As filed with the Securities and Exchange Commission on
February 5, 2003 Registration No. 333-11642
====================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 AS Amended FOR DEPOSITARY SHARES EVIDENCED BY
DEPOSITARY RECEIPTS
--------------
INTERSHOP Communications Aktiengesellschaft
(Exact name of issuer of deposited securities as specified in its charter)
------------------------
INTERSHOP COMMUNICATIONS STOCK CORPORATION
(Translation of issuer's name into English)
---------------------
FEDERAL REPUBLIC OF GERMANY
(Jurisdiction of incorporation or organization of issuer)
---------------------
CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
------------------------------
111 Wall Street
New York, New York 10043
(212) 657-5100
(Address, including zip code, and telephone number, including
area code, of Depositary's principal executive offices)
------------------------------
CT Corporation System
111 Eighth Avenue
New York, New York 10011
212) 894-8940
(Name, address, including zip code, and telephone number, including
area code of agent for service)
--------------------------------
Copies to:
John W. Campbell, Esq. Frettra M. Miller, Esq.
Morrison & Foerster LLP Citibank, N.A.
425 Market Street 111 Wall Street 15th Floor Zone9
San Francisco, California 94105 New York, New York 10043
Telephone: (415) 268-7197 Telephone: (212) 657-2150
--------------------------------
It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box |_|.
This Post-Effective Amendment No. 2 to the Registration
Statement on Form F-6 (Commission File No. 333-11642) may
be executed in any number of counterparts, each of which
shall be deemed an original, and all of such counterparts
together shall constitute one and the same instrument.
PART I
INFORMATION REQUIRED IN PROSPECTUS
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
CROSS REFERENCE SHEET
Item Number and Caption Location in Form of
-----------------------
American Depositary
Receipt ("Receipt")
Filed Herewith as
Prospectus
----------------------
1. Name and address of Depositary Face of Receipt - Introductory
----------------
Paragraph.
2. Title of Receipts and identity Face of Receipt - Top center
---------------
of deposited securities and Introductory Paragraph.
Terms of Deposit:
(i) The amount of deposited Face of Receipt - Upper right
------------------
securities represented by corner, introductory paragraph
one American Depositary
Share
(ii) The procedure for voting, Reverse of Receipt - Paragraphs
------------------
if any, the deposited (16) and (17).
securities
(iii)The collection and Reverse of Receipt - Paragraph
------------------
distribution of dividends (14)
(iv) The transmission of Face of Receipt - Paragraphs
----------------
notices, reports and proxy (13) and (16).
soliciting material
(v) The sale or exercise of Reverse of Receipt - Paragraphs
------------------
rights (14) and (16).
(vi) The deposit or sale of Reverse of Receipt - Paragraphs
-------------------
securities resulting (14) and (18).
from dividends, splits or
plans of reorganization
(vii)Amendment, extension or Reverse of Receipt - Paragraphs
-------------------
termination of the deposit (22) and (23) (no provision for
agreement extension).
(viii)Rights of holders of Face of Receipt - Paragraph
----------------
Receipts to inspect the (13).
transfer books of the
depositary and the list of
holders of Receipts
(ix) Restrictions upon the right Face of Receipt - Paragraphs
---------------
to deposit or withdraw the (2), (3), (4), (6), (7) and (9).
underlying securities
(x) Limitation upon the Face of Receipt - Paragraph 7
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liability of the depositary Reverse of Receipt - Paragraphs
------------------
(19) and (20);
3. Fees and charges which may be Face of Receipt - Paragraph (10)
---------------
imposed directly or indirectly
against holders of Receipts
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraph (13)
---------------
2(a). Intershop Communications AG is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended, and,
accordingly, files certain reports with the Securities and Exchange Commission
(the "Commission"). These reports and other information can be inspected and
copied at the public reference facility maintained by the Commission located at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
PROSPECTUS
The Prospectus consists of the Form of American Depositary
Receipt, included as Exhibit A to the Form of Amendment No. 2
to Deposit Agreement filed as Exhibit (a)(i) to this
Post-Effective Amendment No. 2 to Form F-6 Registration
Statement and incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a)(i) Form of Amendment No. 2 to Deposit Agreement, by and among
Intershop Communications AG, a Stock Corporation (Aktiengesellschaft) organized
under the laws of Germany and its successors (the "Company"), Citibank, N.A., a
national banking association organized under the laws of the United States of
America and acting solely as depositary (the "Depositary"), and all Holders and
Beneficial Owners of American Depositary Shares ("ADSs"), evidenced by American
Depositary Receipts ("ADRs"), issued thereunder including the amended Form of
ADR to be issued thereunder. Filed herewith as Exhibit (a)(i).
(a)(ii) Amendment No. 1 to Deposit Agreement, dated as of
February 25, 2002, by and among the Company, the Depositary, and all Holders
and Beneficial Owners of ADRs, evidencing ADSs, issued thereunder. Filed
herewith as Exhibit (a)(ii).
(a)(iii) Deposit Agreement, dated as of September 29, 2000, by
and among the Company, the Depositary, and all Holders and Beneficial Owners of
ADSs, evidenced by ADRs, issued thereunder, (including the form of American
Depositary Receipt to be issued thereunder).*
(b) Any other agreement, to which the Depositary is a party
relating to the issuance of the American Depositary Shares registered hereby or
the custody of the deposited securities represented thereby. - None.
(c) Every material contract relating to the deposited
securities between the Depositary and the Company in effect within the last
three years. - None.
(d) Opinion of counsel to the Depositary, as to the
legality of the securities to be registered.*
(e) Power of Attorney for the Company.*
(f) Rule 466 Certification - Filed herewith as Exhibit (f).
Item 4. UNDERTAKINGS
a) The Depositary hereby undertakes to make available at the principal office of
the Depositary in the United States, for inspection by holders of the ADRs, any
reports and communications received from the issuer of the deposited securities
which are both (1) received by the Depositary as the holder of the deposited
securities, and (2) made generally available to the holders of the underlying
securities by the issuer.
b) The Depositary hereby undertakes to prepare a separate document stating the
amount of any fee charged and describing the service for which it is charged and
to deliver promptly a copy of such fee schedule without charge to anyone upon
request. The Depositary undertakes to notify each registered holder of an ADR at
least thirty (30) days before any change in the fee schedule.
--------------------------------------------------------------------------------
*Previously filed and incorporated by reference to Registration Statement No.
333-11642
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as
amended, Citibank, N.A., on behalf of the legal entity created by the Deposit
Agreement dated as of September 29, 2000, as amended by Amendment No. 1 to
Deposit Agreement, dated as of February 25, 2002, as proposed to be amended by
the form of Amendment No. 2 to Deposit Agreement (as so amended, the "Deposit
Agreement") by and among Intershop Communications Stock Corporation, Citibank,
N.A., as depositary, and all Holders and Beneficial Owners of American
Depositary Shares ("ADSs"), evidenced by American Depositary Receipts ("ADRs"),
issued thereunder, certifies that it has reasonable grounds to believe that all
the requirements for filing on Form F-6 are met and has duly caused this
Post-Effective Amendment No. 2 to Form F-6 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 5th day of February, 2003.
Legal entity created by the Deposit
Agreement for the issuance of American
Depositary Receipts evidencing American
Depositary Shares each representing one
(1) Bearer Ordinary Share, no par value,
of Intershop Communications Stock
Corporation, as amended by Amendment
No. 1 to Deposit Agreement and proposed
to be further amended by Form of
Amendment No. 2 to Deposit Agreement.
CITIBANK, N.A., as Depositary
By: /s/ Jo An Ward
----------------------------------
Name: Jo Ann Ward
Title: Vice President
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, INTERSHOP Communications Stock Corporation certifies that it has
reasonable grounds to believe that all the requirements for filing on Form F-6
are met and has duly caused this Post-Effective Amendment No. 2 to Form F-6
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Fina, on the 30th day of January, 2003.
INTERSHOP Communications Stock Corporation
By: /s/ Stephan Schambach
-----------------------------------
Name: Stephan Schambach
Title: Chairman of the Management
Board,
Chief Executive Officer and
Vorstandsversitzender
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 2 to Form F-6 Registration Statement
has been signed by the following persons in the capacities indicated on the
dates indicated.
Signatures Title Date
Chairman of the Management January 30, 2003
/s/ Stephan Schambach Board, Chief Executive
---------------------
Stephan Schambach Officer
Signature of Authorized Representative of the Registrant
Pursuant to the requirements of the Securities Act of 1933, the
undersigned, the duly authorized representative in the United States of the
registrant, has signed this Registration Statement on Form F-6, or amendment
thereto, in his capacity as an authorized officer of INTERSHOP Communications
Stock Corporation in ________________on February 3, 2003.
INTERSHOP COMMUNICATIONS STOCK CORPORATION
By: /s/ Gary Di Orio
------------------------------
Name: Gary Di Orio
Title: President
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(a)(i) Form of Amendment No. 2
to Deposit Agreement
(a)(ii) Amendment No. 1 to
Deposit Agreement, dated
February 25, 2002
(f) Rule 466 Certification
(a)(i) Form of Amendment No. 2 to Deposit Agreement
INTERSHOP Communications Stock Corporation
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
--------------------------------
Amendment No. 2
to
Deposit Agreement
Dated as of ___________, 2003
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT, is made as of ___________, 2003
(the "Amendment"), by and among INTERSHOP Communications AG, a Stock Corporation
(Aktiengesellschaft) organized under the laws of Germany and its successors (the
"Company"), CITIBANK, N.A., a national banking association organized under the
laws of the United States of America and acting solely as depositary (the
"Depositary"), and all Holders and Beneficial Owners of American Depositary
Shares evidenced by American Depositary Receipts issued under the Deposit
Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Deposit
Agreement, dated as of September 29, 2000 as amended by Amendment No. 1 to
Deposit Agreement, dated as of February 25, 2002, as so amended (the "Deposit
Agreement"), to establish a facility to provide for the deposit of the Company's
Bearer Ordinary Shares no par value (the "Shares") and the creation of American
Depositary Receipts ("ADRs"), evidencing American Depositary Shares ("ADSs"),
representing the Shares so deposited and for the execution and delivery of such
ADRs evidencing such ADSs;
WHEREAS, the Company has elected to change the ratio of Shares to ADSs
(as set forth in Section 1.2 of the Deposit Agreement) from (i) five (5) Shares
to one (1) ADS to (ii) one (1) Share to one (1) ADS, and desires to amend the
Deposit Agreement to effect such change; and,
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the Form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
-----------
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
-------------------------------
SECTION 2.01. Deposit Agreement. All references in the Deposit
-----------------
Agreement to the term "Deposit Agreement" shall, as of the Effective Date (as
herein defined), refer to the Deposit Agreement, dated as of September 29, 2000,
as amended by Amendment No. 1 to Deposit Agreement, dated as of February 25,
2002, and as further amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Deposit
---------------
Agreement to each ADS representing five (5) Shares shall, as of the Effective
Date (as defined herein), refer to each ADS representing one (1) Share.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. Change of Ratio. All references in the ADRs issued and
---------------
outstanding as of the Effective Date made to each ADS representing five (5)
Shares shall as of the Effective Date (as defined herein) refer to each ADS
representing one (1) Share.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties. The Company
------------------------------
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence in Germany of this Amendment or the Deposit
Agreement as amended hereby, and any other document furnished hereunder
or thereunder, as of the date hereof, neither of such agreements need
to be filed or recorded with any court or other authority in Germany,
nor does any stamp or similar tax need to be paid in Germany on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. Effective Date. This Amendment is dated as of the
---------------
date set forth above and shall be effective as of such date (the "Effective
Date").
SECTION 5.02. New Receipts. From and after the Effective Date, the
------------
Depositary shall arrange to have new ADRs printed or amended that reflect the
change to the form of Receipt effected by this Amendment. All Receipts issued
hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
change to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
------------------------------
directed to send notices informing the Holders of: (i) the terms of this
Amendment; (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
---------------
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the
------------
terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
SECTION 5.06. Counterparts. This Amendment may be executed in two or
------------
more parts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
INTERSHOP COMMUNICATIONS AG
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CITIBANK, N.A., as Depositary
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(a)(ii) Amendment No. 1 to Deposit Agreement, dated February 25, 2002
INTERSHOP Communications Stock Corporation
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
------------------------------
Amendment No. 1
to
Deposit Agreement
Dated as of February 25, 2002
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO.1 TO DEPOSIT AGREEMENT, is made as of February 25, 2002
(the "Amendment"), by and among INTERSHOP Communications AG a
(Aktiengesellschaft), a Stock Corporation organized and existing under the laws
of Germany and its successors (the "Company"), CITIBANK, N.A., a national
banking association organized under the laws of the United States of America and
acting solely as depositary (the "Depositary"), and all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued under the Deposit Agreement.
WITNESSETH THAT
WHEREAS, the parties hereto entered into that certain Deposit Agreement,
dated as of September 29, 2000 (the "Deposit Agreement"), to establish a
facility to provide for the deposit of the Company's Bearer Ordinary Shares no
par value (the "Shares") and the creation of American Depositary Receipts
("ADRs"), evidencing American Depositary Shares ("ADSs"), representing the
Shares so deposited and for the execution and delivery of such ADRs evidencing
such ADSs;
WHEREAS, the Company has elected to change the ratio of Shares to ADSs
(as set forth in Section 1.2 of the Deposit Agreement) from (i) one (1) Share to
two (2) ADSs to (ii) five (5) Shares to one (1) ADS, and desires to amend the
Deposit Agreement to effect such change; and,
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the Form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
-------------
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
-----------
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
-------------------------------
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
-----------------
defined), refer to the Deposit Agreement, dated as of September 29, 2000, and as
amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Deposit
---------------
Agreement to two (2) ADSs representing one (1) Share shall, as of the Effective
Date (as defined herein), refer to one (1) ADS representing five (5) Shares.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. Change of Ratio. All references in the ADRs issued and
---------------
outstanding as of the Effective Date made to two (2) ADSs representing one (1)
Share shall as of the Effective Date (as defined herein) refer to one (1) ADS
representing five (5) Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01. Representations and Warranties. The Company
-------------------------------
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence in Germany of this Amendment or the Deposit
Agreement as amended hereby, and any other document furnished hereunder
or thereunder, as of the date hereof, neither of such agreements need
to be filed or recorded with any court or other authority in Germany,
nor does any stamp or similar tax need to be paid in Germany on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
---------------
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. New Receipts. From and after the Effective Date, the
------------
Depositary shall arrange to have new ADRs printed or amended that reflect the
change to the form of Receipt effected by this Amendment. All Receipts issued
hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
change to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
------------------------------
directed to send notices informing the Holders of: (i) the terms of this
Amendment; (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
---------------
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the
-------------
terms, covenants and conditions of the Deposit Agreement as originally executed
shall remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
INTERSHOP COMMUNICATIONS AG
By: /s/ Stephan Schambach
------------------------------------
Name: Stephan Schambach
-----------------------------------
Title: CEO
---------------------------------
CITIBANK, N.A., as Depositary
By: /s/ Brian Teitelbaum
------------------------------------
Name: Brian Teitelbaum
-----------------------------------
Title: Vice President
--------------------------------
(a)(ii) Amendment No. 1 to Deposit Agreement, dated February 25, 2002
(f) Rule 466 Certification
CERTIFICATION UNDER RULE 466
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a Registration Statement on Form F-6
(Registration No. 333-11642), which the Commission declared effective
with terms of deposit identical to the terms of this Post-Effective
Amendment No. 2 to this Form F-6 Registration Statement except for the
number of foreign securities a Depositary Share represents.
(2) That its ability to designate the date and time of effectiveness
under Rule 466 has not been suspended.
Citibank, N.A., as Depositary
By: /s/ Frettra M. Miller
------------------------------------
Name: Frettra M. Miller
Title: Vice President and Senior
Counsel