their respective directors,employees, agents and affiliates, except for any liability orexpense arising out of the negligence or bad faith of either ofthem, or (ii) by the Company or any of its directors,employees, agents and affiliates.     The Depositary agrees to indemnify the Company, its directors,employees, agents and affiliates and hold them harmless from anyliability or expense which may arise out of acts performed oromitted by the Depositary or its Custodian or their respectivedirectors, employees, agents and affiliates due to theirnegligence or bad faith.**SECTION 5.09 Charges of Depositary.**     The Company agrees to pay the fees, reasonable expenses and outof pocket charges of the Depositary and those of any Registraronly in accordance with agreements in writing entered intobetween the Depositary and the Company from time to time.     The following charges shall be incurred by any party depositingor withdrawing Shares or by any party surrendering AmericanDepositary Shares or to whom American Depositary Shares areissued (including, without limitation, issuance pursuant to astock dividend or stock split declared by the Company or anexchange of stock regarding the American Depositary Shares orDeposited Securities or a delivery of American Depositary Sharespursuant to Section 4.03), or by Owners, as applicable:(1) taxes and other governmental charges, (2) suchregistration fees as may from time to time be in effect for theregistration of transfers of Shares generally on the Shareregister of the Company or Foreign Registrar and applicable totransfers of Shares to or from the name of the Depositary or itsnominee or the Custodian or its nominee on the making ofdeposits or withdrawals hereunder, (3) such cable, telexand facsimile transmission expenses as are expressly provided inthis Deposit Agreement, (4) such expenses as are incurredby the Depositary in the conversion of foreign currency pursuantto Section 4.05, (5) a fee of $5.00 or less per 100American Depositary Shares (or portion thereof) for the deliveryof American Depositary Shares pursuant to Section 2.03,4.03 or 4.04 and the surrender of American Depositary Sharespursuant to Section 2.05 or 6.02, (6) a fee of $.02 orless per American Depositary Share (or portion thereof) for anycash distribution made pursuant to this Deposit Agreement,including, but not limited to Sections 4.01 through 4.04hereof, (7) a fee for the distribution of securitiespursuant to Section 4.02, such fee being in an amount equalto the fee for the execution and delivery of American DepositaryShares referred to above which would have been charged as aresult of the deposit of such securities (for purposes of thisclause 7 treating all such securities as if they were Shares)but which securities are instead distributed by the Depositaryto Owners, (8) in addition to any fee charged under clause(6), a fee of $.02 or less per American Depositary Share (orportion thereof) for depositary services, which will accrue onthe last day of each calendar year and which will be payable asprovided in clause (9) below and (9) any other chargespayable by the Depositary, any of the Depositary’s agents,including the Custodian, or the agents of the Depositary’sagents in connection with the servicing of Shares or otherDeposited Securities (which charge shall be assessed againstOwners as of the date or dates set by the Depositary inaccordance with Section 4.06 and shall be payable at thesole discretion of the
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Depositary by billing such Owners for such charge or bydeducting such charge from one or more cash dividends or othercash distributions).     The Depositary, subject to Section 2.09 hereof andapplicable law, may own and deal in any class of securities ofthe Company and its affiliates and in American Depositary Shares.**SECTION 5.10 Retention of DepositaryDocuments.**     The Depositary is authorized to destroy those documents,records, bills and other data compiled during the term of thisDeposit Agreement at the times permitted by the laws orregulations governing the Depositary unless the Company requeststhat such papers be retained for a longer period or turned overto the Company or to a successor depositary.**SECTION 5.11 Exclusivity.**     Without prejudice to the Company’s rights underSection 5.04, the Company agrees not to appoint any otherdepositary for issuance of American or global depositary sharesor receipts so long as The Bank of New York is acting asDepositary hereunder.**SECTION 5.12 List of Restricted SecuritiesOwners.**     From time to time, the Company shall provide to the Depositary alist setting forth, to the actual knowledge of the Company,those persons or entities who beneficially own RestrictedSecurities and the Company shall update that list on a regularbasis. The Company agrees to advise in writing each of thepersons or entities so listed that such Restricted Securitiesare ineligible for deposit hereunder. The Depositary may rely onsuch a list or update but shall not be liable for any action oromission made in reliance thereon.**ARTICLE 6. AMENDMENT AND TERMINATION****SECTION 6.01 Amendment.**     The form of the Receipts and any provisions of this DepositAgreement may at any time and from time to time be amended byagreement between the Company and the Depositary without theconsent of Owners or holders in any respect which they may deemnecessary or desirable. Any amendment which shall impose orincrease any fees or charges (other than taxes and othergovernmental charges, registration fees, cable, telex orfacsimile transmission costs, delivery costs or other suchexpenses), or which shall otherwise prejudice any substantialexisting right of Owners, shall, however, not become effectiveas to outstanding American Depositary Shares until theexpiration of 30 days after notice of such amendment shallhave been given to the Owners of outstanding American DepositaryShares. Every Owner and holder, at the time any amendment sobecomes effective, shall be deemed, by continuing to hold suchAmerican Depositary Shares or any interest therein, to consentand agree to such amendment and to be bound by the DepositAgreement as amended thereby. In no event shall any amendmentimpair the right of the Owner to surrender American DepositaryShares and receive therefor the Deposited Securities representedthereby, except in order to comply with mandatory provisions ofapplicable law.**SECTION 6.02 Termination.**     The Company may at any time terminate this Deposit Agreement byinstructing the Depositary to mail a notice of termination tothe Owners of all American Depositary Shares then outstanding atleast 30 days prior to the termination date included insuch notice. The Depositary may likewise terminate this DepositAgreement if at any time 60 days shall have expired afterthe Depositary delivered to the Company a written resignationnotice and if a successor depositary shall not have beenappointed and accepted its appointment as provided inSection 5.04; in such case the Depositary shall mail anotice of termination to the Owners of all American DepositaryShares then outstanding at least 30 days prior to thetermination date. On and after the date of termination, theOwner of American Depositary Shares will, upon(a) surrender of such American Depositary Shares,(b) payment of the fee of the Depositary for the surrenderof American Depositary Shares referred to in
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Section 2.05, and (c) payment of any applicable taxesor governmental charges, be entitled to delivery, to him or uponhis order, of the amount of Deposited Securities represented bythose American Depositary Shares. If any American DepositaryShares shall remain outstanding after the date of termination,the Depositary thereafter shall discontinue the registration oftransfers of American Depositary Shares, shall suspend thedistribution of dividends to the Owners thereof, and shall notgive any further notices or perform any further acts under thisDeposit Agreement, except that the Depositary shall continue tocollect dividends and other distributions pertaining toDeposited Securities, shall sell rights and other property asprovided in this Deposit Agreement, and shall continue todeliver Deposited Securities, together with any dividends orother distributions received with respect thereto and the netproceeds of the sale of any rights or other property, uponsurrender of American Depositary Shares (after deducting, ineach case, the fee of the Depositary for the surrender ofAmerican Depositary Shares, any expenses for the account of theOwner of such American Depositary Shares in accordance with theterms and conditions of this Deposit Agreement, and anyapplicable taxes or governmental charges).     At any time after the expiration of four months from the date oftermination, the Depositary may sell the Deposited Securitiesthen held hereunder and may thereafter hold uninvested the netproceeds of any such sale, together with any other cash thenheld by it hereunder, unsegregated and without liability forinterest, for the pro rata benefit of the Owners of AmericanDepositary Shares that have not theretofore been surrendered,such Owners thereupon becoming general creditors of theDepositary with respect to such net proceeds. After making suchsale, the Depositary shall be discharged from all obligationsunder this Deposit Agreement, except to account for such netproceeds and other cash (after deducting, in each case, the feeof the Depositary for the surrender of American DepositaryShares, any expenses for the account of the Owner of suchAmerican Depositary Shares in accordance with the terms andconditions of this Deposit Agreement, and any applicable taxesor governmental charges. Upon the termination of this DepositAgreement, the Company shall be discharged from all obligationsunder this Deposit Agreement except for its obligations to theDepositary under Sections 5.08 and 5.09 hereof.**ARTICLE 7. MISCELLANEOUS****SECTION 7.01 Counterparts.**     This Deposit Agreement may be executed in any number ofcounterparts, each of which shall be deemed an original and allof such counterparts shall constitute one and the sameinstrument. Copies of this Deposit Agreement shall be filed withthe Depositary and the Custodians and shall be open toinspection by any Owner or holder during business hours.**SECTION 7.02 No Third Party Beneficiaries.**     This Deposit Agreement is for the exclusive benefit of theparties hereto and shall not be deemed to give any legal orequitable right, remedy or claim whatsoever to any other person.**SECTION 7.03 Severability.**     In case any one or more of the provisions contained in thisDeposit Agreement or in the Receipts should be or becomeinvalid, illegal or unenforceable in any respect, the validity,legality and enforceability of the remaining provisionscontained herein or therein shall in no way be affected,prejudiced or disturbed thereby.**SECTION 7.04 Owners and Holders as Parties; BindingEffect.**     The Owners and holders from time to time shall be parties tothis Deposit Agreement and shall be bound by all of the termsand conditions hereof and of the Receipts by acceptance thereof.**SECTION 7.05 Notices.**     Any and all notices to be given to the Company shall be deemedto have been duly given if personally delivered or sent by mailor cable, telex or facsimile transmission confirmed by letter,addressed to Fresenius
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Medical Care AG & Co. KGaA, Else-Kröner-Strasse 1,61352 Bad Homburg v.D.H., Germany, Attention: Investor Relationsor any other place to which the Company may have transferred itsprincipal office.     Any and all notices to be given to the Depositary shall bedeemed to have been duly given if in English and personallydelivered or sent by mail or cable, telex or facsimiletransmission confirmed by letter, addressed to The Bank of NewYork, 101 Barclay Street, New York, New York 10286, Attention:American Depositary Receipt Administration, or any other placeto which the Depositary may have transferred its Corporate TrustOffice.     Any and all notices to be given to any Owner shall be deemed tohave been duly given if personally delivered or sent by mail orcable, telex or facsimile transmission confirmed by letter,addressed to such Owner at the address of such Owner as itappears on the transfer books for American Depositary Shares ofthe Depositary, or, if such Owner shall have filed with theDepositary a written request that notices intended for suchOwner be mailed to some other address, at the address designatedin such request.     Delivery of a notice sent by mail or cable, telex or facsimiletransmission shall be deemed to be effected at the time when aduly addressed letter containing the same (or a confirmationthereof in the case of a cable, telex or facsimile transmission)is deposited, postage prepaid, in a post-office letter box. TheDepositary or the Company may, however, act upon any cable,telex or facsimile transmission received by it, notwithstandingthat such cable, telex or facsimile transmission shall notsubsequently be confirmed by letter as aforesaid.**SECTION 7.06 ****Submission to Jurisdiction; Appointment of Agent for    Service of Process; Jury Trial Waiver.**     The Company hereby (i) irrevocably designates and appointsFresenius Medical Care Holdings, Inc., 920 Winter Street,Waltham, MA 02451-1457, Attn: General Counsel, as theCompany’s authorized agent upon which process may be servedin any suit or proceeding arising out of or relating to theShares or Deposited Securities, the American Depositary Shares,the Receipts or this Agreement, (ii) consents and submitsto the jurisdiction of any state or federal court in the Stateof New York in which any such suit or proceeding may beinstituted, and (iii) agrees that service of process uponsaid authorized agent shall be deemed in every respect effectiveservice of process upon the Company in any such suit orproceeding. The Company agrees to deliver, upon the executionand delivery of this Deposit Agreement, a written acceptance bysuch agent of its appointment as such agent. The Company furtheragrees to take any and all action, including the filing of anyand all such documents and instruments, as may be necessary tocontinue such designation and appointment in full force andeffect for so long as any American Depositary Shares or Receiptsremain outstanding or this Agreement remains in force. In theevent the Company fails to continue such designation andappointment in full force and effect, the Company hereby waivespersonal service of process upon it and consents that any suchservice of process may be made by certified or registered mail,return receipt requested, directed to the Company at its addresslast specified for notices hereunder, and service so made shallbe deemed completed five (5) days after the same shall havebeen so mailed.     EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCEOF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAYHAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDINGAGAINST THE COMPANY AND/ OR THE DEPOSITARY DIRECTLY ORINDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHERDEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THERECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATEDHEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDINGWITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY ORTERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHERTHEORY).
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**SECTION 7.07 Waiver of Immunities.**     To the extent that the Company or any of its properties, assetsor revenues may have or may hereafter become entitled to, orhave attributed to it, any right of immunity, on the grounds ofsovereignty or otherwise, from any legal action, suit orproceeding, from the giving of any relief in any respectthereof, from setoff or counterclaim, from the jurisdiction ofany court, from service of process, from attachment upon orprior to judgment, from attachment in aid of execution orjudgment, or from execution of judgment, or other legal processor proceeding for the giving of any relief or for theenforcement of any judgment, in any jurisdiction in whichproceedings may at any time be commenced, with respect to itsobligations, liabilities or any other matter under or arisingout of or in connection with the Shares or Deposited Securities,the American Depositary Shares, the Receipts or this Agreement,the Company, to the fullest extent permitted by law, herebyirrevocably and unconditionally waives, and agrees not to pleador claim, any such immunity and consents to such relief andenforcement.**SECTION 7.08 Governing Law.**     This Deposit Agreement and the Receipts shall be interpreted andall rights hereunder and thereunder and provisions hereof andthereof shall be governed by the laws of the State of New York,except with respect to its authorization and execution by theCompany, which shall be governed by the laws of the FederalRepublic of Germany.
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     IN WITNESS WHEREOF, Fresenius Medical Care AG & Co. KGaA andTHE BANK OF NEW YORK have duly executed this Deposit Agreementas of the day and year first set forth above and all Ownersshall become parties hereto upon acceptance by them of AmericanDepositary Shares issued in accordance with the terms hereof.     FRESENIUS MEDICAL CARE AG & CO. KGaA,     a partnership limited by     shares represented by      FRESENIUS MEDICAL CARE MANAGEMENT AG,     its general partnerBy:        Name:       Title:By:        Name:       Title:      THE BANK OF NEW YORK,       as DepositaryBy:        Name:       Title:
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**EXHIBIT A** **AMERICAN DEPOSITARY SHARES** **(Each American Depositary Share** **represents** **one-third of one deposited Share)****THE BANK OF NEW YORK****AMERICAN DEPOSITARY RECEIPT****FOR PREFERENCE BEARER SHARES OF****FRESENIUS MEDICAL CARE AG & CO. KGaA****(ORGANIZED UNDER THE LAWS OF THE****FEDERAL REPUBLIC OF GERMANY)**     The Bank of New York, as depositary (hereinafter called theDepositary), hereby certifies that                                                            ,or registered assigns IS THE OWNER OF                                             AMERICAN DEPOSITARY SHARESrepresenting deposited preference bearer shares (herein calledShares) of Fresenius Medical Care AG & Co. KGaA, apartnership limited by shares (*Kommanditgesellschaft aufAktien)*organized under the laws of the Federal Republic ofGermany (herein called the Company). At the date hereof, eachAmerican Depositary Share represents one-third of one Sharedeposited or subject to deposit under the Deposit Agreement (assuch term is hereinafter defined) at the principal Frankfurtoffice of BHF Bank AG (herein called the Custodian). TheDepositary’s Corporate Trust Office is located at adifferent address than its principal executive office. ItsCorporate Trust Office is located at 101 Barclay Street, NewYork, N.Y. 10286, and its principal executive office is locatedat One Wall Street, New York, N.Y. 10286.THE DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS101 BARCLAY STREET, NEW YORK, N.Y. 10286

 
**1. THE DEPOSIT AGREEMENT.**     This American Depositary Receipt is one of an issue (hereincalled Receipts), all issued and to be issued upon the terms andconditions set forth in the deposit agreement, dated as ofFebruary 26, 2007 (the “Deposit Agreement”), byand among the Company, the Depositary, and all Owners andholders from time to time of American Depositary Shares issuedthereunder, each of whom by accepting American Depositary Sharesagrees to become a party thereto and become bound by all theterms and conditions thereof. The Deposit Agreement sets forththe rights of Owners and holders and the rights and duties ofthe Depositary in respect of the Shares deposited thereunder andany and all other securities, property and cash from time totime received in respect of such Shares and held thereunder(such Shares, securities, property, and cash are herein called“Deposited Securities”). Copies of the DepositAgreement are on file at the Depositary’s Corporate TrustOffice in New York City and at the office of the Custodian.     The statements made on the face and reverse of this Receipt aresummaries of certain provisions of the Deposit Agreement and arequalified by and subject to the detailed provisions of theDeposit Agreement, to which reference is hereby made.Capitalized terms defined in the Deposit Agreement and notdefined herein shall have the meanings set forth in the DepositAgreement.**2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.**     Upon surrender at the Corporate Trust Office of the Depositaryof American Depositary Shares, and upon payment of the fee ofthe Depositary provided in this Receipt, and subject to theterms and conditions of the Deposit Agreement, the Owner ofthose American Depositary Shares is entitled to delivery, to himor as instructed, of the amount of Deposited Securities at thetime represented by those American Depositary Shares. Deliveryof such Deposited Securities may be made by the delivery of(a) certificates or account transfer in the name of theOwner hereof or as ordered by him, with proper endorsement oraccompanied by proper instruments or instructions of transferand (b) any other securities, property and cash to whichsuch Owner is then entitled in respect of this Receipt. Suchdelivery will be made at the option of the Owner hereof, eitherat the office of the Custodian or at the Corporate Trust Officeof the Depositary, provided that the forwarding of certificatesfor Shares or other Deposited Securities for such delivery atthe Corporate Trust Office of the Depositary shall be at therisk and expense of the Owner hereof.**3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OFRECEIPTS.**     Transfers of American Depositary Shares may be registered on thebooks of the Depositary by the Owner in person or by a dulyauthorized attorney, upon surrender of those American DepositaryShares properly endorsed for transfer or accompanied by properinstruments of transfer, in the case of a Receipt, or pursuantto a proper instruction (including, for the avoidance of doubt,instructions through DRS and Profile as provided inSection 2.10 of the Deposit Agreement), in the case ofuncertificated American Depositary Shares, and funds sufficientto pay any applicable transfer taxes and the expenses of theDepositary and upon compliance with such regulations, if any, asthe Depositary may establish for such purpose. This Receipt maybe split into other such Receipts, or may be combined with othersuch Receipts into one Receipt, evidencing the same aggregatenumber of American Depositary Shares as the Receipt or Receiptssurrendered. The Depositary, upon surrender of a Receipt for thepurpose of exchanging for uncertificated American DepositaryShares, shall cancel that Receipt and send the Owner a statementconfirming that the Owner is the Owner of uncertificatedAmerican Depositary Shares. The Depositary, upon receipt of aproper instruction (including, for the avoidance of doubt,instructions through DRS and Profile as provided inSection 2.10 of the Deposit Agreement) from the Owner ofuncertificated American Depositary Shares for the purpose ofexchanging for certificated American Depositary Shares, shallexecute and deliver to the Owner a Receipt evidencing thoseAmerican Depositary Shares. As a condition precedent to thedelivery, registration of transfer, or surrender of any AmericanDepositary Shares or split-up or combination of any Receipt orwithdrawal of any Deposited Securities, the Depositary, theCustodian, or Registrar may require payment from the depositorof the Shares or the presenter of the Receipt or instruction forregistration of transfer or surrender of American DepositaryShares not evidenced by a Receipt of a sum sufficient toreimburse it for any tax or other governmental charge and anystock transfer or registration fee with respect thereto(including any such tax or charge and fee with respect to Sharesbeing deposited or withdrawn) and
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payment of any applicable fees as provided in the DepositAgreement, may require the production of proof satisfactory toit as to the identity and genuineness of any signature and mayalso require compliance with any regulations the Depositary mayestablish consistent with the provisions of the DepositAgreement.     The delivery of American Depositary Shares against deposit ofShares generally or against deposit of particular Shares may besuspended, or the transfer of American Depositary Shares inparticular instances may be refused, or the registration oftransfer of outstanding American Depositary Shares generally maybe suspended, during any period when the transfer books of theDepositary are closed, or if any such action is deemed necessaryor advisable by the Depositary or the Company at any time orfrom time to time because of any requirement of law or of anygovernment or governmental body or commission, or under anyprovision of the Deposit Agreement, or for any other reason,subject to the provisions of the following sentence.Notwithstanding anything to the contrary in the DepositAgreement or this Receipt, the surrender of outstanding AmericanDepositary Shares and withdrawal of Deposited Securities may notbe suspended subject only to (i) temporary delays caused byclosing the transfer books of the Depositary or the Company orthe Foreign Registrar, if applicable, or the deposit of Sharesin connection with voting at a shareholders’ meeting, orthe payment of dividends, (ii) the payment of fees, taxesand similar charges, and (iii) compliance with any U.S. orforeign laws or governmental regulations relating to theAmerican Depositary Shares or to the withdrawal of the DepositedSecurities. Without limitation of the foregoing, the Depositaryshall not knowingly accept for deposit under the DepositAgreement any Shares which would be required to be registeredunder the provisions of the Securities Act of 1933, unless aregistration statement is in effect as to such Shares or suchShares are exempt from registration thereunder.**4. LIABILITY OF OWNER FOR TAXES.**     If any tax or other governmental charge shall become payablewith respect to any American Depositary Shares or any DepositedSecurities represented by any American Depositary Shares, suchtax or other governmental charge shall be payable by the Ownerto the Depositary. The Depositary may refuse to register anytransfer of those American Depositary Shares or any withdrawalof Deposited Securities represented by those American DepositaryShares until such payment is made, and may withhold anydividends or other distributions, or may sell for the account ofthe Owner any part or all of the Deposited Securitiesrepresented by those American Depositary Shares, and may applysuch dividends or other distributions or the proceeds of anysuch sale in payment of such tax or other governmental chargeand the Owner shall remain liable for any deficiency.**5. WARRANTIES ON DEPOSIT OF SHARES.**     Every person depositing Shares under the Deposit Agreement shallbe deemed thereby to represent and warrant, that such Shares andeach certificate therefor, if applicable, are validly issued,fully paid, nonassessable and free of any preemptive rights ofthe holders of outstanding Shares and that the person makingsuch deposit is duly authorized so to do. Every such personshall also be deemed to represent that the deposit of suchShares and the sale of American Depositary Shares representingsuch Shares by that person are not restricted under theSecurities Act of 1933. Such representations and warrantiesshall survive the deposit of Shares and delivery of AmericanDepositary Shares.**6. FILING PROOFS, CERTIFICATES, AND OTHERINFORMATION.**     Any person presenting Shares for deposit or any Owner or holdermay be required from time to time to file with the Depositary orthe Custodian such proof of citizenship or residence, exchangecontrol approval, or such information relating to theregistration on the books of the Company or the ForeignRegistrar, if applicable, to execute such certificates and tomake such representations and warranties, as the Depositary maydeem necessary or proper. The Depositary may withhold thedelivery or registration of transfer of any American DepositaryShares or the distribution of any dividend or sale ordistribution of rights or of the proceeds thereof or thedelivery of any Deposited Securities until such proof or otherinformation is filed or such certificates are executed or suchrepresentations and warranties made. No Share shall be acceptedfor deposit unless accompanied by evidence satisfactory to theDepositary that any necessary approval has been granted by anygovernmental body in the Federal Republic of Germany, which isthen performing the function of the regulation of currencyexchange.
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**7. CHARGES OF DEPOSITARY.**     The following charges shall be incurred by any party depositingor withdrawing Shares or by any party surrendering AmericanDepositary Shares or to whom American Depositary Shares areissued (including, without limitation, issuance pursuant to astock dividend or stock split declared by the Company or anexchange of stock regarding the American Depositary Shares orDeposited Securities or a delivery of American Depositary Sharespursuant to Section 4.03 of the Deposit Agreement), or byOwners, as applicable: (1) taxes and other governmentalcharges, (2) such registration fees as may from time totime be in effect for the registration of transfers of Sharesgenerally on the Share register of the Company or ForeignRegistrar and applicable to transfers of Shares to or from thename of the Depositary or its nominee or the Custodian or itsnominee on the making of deposits or withdrawals under the termsof the Deposit Agreement, (3) such cable, telex andfacsimile transmission expenses as are expressly provided in theDeposit Agreement, (4) such expenses as are incurred by theDepositary in the conversion of foreign currency pursuant toSection 4.05 of the Deposit Agreement, (5) a fee of$5.00 or less per 100 American Depositary Shares (or portionthereof) for the delivery of American Depositary Shares pursuantto Section 2.03, 4.03 or 4.04 of the Deposit Agreement andthe surrender of American Depositary Shares pursuant toSection 2.05 or 6.02 of the Deposit Agreement, (6) afee of $.02 or less per American Depositary Share (or portionthereof) for any cash distribution made pursuant to the DepositAgreement, including, but not limited to Sections 4.01through 4.04 of the Deposit Agreement, (7) a fee for thedistribution of securities pursuant to Section 4.02 of theDeposit Agreement, such fee being in an amount equal to the feefor the execution and delivery of American Depositary Sharesreferred to above which would have been charged as a result ofthe deposit of such securities (for purposes of this clause 7treating all such securities as if they were Shares) but whichsecurities are instead distributed by the Depositary to Owners,(8) in addition to any fee charged under clause (6)**,**a fee of $.02 or less per American Depositary Share (orportion thereof) for depositary services, which will accrue onthe last day of each calendar year and which will be payable asprovided in clause (9) below and (9) any other chargespayable by the Depositary, any of the Depositary’s agents,including the Custodian, or the agents of the Depositary’sagents in connection with the servicing of Shares or otherDeposited Securities (which charge shall be assessed againstOwners as of the date or dates set by the Depositary inaccordance with Section 4.06 of the Deposit Agreement andshall be payable at the sole discretion of the Depositary bybilling such Owners for such charge or by deducting such chargefrom one or more cash dividends or other cash distributions).     The Depositary, subject to Article 8 hereof, may own anddeal in any class of securities of the Company and itsaffiliates and in American Depositary Shares.**8. PRE-RELEASE OF RECEIPTS.**     Notwithstanding Section 2.03 of the Deposit Agreement, theDepositary may deliver American Depositary Shares prior to thereceipt of Shares pursuant to Section 2.02 of the DepositAgreement (a “Pre-Release”). The Depositary may,pursuant to Section 2.05 of the Deposit Agreement, deliverShares upon the surrender of American Depositary Shares thathave been Pre-Released, whether or not such cancellation isprior to the termination of such Pre-Release or the Depositaryknows that such American Depositary Shares have beenPre-Released. The Depositary may receive American DepositaryShares in lieu of Shares in satisfaction of a Pre-Release. EachPre-Release will be (a) preceded or accompanied by awritten representation from the person to whom AmericanDepositary Shares or Shares are to be delivered, that suchperson, or its customer, owns the Shares or American DepositaryShares to be remitted, as the case may be, (b) at all timesfully collateralized with cash or such other collateral as theDepositary deems appropriate (but such collateral shall notconstitute “Deposited Securities”),(c) terminable by the Depositary on not more than five(5) business days notice, and (d) subject to suchfurther indemnities and credit regulations as the Depositarydeems appropriate. The number of American Depositary Shareswhich are outstanding at any time as a result of Pre-Releasewill not normally exceed thirty percent (30%) of the Sharesdeposited under the Deposit Agreement; provided, however, thatthe Depositary reserves the right to change or disregard suchlimit from time to time as it deems appropriate.     The Depositary may retain for its own account any compensationreceived by it in connection with the foregoing.
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**9. TITLE TO RECEIPTS.**     It is a condition of this Receipt and every successive Owner andholder of this Receipt by accepting or holding the same consentsand agrees that when properly endorsed or accompanied by properinstruments of transfer, shall be transferable as certificatedregistered securities under the laws of New York. AmericanDepositary Shares not evidenced by Receipts shall betransferable as uncertificated registered securities under thelaws of New York. The Depositary, notwithstanding any notice tothe contrary, may treat the Owner of American Depositary Sharesas the absolute owner thereof for the purpose of determining theperson entitled to distribution of dividends or otherdistributions or to any notice provided for in the DepositAgreement and for all other purposes, and neither the Depositarynor the Company shall have any obligation or be subject to anyliability under the Deposit Agreement to any holder of a Receiptunless such holder is the Owner thereof.**10. VALIDITY OF RECEIPT.**     This Receipt shall not be entitled to any benefits under theDeposit Agreement or be valid or obligatory for any purpose,unless this Receipt shall have been executed by the Depositaryby the manual signature of a duly authorized signatory of theDepositary; provided, however that such signaturemay be a facsimile if a Registrar for the Receipts shall havebeen appointed and such Receipts are countersigned by the manualsignature of a duly authorized officer of the Registrar.**11. REPORTS; INSPECTION OF TRANSFER BOOKS.**     The Company is subject to the periodic reporting requirements ofthe Securities Exchange Act of 1934 and, accordingly, filescertain reports with the Securities and Exchange Commission.Such reports and communications will be available for inspectionand copying at the public reference facilities maintained by theCommission located at 100 F Street, N.E., Washington, D.C. 20549and, so long as the Company files such reports electronically,on the World Wide Website of the Commission athttp://www.sec.gov.     The Depositary will make available for inspection by Owners atits Corporate Trust Office any reports, notices and othercommunications, including any proxy soliciting material,received from the Company which are both (a) received bythe Depositary as the holder of the Deposited Securities and(b) made generally available to the holders of suchDeposited Securities by the Company. The Depositary will also,upon written request by the Company, send to Owners copies ofsuch reports when furnished by the Company pursuant to theDeposit Agreement. Any such reports and communications,including any such proxy soliciting material, furnished to theDepositary by the Company shall be furnished in English to theextent such materials are required to be translated into Englishpursuant to any regulations of the Commission.     The Depositary will keep books, at its Corporate Trust Office,for the registration of American Depositary Shares and transfersof American Depositary Shares which at all reasonable timesshall be open for inspection by the Owners, provided that suchinspection shall not be for the purpose of communicating withOwners in the interest of a business or object other than thebusiness of the Company or a matter related to the DepositAgreement or the American Depositary Shares.**12. DIVIDENDS AND DISTRIBUTIONS.**     Whenever the Depositary receives any cash dividend or other cashdistribution on any Deposited Securities, the Depositary will,if at the time of receipt thereof any amounts received in aforeign currency can in the judgment of the Depositary beconverted on a reasonable basis into United States dollarstransferable to the United States, and subject to the DepositAgreement, convert such dividend or distribution into dollarsand will distribute the amount thus received (net of the feesand expenses of the Depositary as provided in Article 7hereof and Section 5.09 of the Deposit Agreement) to theOwners entitled thereto; provided, however, thatin the event that the Company or the Depositary is required towithhold and does withhold from any cash dividend or other cashdistribution in respect of any Deposited Securities an amount onaccount of taxes or other governmental charges, the amountdistributed to the Owners of the American Depositary Sharesrepresenting such Deposited Securities shall be reducedaccordingly.
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     Subject to the provisions of Section 4.11 and 5.09 of theDeposit Agreement, whenever the Depositary receives anydistribution other than a distribution described inSection 4.01, 4.03 or 4.04 of the Deposit Agreement, theDepositary will cause the securities or property received by itto be distributed to the Owners entitled thereto, in any mannerthat the Depositary may deem equitable and practicable foraccomplishing such distribution; provided,however, that if in the opinion of the Depositary suchdistribution cannot be made proportionately among the Owners ofReceipts entitled thereto, or if for any other reason theDepositary deems such distribution not to be feasible, theDepositary may adopt such method as it may deem equitable andpracticable for the purpose of effecting such distribution,including, but not limited to, the public or private sale of thesecurities or property thus received, or any part thereof, andthe net proceeds of any such sale (net of the fees and expensesof the Depositary as provided in Article 7 hereof andSection 5.09 of the Deposit Agreement) will be distributedby the Depositary to the Owners of Receipts entitled thereto allin the manner and subject to the conditions described inSection 4.01 of the Deposit Agreement. The Depositary maysell, by public or private sale, an amount of securities orother property it would otherwise distribute under this Articlethat is sufficient to pay its fees and expenses in respect ofthat distribution.     If any distribution consists of a dividend in, or freedistribution of, Shares, the Depositary may deliver to theOwners entitled thereto, an aggregate number of AmericanDepositary Shares representing the amount of Shares received assuch dividend or free distribution, subject to the terms andconditions of the Deposit Agreement with respect to the depositof Shares and after deduction or upon issuance of AmericanDepositary Shares, including the withholding of any tax or othergovernmental charge as provided in Section 4.11 of theDeposit Agreement and the payment of the fees and expenses ofthe Depositary as provided in Article 7 hereof andSection 5.09 of the Deposit Agreement (and the Depositarymay sell, by public or private sale, an amount of Sharesreceived sufficient to pay its fees and expenses in respect ofthat distribution. In lieu of delivering fractional AmericanDepositary Shares in any such case, the Depositary will sell theamount of Shares represented by the aggregate of such fractionsand distribute the net proceeds, all in the manner and subjectto the conditions described in Section 4.01of the DepositAgreement. If additional American Depositary Shares are not sodelivered, each American Depositary Share shall thenceforth alsorepresent the additional Shares distributed upon the DepositedSecurities represented thereby.     In the event that the Depositary determines that anydistribution in property (including Shares and rights tosubscribe therefor) is subject to any tax or other governmentalcharge which the Depositary is obligated to withhold, theDepositary may by public or private sale dispose of all or aportion of such property (including Shares and rights tosubscribe therefor) in such amounts and in such manner as theDepositary deems necessary and practicable to pay any such taxesor charges, and the Depositary shall distribute the net proceedsof any such sale after deduction of such taxes or charges to theOwners of Receipts entitled thereto.**13. RIGHTS.**     In the event that the Company shall offer or cause to be offeredto the holders of any Deposited Securities any rights tosubscribe for additional Shares or any rights of any othernature, the Depositary shall have discretion as to the procedureto be followed in making such rights available to any Owners orin disposing of such rights on behalf of any Owners and makingthe net proceeds available to such Owners or, if by the terms ofsuch rights offering or for any other reason, the Depositary maynot either make such rights available to any Owners or disposeof such rights and make the net proceeds available to suchOwners, then the Depositary shall allow the rights to lapse. Ifat the time of the offering of any rights the Depositarydetermines in its discretion that it is lawful and feasible tomake such rights available to all or certain Owners but not toother Owners, the Depositary may distribute to any Owner to whomit determines the distribution to be lawful and feasible, inproportion to the number of American Depositary Shares held bysuch Owner, warrants or other instruments therefor in such formas it deems appropriate.     In circumstances in which rights would otherwise not bedistributed, if an Owner requests the distribution of warrantsor other instruments in order to exercise the rights allocableto the American Depositary Shares of such Owner under theDeposit Agreement, the Depositary will make such rightsavailable to such Owner upon written notice from the Company tothe Depositary that (a) the Company has elected in its solediscretion to permit such
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rights to be exercised and (b) such Owner has executed suchdocuments as the Company has determined in its sole discretionare reasonably required under applicable law.     If the Depositary has distributed warrants or other instrumentsfor rights to all or certain Owners, then upon instruction fromsuch an Owner pursuant to such warrants or other instruments tothe Depositary from such Owner to exercise such rights, uponpayment by such Owner to the Depositary for the account of suchOwner of an amount equal to the purchase price of the Shares tobe received upon the exercise of the rights, and upon payment ofthe fees and expenses of the Depositary and any other charges asset forth in such warrants or other instruments, the Depositaryshall, on behalf of such Owner, exercise the rights and purchasethe Shares, and the Company shall cause the Shares so purchasedto be delivered to the Depositary on behalf of such Owner. Asagent for such Owner, the Depositary will cause the Shares sopurchased to be deposited pursuant to Section 2.02 of theDeposit Agreement, and shall, pursuant to Section 2.03 ofthe Deposit Agreement, deliver American Depositary Shares tosuch Owner. In the case of a distribution pursuant to the secondparagraph of this Article 13, such deposit shall be made,and Deposited Securities shall be delivered, under depositaryarrangements which provide for issuance of Deposited Securitiessubject to the appropriate restrictions on sale, deposit,cancellation, and transfer under applicable United States laws.     If the Depositary determines in its discretion that it is notlawful and feasible to make such rights available to all orcertain Owners, it may sell the rights, warrants or otherinstruments in proportion to the number of American DepositaryShares held by the Owners to whom it has determined it may notlawfully or feasibly make such rights available, and allocatethe net proceeds of such sales (net of the fees and expenses ofthe Depositary as provided in Section 5.09 of the DepositAgreement and all taxes and governmental charges payable inconnection with such rights and subject to the terms andconditions of the Deposit Agreement) for the account of suchOwners otherwise entitled to such rights, warrants or otherinstruments, upon an averaged or other practical basis withoutregard to any distinctions among such Owners because of exchangerestrictions or the date of delivery of any American DepositaryShares or otherwise.     The Depositary will not offer rights to Owners unless both therights and the securities to which such rights relate are eitherexempt from registration under the Securities Act of 1933 withrespect to a distribution to all Owners or are registered underthe provisions of such Act; provided, that nothing in theDeposit Agreement shall create any obligation on the part of theCompany to file a registration statement with respect to suchrights or underlying securities or to endeavor to have such aregistration statement declared effective. If an Owner requeststhe distribution of warrants or other instruments,notwithstanding that there has been no such registration underthe Securities Act of 1933, the Depositary shall not effect suchdistribution unless it has received an opinion from recognizedcounsel in the United States for the Company upon which theDepositary may rely that such distribution to such Owner isexempt from such registration.     The Depositary shall not be responsible for any failure todetermine that it may be lawful or feasible to make such rightsavailable to Owners in general or any Owner in particular.**14. CONVERSION OF FOREIGN CURRENCY.**     Whenever the Depositary or the Custodian shall receive foreigncurrency, by way of dividends or other distributions or the netproceeds from the sale of securities, property or rights, and ifat the time of the receipt thereof the foreign currency soreceived can in the judgment of the Depositary be converted on areasonable basis into Dollars and the resulting Dollarstransferred to the United States, the Depositary shall convertor cause to be converted by sale or in any other manner that itmay determine, such foreign currency into Dollars, and suchDollars shall be distributed to the Owners entitled thereto or,if the Depositary shall have distributed any warrants or otherinstruments which entitle the holders thereof to such Dollars,then to the holders of such warrants and/or instruments uponsurrender thereof for cancellation. Such distribution may bemade upon an averaged or other practicable basis without regardto any distinctions among Owners on account of exchangerestrictions, the date of delivery of any American DepositaryShares or otherwise and shall be net of any expenses ofconversion into Dollars incurred by the Depositary as providedin Section 5.09 of the Deposit Agreement.     If such conversion or distribution can be effected only with theapproval or license of any government or agency thereof, theDepositary shall file such application for approval or license,if any, as it may deem desirable.
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     If at any time the Depositary shall determine that in itsjudgment any foreign currency received by the Depositary or theCustodian is not convertible on a reasonable basis into Dollarstransferable to the United States, or if any approval or licenseof any government or agency thereof which is required for suchconversion is denied or in the opinion of the Depositary is notobtainable, or if any such approval or license is not obtainedwithin a reasonable period as determined by the Depositary, theDepositary may distribute the foreign currency (or anappropriate document evidencing the right to receive suchforeign currency) received by the Depositary to, or in itsdiscretion may hold such foreign currency uninvested and withoutliability for interest thereon for the respective accounts of,the Owners entitled to receive the same.     If any such conversion of foreign currency, in whole or in part,cannot be effected for distribution to some of the Ownersentitled thereto, the Depositary may in its discretion make suchconversion and distribution in Dollars to the extent permissibleto the Owners entitled thereto and may distribute the balance ofthe foreign currency received by the Depositary to, or hold suchbalance uninvested and without liability for interest thereonfor the respective accounts of, the Owners entitled thereto.**15. RECORD DATES.**     Whenever any cash dividend or other cash distribution shallbecome payable or any distribution other than cash shall bemade, or whenever rights shall be issued with respect to theDeposited Securities, or whenever the Depositary shall receivenotice of any meeting of holders of Shares or other DepositedSecurities, or whenever for any reason the Depositary causes achange in the number of Shares that are represented by eachAmerican Depositary Share, or whenever the Depositary shall findit necessary or convenient, the Depositary shall fix a recorddate (a) for the determination of the Owners who shall be(i) entitled to receive such dividend, distribution orrights or the net proceeds of the sale thereof,(ii) entitled to give instructions for the exercise ofvoting rights at any such meeting or (iii) responsible forany fee assessed by the Depositary pursuant to the DepositAgreement, or (b) on or after which each AmericanDepositary Share will represent the changed number of Shares,subject to the provisions of the Deposit Agreement.**16. VOTING OF DEPOSITED SECURITIES.**     Upon receipt of notice of any meeting of holders of Shares orother Deposited Securities at which holders of DepositedSecurities will have the right to vote,     if requested in writing by the Company, the Depositary shall, assoon as practicable thereafter, mail to the Owners a notice, theform of which notice shall be in the sole discretion of theDepositary, which shall contain (a) such information as iscontained in such notice of meeting received by the Depositaryfrom the Company, (b) a statement that the Owners as of theclose of business on a specified record date will be entitled,subject to any applicable provision of the Federal Republic ofGermany law and of the Articles of Association (*Satzung*)of the Company, to instruct the Depositary as to the exercise ofthe voting rights, if any, pertaining to the amount of Shares orother Deposited Securities represented by their respectiveAmerican Depositary Shares and (c) a statement as to themanner in which such instructions may be given, including, ifthe Depositary has received a Recommendation (as defined below),an express indication that, if no specific voting instruction isreceived from an Owner prior to the date set by the Depositaryfor that purpose (the “Instruction Date”), thatOwner shall be deemed to have instructed the Depositary to givea proxy to the Custodian, which will act as a proxy bank inaccordance with Sections 128 and 135 of the German StockCorporation Act (*Aktiengesetz*) (the “ProxyBank”), to vote in accordance with its recommendation withregard to voting of the Shares pursuant to Section 128(2) of the German Stock Corporation Act (the“Recommendation”) as to any matter concerning whichthe notice from the Company indicates that a vote is to be takenby holders of Shares and (d) containing any Recommendation.Upon the written request of an Owner of a number of AmericanDepositary Shares on such record date, received on or before theInstruction Date, the Depositary shall endeavor, in so faras practicable, to vote or cause to be voted the amount ofShares or other Deposited Securities represented by that numberof American Depositary Shares in accordance with theinstructions set forth in such request. The Depositary shall notvote or attempt to exercise the right to vote that attaches tothe Shares or other Deposited Securities, other than inaccordance with such instructions or as provided below.
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     In order to give Owners a reasonable opportunity to instruct theDepositary as to the exercise of voting rights relating toDeposited Securities, if the Company will request the Depositaryto act under Section 4.07 of the Deposit Agreement, theCompany shall notify the Depositary of a meeting of holders ofDeposited Securities and of details concerning the matters to bevoted upon not less than 45 days prior to the meeting date.     Subject to the following paragraph, if (i) the Companyrequested the Depositary to act under Section 4.07 of theDeposit Agreement and complied with the immediately precedingparagraph, (ii) the Depositary received a Recommendationbefore it mailed a notice to Owners under that Section 4.07and (iii) no specific voting instructions are received bythe Depositary from an Owner (to whom a notice was sent by theDepositary) with respect to an amount of Deposited Securitiesrepresented by that Owner’s American Depositary Shares,such Owner shall be deemed, and the Depositary shall deem suchOwner, to have instructed the Depositary to give a proxy to theProxy Bank to vote that amount of Deposited Securities inaccordance with Section 135 of the German Stock CorporationAct, exceptthat no such deemed instruction shallbe deemed given and no discretionary proxy shall be given withrespect to any matter as to which the Company informs theDepositary (and the Company agrees to provide such informationpromptly in writing, if applicable) that (x) the Companydoes not wish such proxy given, (y) substantial oppositionexists or (z) the matter would materially affect the rightsof holders of Shares.     Notwithstanding anything to the contrary contained herein, inthe event that the Proxy Bank shall fail or decline to supplythe Recommendation to the Depositary before the Depositary mailsa notice to Owners under Section 4.07 of the DepositAgreement, the Depositary shall deliver the above-referencednotice (which shall not contain the Recommendation or theindication concerning the proxy to be given to the Proxy Bank)to the Owners as hereinabove provided, and, thereafter, in anycase in which no specific voting instructions are received bythe Depositary from a Owner on or before theInstruction Date with respect to a number of DepositedSecurities, no votes shall be cast at such meeting with respectto that number of Deposited Securities.     There can be no assurance that Owners generally or any Owner inparticular will receive the notice described in the precedingparagraph sufficiently prior to the instruction date to ensurethat the Depositary will vote the Shares or Deposited Securitiesin accordance with the provisions of Section 4.07 of theDeposit Agreement.**17. CHANGES AFFECTING DEPOSITED SECURITIES.**     Upon any change in nominal value, change in par value, split-up,consolidation, or any other reclassification of DepositedSecurities, or upon any recapitalization, reorganization, mergeror consolidation, or sale of assets affecting the Company or towhich it is a party, or upon the redemption or cancellation bythe Company of the Deposited Securities, any securities, cash orproperty which shall be received by the Depositary or aCustodian in exchange for, in conversion of, in lieu of or inrespect of Deposited Securities shall be treated as newDeposited Securities under the Deposit Agreement, and AmericanDepositary Shares shall thenceforth represent, in addition tothe existing Deposited Securities, the right to receive the newDeposited Securities so received, unless additional Receipts aredelivered pursuant to the following sentence. In any such casethe Depositary may execute and deliver additional Receipts as inthe case of a dividend in Shares, or call for the surrender ofoutstanding Receipts to be exchanged for new Receiptsspecifically describing such new Deposited Securities.**18. LIABILITY OF THE COMPANY AND DEPOSITARY.**     Neither the Depositary nor the Company nor any of theirrespective directors, employees, agents or affiliates shallincur any liability to any Owner or holder, (i) if byreason of any provision of any present or future law orregulation of the United States or any other country, or of anygovernmental or regulatory authority, or by reason of anyprovision, present or future, of the Articles of Association(Satzung) of the Company, or by reason of any provisionof any securities issued or distributed by the Company, or anyoffering or distribution thereof, or by reason of any act of Godor war or terrorism or other circumstances beyond its control,the Depositary or the Company shall be prevented, delayed orforbidden from or be subject to any civil or criminal penalty onaccount of doing or performing any act or thing which by theterms of the Deposit Agreement or Deposited Securities it isprovided shall be done or performed, (ii) by reason of anynon-performance or delay, caused as aforesaid, in the
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performance of any act or thing which by the terms of theDeposit Agreement it is provided shall or may be done orperformed, (iii) by reason of any exercise of, or failureto exercise, any discretion provided for in the DepositAgreement, (iv) for the inability of any Owner or holder tobenefit from any distribution, offering, right or other benefitwhich is made available to holders of Deposited Securities butis not, under the terms of the Deposit Agreement, made availableto Owners or holders, or (v) for any special, consequentialor punitive damages for any breach of the terms of the DepositAgreement. Where, by the terms of a distribution pursuant toSection 4.01, 4.02 or 4.03 of the Deposit Agreement, or anoffering or distribution pursuant to Section 4.04 of theDeposit Agreement, such distribution or offering may not be madeavailable to Owners of Receipts, and the Depositary may notdispose of such distribution or offering on behalf of suchOwners and make the net proceeds available to such Owners, thenthe Depositary shall not make such distribution or offering, andshall allow any rights, if applicable, to lapse. Neither theCompany nor the Depositary assumes any obligation or shall besubject to any liability under the Deposit Agreement to Ownersor holders, except that they agree to perform their obligationsspecifically set forth in the Deposit Agreement withoutnegligence or bad faith. The Depositary shall not be subject toany liability with respect to the validity or worth of theDeposited Securities. Neither the Depositary nor the Companyshall be under any obligation to appear in, prosecute or defendany action, suit, or other proceeding in respect of anyDeposited Securities or in respect of the American DepositaryShares, on behalf of any Owner or holder or other person.Neither the Depositary nor the Company shall be liable for anyaction or nonaction by it in reliance upon the advice of orinformation from legal counsel, accountants, any personpresenting Shares for deposit, any Owner or holder, or any otherperson believed by it in good faith to be competent to give suchadvice or information. The Depositary shall not be responsiblefor any failure to carry out any instructions to vote any of theDeposited Securities or for the manner in which any such vote iscast or the effect of any such vote, provided that any suchaction or nonaction is in good faith. The Depositary shall notbe liable for any acts or omissions made by a successordepositary whether in connection with a previous act or omissionof the Depositary or in connection with a matter arising whollyafter the removal or resignation of the Depositary, providedthat in connection with the issue out of which such potentialliability arises, the Depositary performed its obligationswithout negligence or bad faith while it acted as Depositary. Nodisclaimer of liability under the Securities Act of 1933 isintended by any provision of the Deposit Agreement.**19. ****RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF    SUCCESSOR CUSTODIAN.**     The Depositary may at any time resign as Depositary under theDeposit Agreement by written notice of its election so to dodelivered to the Company, such resignation to take effect uponthe earlier of (i) the appointment of a successordepositary and its acceptance of such appointment as provided inthe Deposit Agreement or (ii) termination by the Depositarypursuant to Section 6.02 of the Deposit Agreement. TheDepositary may at any time be removed by the Company by120 days prior written notice of such removal, to becomeeffective upon the later of (i) the 120th day afterdelivery of the notice to the Depositary and (ii) theappointment of a successor depositary and its acceptance of suchappointment as provided in the Deposit Agreement. The Depositaryin its discretion may appoint a substitute or additionalcustodian or custodians.**20. AMENDMENT.**     The form of the Receipts and any provisions of the DepositAgreement may at any time and from time to time be amended byagreement between the Company and the Depositary without theconsent of Owners or holders in any respect which they may deemnecessary or desirable. Any amendment which shall impose orincrease any fees or charges (other than taxes and othergovernmental charges, registration fees, cable, telex orfacsimile transmission costs, delivery costs or other suchexpenses), or which shall otherwise prejudice any substantialexisting right of Owners, shall, however, not become effectiveas to outstanding American Depositary Shares until theexpiration of 30 days after notice of such amendment shallhave been given to the Owners of outstanding American DepositaryShares. Every Owner and holder of American Depositary Shares, atthe time any amendment so becomes effective, shall be deemed, bycontinuing to hold such American Depositary Shares or anyinterest therein, to consent and agree to such amendment and tobe bound by the Deposit Agreement as amended thereby. In noevent shall any amendment impair the right of the Owner tosurrender American
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Depositary Shares and receive therefor the Deposited Securitiesrepresented thereby, except in order to comply with mandatoryprovisions of applicable law.**21. TERMINATION OF DEPOSIT AGREEMENT.**     The Company may terminate the Deposit Agreement by instructingthe Depositary to mail notice of termination to the Owners ofall American Depositary Shares then outstanding at least30 days prior to the termination date included in suchnotice. The Depositary may likewise terminate the DepositAgreement, if at any time 60 days shall have expired afterthe Depositary delivered to the Company a written resignationnotice and if a successor depositary shall not have beenappointed and accepted its appointment as provided in theDeposit Agreement; in such case the Depositary shall mail anotice of termination to the Owners of all American DepositaryShares then outstanding at least 30 days prior to thetermination date. On and after the date of termination, theOwner of American Depositary Shares will, upon(a) surrender of such American Depositary Shares,(b) payment of the fee of the Depositary for the surrenderof American Depositary Shares referred to in Section 2.05,and (c) payment of any applicable taxes or governmentalcharges, be entitled to delivery, to him or upon his order, ofthe amount of Deposited Securities represented by those AmericanDepositary Shares. If any American Depositary Shares shallremain outstanding after the date of termination, the Depositarythereafter shall discontinue the registration of transfers ofAmerican Depositary Shares, shall suspend the distribution ofdividends to the Owners thereof, and shall not give any furthernotices or perform any further acts under the Deposit Agreement,except that the Depositary shall continue to collect dividendsand other distributions pertaining to Deposited Securities,shall sell rights and other property as provided in the DepositAgreement, and shall continue to deliver Deposited Securities,together with any dividends or other distributions received withrespect thereto and the net proceeds of the sale of any rightsor other property, upon surrender of American Depositary Shares(after deducting, in each case, the fee of the Depositary forthe surrender of American Depositary Shares, any expenses forthe account of the Owner of such American Depositary Shares inaccordance with the terms and conditions of the DepositAgreement, and any applicable taxes or governmental charges). Atany time after the expiration of four months from the date oftermination, the Depositary may sell the Deposited Securitiesthen held under the Deposit Agreement and may thereafter holduninvested the net proceeds of any such sale, together with anyother cash then held by it thereunder, unsegregated and withoutliability for interest, for the pro rata benefit of the Ownersof American Depositary Shares that have not theretofore beensurrendered, such Owners thereupon becoming general creditors ofthe Depositary with respect to such net proceeds. After makingsuch sale, the Depositary shall be discharged from allobligations under the Deposit Agreement, except to account forsuch net proceeds and other cash (after deducting, in each case,the fee of the Depositary for the surrender of AmericanDepositary Shares, any expenses for the account of the Owner ofsuch American Depositary Shares in accordance with the terms andconditions of the Deposit Agreement, and any applicable taxes orgovernmental charges). Upon the termination of the DepositAgreement, the Company shall be discharged from all obligationsunder the Deposit Agreement except for its obligations to theDepositary with respect to indemnification, charges, andexpenses.**22. DTC DIRECT REGISTRATION SYSTEM AND PROFILEMODIFICATION SYSTEM.**     (a)   Notwithstanding the provisions ofSection 2.04 of the Deposit Agreement, the partiesacknowledge that the Direct Registration System(“DRS”) and Profile Modification System(“Profile”) shall apply to uncertificated AmericanDepositary Shares upon acceptance thereof to DRS by DTC. DRS isthe system administered by DTC pursuant to which the Depositarymay register the ownership of uncertificated American DepositaryShares, which ownership shall be evidenced by periodicstatements issued by the Depositary to the Owners entitledthereto. Profile is a required feature of DRS which allows a DTCparticipant, claiming to act on behalf of an Owner, to directthe Depositary to register a transfer of those AmericanDepositary Shares to DTC or its nominee and to deliver thoseAmerican Depositary Shares to the DTC account of that DTCparticipant without receipt by the Depositary of priorauthorization from the Owner to register such transfer.     (b)   In connection with and in accordance withthe arrangements and procedures relating to DRS/ Profile, theparties understand that the Depositary will not verify,determine or otherwise ascertain that the DTC participant whichis claiming to be acting on behalf of an Owner in requestingregistration of transfer and delivery
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described in subsection (a) has the actual authority to acton behalf of the Owner (notwithstanding any requirements underthe Uniform Commercial Code). For the avoidance of doubt, theprovisions of Sections 5.03 and 5.08 of the DepositAgreement shall apply to the matters arising from the use of theDRS. The parties agree that the Depositary’s reliance onand compliance with instructions received by the Depositarythrough the DRS/ Profile System and in accordance with theDeposit Agreement, shall not constitute negligence or bad faithon the part of the Depositary.**23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVEROF IMMUNITIES.**     In the Deposit Agreement, the Company has (i) appointed,Fresenius Medical Care Holdings, Inc., 920 Winter Street,Waltham, MA 02451-1457, Attn: General Counsel, as theCompany’s authorized agent upon which process may be servedin any suit or proceeding arising out of or relating to theShares or Deposited Securities, the American Depositary Shares,the Receipts or this Agreement, (ii) consented andsubmitted to the jurisdiction of any state or federal court inthe State of New York in which any such suit or proceeding maybe instituted, and (iii) agreed that service of processupon said authorized agent shall be deemed in every respecteffective service of process upon the Company in any such suitor proceeding.     EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OFDOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAYHAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDINGAGAINST THE COMPANY AND/ OR THE DEPOSITARY DIRECTLY ORINDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHERDEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THERECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATEDHEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDINGWITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY ORTERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHERTHEORY).     To the extent that the Company or any of its properties, assetsor revenues may have or hereafter become entitled to, or haveattributed to it, any right of immunity, on the grounds ofsovereignty or otherwise, from any legal action, suit orproceeding, from the giving of any relief in any respectthereof, from setoff or counterclaim, from the jurisdiction ofany court, from service of process, from attachment upon orprior to judgment, from attachment in aid of execution orjudgment, or other legal process or proceeding for the giving ofany relief or for the enforcement of any judgment, in anyjurisdiction in which proceedings may at any time be commenced,with respect to its obligations, liabilities or any other matterunder or arising out of or in connection with the Shares orDeposited Securities, the American Depositary Shares, theReceipts or the Deposit Agreement, the Company, to the fullestextent permitted by law, hereby irrevocably and unconditionallywaives, and agrees not to plead or claim, any such immunity andconsents to such relief and enforcement.**24. DISCLOSURE OF INTERESTS**     Each Owner of American Depositary Shares and all persons owningbeneficial interests in American Depositary Shares agree tocomply with all applicable provisions of German law and theCompany’s Articles of Association regarding thenotification of such person’s interest in the Shares, whichprovisions at the date of the Deposit Agreement includeSections 21 and 22 of the Securities Trading Act(*Wertpapierhandelsgesetz*). At the date of the DepositAgreement, (i) the statutory notification obligations ofthe Securities Trading Act apply to anyone whose holding, eitherdirectly or by way of imputation pursuant to the provisions ofSection 22 of the Securities Trading Act, of voting rightsin the Company reaches or exceeds 5%, 10%, 25%, 50% or 75% or,after having reached or exceeded any such threshold, falls belowthat threshold. Effective as of January 20, 2007, therelevant thresholds will be 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50%and 75% and the notification obligations will also apply tooption agreements (excluding the 3% threshold). Each beneficialowner of American Depositary Shares acknowledges that failure toprovide on a timely basis any required notification of aninterest in Shares may result in withholding of certain rights,including voting and dividend rights, in respect of the Sharesin which such beneficial owner of American Depositary Shares hasan interest. In connection therewith, the Company reserves theright to instruct Owners to surrender their American DepositaryShares for the purpose of withdrawal of the Deposited Securitiesso as to permit the Company to deal directly with the Ownerthereof as
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an owner of Shares. The Depositary agrees to cooperate with theCompany in its efforts to inform Owners of the Company’sexercise of its rights under this Section 3.04 of theDeposit Agreement and agrees to consult with, and providereasonable assistance without risk, liability or expense on thepart of the Depositary, to the Company on the manner or mannersin which it may enforce such rights with respect to any Owner.
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