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EXHIBIT 4.2
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JUPITER TELECOMMUNICATIONS CO., LTD.
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of ________ __, 2000
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS...................................................................1
SECTION 1.1 American Depositary Shares.............................................1
SECTION 1.2 Appropriate Officer....................................................2
SECTION 1.3 Article; Section.......................................................2
SECTION 1.4 Commission.............................................................2
SECTION 1.5 Consultation...........................................................2
SECTION 1.6 Custodian..............................................................2
SECTION 1.7 Deposit Agreement......................................................2
SECTION 1.8 Depositary; Corporate Trust Office.....................................2
SECTION 1.9 Deposited Securities...................................................3
SECTION 1.10 Dollars; Yen...........................................................3
SECTION 1.11 Foreign Currency.......................................................3
SECTION 1.12 Foreign Registrar......................................................3
SECTION 1.13 Issuer.................................................................3
SECTION 1.14 Owner..................................................................3
SECTION 1.15 Receipts...............................................................3
SECTION 1.16 Registrar..............................................................3
SECTION 1.17 Restricted Securities..................................................4
SECTION 1.18 Securities Act of 1933.................................................4
SECTION 1.19 Shares.................................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS...................................................4
SECTION 2.1 Form and Transferability of Receipts...................................4
SECTION 2.2 Deposit of Shares......................................................5
SECTION 2.3 Execution and Delivery of Receipts.....................................6
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.............7
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.........................7
SECTION 2.6 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts..................................................8
SECTION 2.7 Lost Receipts, etc.....................................................9
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts..................10
SECTION 2.9 Pre-Release of Receipts...............................................10
SECTION 2.10 Maintenance of Records................................................11
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS....................................11
SECTION 3.1 Filing Proofs, Certificates and Other Information.....................11
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SECTION 3.2 Liability of Owner for Taxes..........................................11
SECTION 3.3 Warranties on Deposit of Shares.......................................12
SECTION 3.4 Disclosure of Interests...............................................12
SECTION 3.5 Disclosure of Beneficial Ownership....................................12
ARTICLE 4. THE DEPOSITED SECURITIES.....................................................14
SECTION 4.1 Cash Distributions....................................................14
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.......................14
SECTION 4.3 Distributions in Shares...............................................15
SECTION 4.4 Rights................................................................15
SECTION 4.5 Conversion of Foreign Currency........................................17
SECTION 4.6 Fixing of Record Date.................................................18
SECTION 4.7 Voting of Deposited Securities........................................19
SECTION 4.8 Changes Affecting Deposited Securities................................20
SECTION 4.9 Reports...............................................................20
SECTION 4.10 Lists of Owners.......................................................21
SECTION 4.11 Withholding...........................................................21
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER................................21
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary............21
SECTION 5.2 Prevention or Delay in Performance by the Depositary or
the Issuer............................................................22
SECTION 5.3 Obligations of the Depositary, the Custodian and the
Issuer................................................................22
SECTION 5.4 Resignation and Removal of the Depositary.............................23
SECTION 5.5 The Custodians........................................................24
SECTION 5.6 Notices and Reports...................................................25
SECTION 5.7 Distribution of Additional Shares, Rights, etc........................25
SECTION 5.8 Indemnification.......................................................26
SECTION 5.9 Charges of Depositary.................................................27
SECTION 5.10 Retention of Depositary Documents.....................................28
SECTION 5.11 Exclusivity...........................................................28
SECTION 5.12 List of Restricted Securities Owners..................................29
SECTION 5.13 Withholding of Japanese Tax...........................................29
ARTICLE 6. AMENDMENT AND TERMINATION....................................................29
SECTION 6.1 Amendment.............................................................29
SECTION 6.2 Termination...........................................................29
ARTICLE 7. MISCELLANEOUS................................................................30
SECTION 7.1 Counterparts..........................................................31
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SECTION 7.2 No Third Party Beneficiaries..........................................31
SECTION 7.3 Severability..........................................................31
SECTION 7.4 Holders and Owners as Parties; Binding Effect.........................31
SECTION 7.5 Notices...............................................................31
SECTION 7.6 Governing Law.........................................................32
SECTION 7.7 Compliance with U.S. Securities Laws..................................32
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for
Service of Process....................................................32
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 2000, among JUPITER
TELECOMMUNICATIONS CO., LTD., incorporated under the laws of Japan (together
with its successors, herein called the "Issuer"), THE BANK OF NEW YORK, a New
York banking corporation as depositary (herein called the "Depositary"), and all
Owners and holders from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H
WHEREAS, the Issuer desires to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined), as agent of the Depositary, for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially
in the form of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and among the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent
one-fiftieth of a Share, until there shall occur a distribution upon Deposited
Securities covered by Section 4.3 or a change in Deposited Securities covered by
Section 4.8 with respect to which additional Receipts are not executed and
delivered, and thereafter American Depositary Shares shall evidence the amount
of Shares or Deposited Securities specified in such Sections.
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SECTION 1.2 Appropriate Officer.
The term "Appropriate Officers" shall mean the Issuer's Chief
Executive Officer, President, Chief Operating Officer, Chief Financial Officer,
or any Vice President, or such position having the responsibilities and duties
otherwise associated with such offices, or any other person as so may be
designated by the Issuer in writing to the Depositary.
SECTION 1.3 Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.4 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.5 Consultation.
The term "Consultation" shall mean the good faith attempt by the
Depositary to discuss, if practicable, the relevant issue in a timely manner
with an Appropriate Officer.
SECTION 1.6 Custodian.
The term "Custodian" shall mean the Tokyo main office of
Sumitomo Bank, as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.7 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.8 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx
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Xxxx, 00000.
SECTION 1.9 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares
at such time deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.5.
SECTION 1.10 Dollars; Yen.
The term "Dollars" shall mean United States dollars, the legal
currency of the United States. The term "Yen" shall mean Japanese Yen, the legal
currency of Japan.
SECTION 1.11 Foreign Currency.
The term "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean The Sumitomo Trust and
Banking Company, Limited, the entity that presently carries out the duties of
registrar for the Shares, or any successor thereto as registrar for the Shares
as appointed by the Issuer and any other appointed agent of the Issuer for the
transfer and registration of Shares.
SECTION 1.13 Issuer.
The term "Issuer" shall mean Jupiter Telecommunications Co.,
Ltd., incorporated under the laws of Japan, and its successors.
SECTION 1.14 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.15 Receipts.
The term "Receipts" shall mean the American Depositary Receipts,
substantially in the form of Exhibit A attached hereto, issued hereunder
evidencing American Depositary Shares.
SECTION 1.16 Registrar.
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The term "Registrar" shall mean any bank or trust company having
an office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided, or
any other firm or corporation which may hereafter be appointed, after
Consultation with the Issuer, as substitute or additional registrar or
co-registrars hereunder, as the context shall require and shall also mean all of
them collectively. Initially, the Registrar shall be the Depositary.
SECTION 1.17 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering or which are otherwise subject to resale limitations under Regulation D
or any other provision under that Act or both, or which are held by an officer,
director (or persons performing similar functions) or other affiliate of the
Issuer, or which are subject to other restrictions on sale, transfer or deposit
under the laws of the United States or Japan, or under a shareholder agreement
or the Articles of Incorporation of the Issuer.
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean ordinary shares in registered form
of the Issuer, without par value, heretofore or hereafter validly issued and
outstanding and fully paid, nonassessable and free of any pre-emptive rights of
the holders of outstanding Shares or interim certificates representing such
Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided, as may be modified from
time to time so as to comply to the requirement of any applicable rule or
regulation of any securities market or exchange upon which the American
Depositary Shares may be traded. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar
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for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts may, after Consultation with the Issuer, be endorsed
with or have incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of this Deposit Agreement as
may be required by the Depositary or required to comply with any applicable law
or regulations thereunder or with the rules and regulations of any securities
market or exchange upon which American Depositary Shares may be listed or to
conform with any usage with respect thereto, or to indicate any limitation or
restrictions on ownership of the Depositary which may be reflected in the
Issuer's organizational documents, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
or manner of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that the Issuer and the
Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes, and neither
the Issuer nor the Depositary will have any liability to any other owner or
person claiming to have an ownership interest therein.
SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form reasonably satisfactory to the
Custodian, together with all such certifications as may be required by the
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of American Depositary Shares representing such deposit. No fractional
Shares shall be accepted for deposit, except where fractional Shares are
deposited by the Issuer pursuant to the terms of this Deposit Agreement. No
Share
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shall be accepted for deposit unless accompanied by evidence reasonably
satisfactory to the Depositary that all conditions to such deposit under
Japanese laws and regulations have been satisfied by the person depositing such
Shares and any necessary approval has been granted by any governmental body in
Japan which is then performing the function of the regulation of currency
exchange or any other function which requires approval for the deposit of
Shares. If required by the Depositary, Shares presented for deposit at any time,
whether or not the transfer books of the Issuer or the Foreign Registrar, if
applicable, are closed, shall also be accompanied by an agreement or assignment,
or other instrument reasonably satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents above specified, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Issuer or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary, or at such other
place or places as the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section
2.2 hereunder (and in addition, if the shareholders' register of the Issuer or
the Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Issuer
that any Deposited Securities have been recorded upon the register of the Issuer
or the Foreign Registrar, if applicable, in the name of the Depositary or its
nominee or such Custodian or its nominee), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission. Upon receiving such notice from such
Custodian, or upon the
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receipt of Shares by the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver at its Corporate
Trust Office, to or upon the order of the person or persons entitled thereto, a
Receipt or Receipts, registered in the name or names and evidencing any
authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.9, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its transfer books
upon any surrender of a Receipt, by the Owner in person or by a duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
and duly stamped as may be required by the laws of the State of New York and of
the United States of America, all in accordance with procedures customarily
followed by stock transfer agents located in The City of New York. Thereupon the
Depositary shall execute a new Receipt or Receipts and deliver the same to or
upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, after Consultation with the Issuer, may appoint
one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence, reasonably satisfactory to such co-transfer agent, of
authority and compliance with applicable laws and other requirements by Owners
or persons entitled to Receipts and will be entitled to protection and indemnity
to the same extent as the Depositary under this Deposit Agreement.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of
a Receipt for the purpose of withdrawal of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of such whole
number of Shares and other Deposited
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Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of such Owner or as ordered by him or
by certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay. The Depositary shall not
accept for cancellation any number of American Depositary Shares which would
require the delivery of fractional Shares. If any American Depositary Shares are
surrendered but not cancelled pursuant to the preceding sentence, the Depositary
shall execute and deliver a Receipt or Receipts evidencing the balance of
American Depositary Shares not so cancelled to the person or persons
surrendering the same.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office in Tokyo of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds 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 the Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and
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Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presenter of the Receipt
of a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof reasonably satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may reasonably establish consistent with the provisions of this Deposit
Agreement, including, without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, in each case subject to the provisions of Section 7.7 hereof and
the following sentence. Notwithstanding any other provision of this Deposit
Agreement or the Receipts, the surrender of outstanding Receipts and withdrawal
of Deposited Securities may not be suspended except as permitted in General
Instruction I(A)(1) to Form F-6 (as may be amended from time to time) under the
Securities Act of 1933, which currently permits suspension only in connection
with (i) temporary delays caused by closing the transfer books of the Depositary
or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares required to
be registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or such sale would be
exempt from such provisions. The Depositary will, and will instruct the
Custodian to, comply with written instructions of the Issuer not to accept for
deposit under this Deposit Agreement any Shares identified in such instructions
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the compliance with U.S. securities laws by the Issuer.
SECTION 2.7 Lost Receipts, etc.
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In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by
the Depositary. Cancelled Receipts shall not be entitled to any benefits under
this Deposit Agreement or be valid or enforceable for any purpose. The
Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9 Pre-Release of Receipts.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Issuer, change
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such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to fulfill
its obligations to the Owners under the Deposit Agreement, the collateral
referred to in clause (b) above shall be held by the Depositary as security for
the performance of the Pre-Releasee's obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
The Issuer shall have no liability to any Owner with respect to
any representations, actions or omissions by the Depositary, the Custodian or
any of their agents pursuant to this Section 2.9.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all Receipts
surrendered and Deposited Securities withdrawn under Section 2.5, of substitute
Receipts delivered under Section 2.7 and of Receipts cancelled or destroyed
under Section 2.8, in keeping with procedures customarily followed by stock
transfer agents located in The City of New York.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem reasonably necessary
or proper. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or other distributions or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made.
Upon the written request of the Issuer, the Depositary shall
provide the Issuer in a timely manner copies of any such proofs and certificates
and such written representations and warranties that it receives pursuant to
this Section 3.1.
SECTION 3.2 Liability of Owner for Taxes.
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If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary. The Depositary may, and at the request of the Issuer
shall, refuse to effect any transfer of such Receipt (or any split up or
combination thereof) or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner of such Receipt
shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall
be deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized to do so. Every such person shall also be
deemed to represent that such Shares and the Receipts evidencing American
Depositary Shares representing such Shares are not restricted under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
SECTION 3.4 Disclosure of Interests.
The Issuer may from time to time request Owners or former Owners
to provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and the nature of such interest and various other
matters reasonably requested by the Issuer in order to comply with applicable
law.
Each Owner agrees to provide any information requested by the
Issuer or the Depositary with respect to such Owner pursuant to this Section 3.4
and such agreement shall survive any disposition of such Owner's interest in
Shares or Receipts. The Depositary agrees to comply with reasonable written
instructions received from the Issuer requesting that the Depositary forward any
such requests to the Owners and former Owners and to forward to the Issuer any
such responses to such requests received by the Depositary.
SECTION 3.5 Disclosure of Beneficial Ownership.
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a) Without prejudice to the requirements of applicable law concerning
disclosure of beneficial ownership of Shares, any Beneficial Owner (as defined
below) of American Depositary Shares who becomes, or ceases to be, directly or
indirectly the Beneficial Owner of 10% or more of all outstanding Shares
(whether such interest is held in whole or in part through Receipts) shall,
without undue delay following such event, send written notice to the Issuer,
which notice shall contain the following information:
(i) the name, address and nationality of such Beneficial Owner
and all other persons by whom or on whose behalf such Shares have been acquired
or are held; the number of American Depositary Shares and total Shares
(including American Depositary Shares) beneficially owned directly or indirectly
by such Beneficial Owner immediately before and immediately after the event
requiring notification; the names and addresses of any persons other than the
Depositary, the Custodian, or either of their nominees, through whom such
beneficially owned Shares are held, or in whose name such Shares are registered
in the Issuer's share register, and the respective numbers of Shares
beneficially held through each such person; the date or dates of acquisition of
the beneficial interest in such Shares; and the number of any Shares in which
such Beneficial Owner has the right to acquire directly or indirectly beneficial
ownership and material information as to such right(s) of acquisition; and
(ii) the names, addresses and nationalities of any persons with
whom such Beneficial Owner is acting as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding, voting or
disposing of a beneficial interest in Shares; and the number of Shares being
acquired, held, voted or disposed of as a result of such association (being the
total number held by such group).
Any Beneficial Owner of 10% or of all outstanding Shares shall
promptly notify the Issuer as provided above of any material change in
information previously notified.
As used herein, the term "Beneficial Owner" of Shares means a
person who, directly or indirectly, through any contract, trust, arrangement,
understanding, relationship, or otherwise, has an interest in any Shares,
including any Shares which underlie any American Depositary Shares issued
hereunder (including having the right to exercise or control the exercise of any
right conferred by the holding of such Shares or the power to vote or to direct
voting or the power to dispose or to direct disposition), and includes any Owner
of an American Depositary Share hereunder.
(b) Without prejudice to the requirements of applicable law and the
provisions of the Issuer's Articles of Incorporation, any Beneficial Owner of
Shares shall, if so requested in writing by the Issuer, provide such information
with respect
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to the beneficial ownership of Shares (including not only Shares underlying
American Depositary Shares, but also any other Shares in which such Beneficial
Owner has an interest) by such Beneficial Owner as is requested by the Issuer.
Such Beneficial Owner shall provide such information to the Issuer in writing
within the time specified by the Issuer.
(c) If the Issuer notifies the Depositary in writing that a particular
Beneficial Owner has not complied with subsections (a) or (b), the Depositary
shall use reasonable efforts to comply with the reasonable and practicable
written instructions of the Issuer not to vote or cause to be voted any Shares
held by it or any Custodian as to which such Beneficial Owner of such Shares
shall have failed to comply with the provisions of subsections (a) or (b) above,
but only to the extent that such Beneficial Owner is the Owner of a Receipt or
receipts.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.5, as soon as practicable convert such dividend or
distribution into Dollars, if applicable, and shall distribute the amount thus
received (net of the fees of the Depositary as provided in Section 5.9 hereof,
if applicable) to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Issuer or its agent will remit to the appropriate
governmental agency in Japan all amounts withheld and owing to such agency. The
Depositary or its agent will remit to the appropriate governmental agency in the
United States all amounts withheld and oweing to such agency. At the issuer's
request, the Depositary will forward to the Custodian or its agent such
information from the Depositary's records as the Issuer may reasonably request
to enable the Depositary, or at the direction of the Depositary, the Custodian,
to prepare and execute, and the Issuer or its agent to file, necessary reports
with governmental agencies, and the Depositary or the Issuer or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
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Subject to the provisions of Section 4.11 and Section 5.9,
whenever the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities
or property received by it to be distributed, as promptly as practicable, to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary, after Consultation with the Issuer, may deem
equitable and practicable for accomplishing such distribution; provided,
however, that if in the reasonable opinion of the Depositary such distribution
cannot be made proportionately among the Owners entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Issuer or
the Depositary withhold an amount on account of taxes or other governmental
charges or that such securities must be registered under the Securities Act of
1933 in order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may, after Consultation with the
Issuer, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9) shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash
pursuant to Section 4.1.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of this Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees of the
Depositary as provided in Section 5.9. The Depositary may withhold any such
distribution of Receipts if it has not received reasonable assurances from the
Issuer that such distribution does not require registration under the Securities
Act of 1933 or is exempt from registration thereunder. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.1. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
SECTION 4.4 Rights.
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In the event that the Issuer shall offer or cause to be offered
to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall, after
Consultation with the Issuer, have discretion as to the procedure to be followed
in making such rights available to the Owners or in disposing of such rights on
behalf of the Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion, following Consultation with the Issuer,
that it is lawful and feasible to make such rights available to all Owners or to
certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it reasonably deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution of warrants or
other instruments for rights in order to exercise the rights allocable to the
American Depositary Shares of such Owner hereunder, the Depositary will make
such rights available to such Owner upon written notice from the Issuer to the
Depositary that (a) the Issuer has elected in its sole discretion to permit such
rights to be exercised and (b) such Owner has executed such documents as the
Issuer has determined in its sole discretion are reasonably required under
applicable law.
If the Depositary has distributed warrants or other instruments
for rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments for rights, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Issuer shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
section, such Receipts shall be legended in accordance with applicable laws, and
shall be subject to the appropriate restrictions on sale, deposit, cancellation
and transfer.
If the Depositary determines in its discretion, following
Consultation with the Issuer, that it is not lawful and feasible to make such
rights available to all or certain Owners, it may sell the rights, warrants or
other instruments in proportion to the number
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of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such warrants or other
instruments for rights, upon an averaged or other practical basis without regard
to any distinctions among such Owners because of exchange restrictions or the
date of delivery of any Receipt or otherwise.
The Depositary will not offer warrants or other instruments for
rights to Owners unless both the rights and the securities to which such rights
relate are either exempt from registration under the Securities Act of 1933 with
respect to a distribution to Owners or are registered thereunder. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under the Securities Act of 1933, the
Depositary shall not effect such distribution unless it has received an opinion
from counsel in the United States for the Issuer reasonably satisfactory to the
Depositary upon which the Depositary may rely that such distribution to such
Owner is exempt from such registration, it being understood that the Issuer
shall have no obligation to furnish such opinion. Nothing in this Deposit
Agreement shall create, or shall be construed to create, any obligation on the
part of the Issuer to file a registration statement with respect to such rights
or underlying securities or to endeavor to have such a registration statement
declared effective.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary shall receive Foreign Currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
Foreign Currency so received can in the reasonable judgment of the Depositary be
converted into Dollars and the resulting Dollars transferred to the United
States, the Depositary shall convert or cause to be converted as promptly as
practicable, by sale or in any other manner that it may determine, such Foreign
Currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or
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license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable, provided
that if such application involves or refers to the Issuer or is made on behalf
of the Issuer, such application shall not be filed until approved by the Issuer,
which approval shall not be unreasonably withheld.
If at any time the Depositary shall determine that in its
judgment any Foreign Currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) received by the Depositary to, or in its discretion may
hold such Foreign Currency uninvested and without liability 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 in Dollars to some of the Owners entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Owners entitled thereto
and may distribute the balance of the Foreign Currency (or an appropriate
instrument evidencing the right to such Foreign Currency) received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, which date shall, to the
extent practicable, be the same date as the record date for the Shares or other
Deposited Securities, as the case may be, or as close thereto as practicable,
after Consultation with the Issuer, (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to exercise, or to give
instructions for the exercise of, voting rights at any such meeting, (b) on or
after which each American Depositary Share will represent the changed number of
Shares or (c) to facilitate the administrative purpose for which the record date
was set. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution
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or such rights or the net proceeds of sale thereof in proportion to the number
of American Depositary Shares held by them respectively and to exercise, or give
instructions for the exercise of, voting rights and to act in respect of any
other such matter.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, unless otherwise requested in writing by the Issuer,
the Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners as of the close of business
on a specified record date will be entitled, subject to any applicable provision
of Japanese law and of the Articles of Incorporation of the Issuer, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares, (c) a statement as to the manner in which
such instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Issuer and (d) the Instruction
Date (as defined below). Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose (the "Instruction Date"), the Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted, the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. So
long as Japanese law provides that votes may only be cast with respect to one or
more whole Shares or other Deposited Securities, the Depositary shall aggregate
voting instructions to the extent such instructions are the same and vote such
whole Shares or other Deposited Securities in accordance with the Owners
instructions. If after aggregation of all instructions to vote received by the
Depositary, any portion of which constitutes instructions with respect to less
than a whole Share or other Deposited Security, the Depositary will not vote or
cause to be voted the Shares or other Deposited Security to which such portion
of the instructions apply. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to the Shares or other Deposited Securities,
other than in accordance with such instructions or deemed instructions. If no
instructions are received by the Depositary from any Owner with respect to any
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts on or before the Instruction Date, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person
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designated by the Issuer with respect to such Deposited Securities and the
Depositary shall give a discretionary proxy to a person designated by the Issuer
to vote such Deposited Securities, provided, that no such instruction shall be
given with respect to any matter as to which the Issuer informs the Depositary
(and the Issuer agrees to provide such information as promptly as practicable in
writing) that (x) the Issuer does not wish such proxy given, (y) substantial
opposition exists or (z) such matter materially and adversely affects the rights
of holders of Receipts or the underlying Shares.
The Depositary agrees to appoint the Custodian as a standing
proxy in Japan.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in this Section 4.7 sufficiently
prior to the Instruction Date to ensure that the Depositary will vote the Shares
or Deposited Securities in accordance with the provisions set forth in this
Section 4.7.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not
apply, upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposit Securities if they survive the
transaction, the right to receive the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the Issuer
shall so request, execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, as promptly as practicable, send to
the Owners copies of such reports furnished by the Issuer pursuant to Section
5.6. Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Issuer shall be furnished in
English
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to the extent such materials are required to be translated into English pursuant
to any regulations of the Commission.
The Issuer shall have the right to inspect the transfer and
registration records of the Depositary relating to the Receipts and to make
copies thereof. The Depositary will forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, at the expense of the
Issuer, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines, that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners entitled thereto in proportion to the number of American
Depositary Shares held by them, respectively, and the Depositary shall
distribute any unsold balance of such property in accordance with the provisions
of this Deposit Agreement. The Depositary or its agent shall remit to
appropriate governmental authorities and agencies in the United States all
amounts, if any, withheld and owing to such authorities and agencies by the
Depositary.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the
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Owners and the Issuer, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts. At the written request of the Issuer, the Issuer
shall have the right to (i) inspect transfer and registration records of the
Depositary or its agent and take copies thereof, and (ii) require the Depositary
or its agent, to supply, at the Issuer expense, copies of such portions of such
records as the Issuer may request.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it or, after Consultation with the
Issuer, when deemed reasonably necessary by the Depositary in connection with
the performance of its duties hereunder or at the reasonable request of the
Issuer.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges in the United States, or
quoted on The Nasdaq National Market or any other over-the-counter market, the
Depositary shall act as Registrar or, with the approval of the Issuer, appoint a
Registrar or one or more co-registrars for registry of such Receipts in
accordance with any requirements of such exchange or market.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer, or any of their respective
officers, directors, employees, agents or affiliates, shall incur any liability
to any Owner or holder of any Receipt, if by reason of any provision of any
present or future law, order, decree or regulation of the United States, Japan
or any other country, or of any governmental or regulatory authority or stock
exchange or market, or by reason of any provision, present or future, of the
articles of incorporation or other organizational document of the Issuer, or by
reason of any act of God or war or other circumstances beyond its control (each,
an "Intervening Event"). Neither the Depositary nor the Issuer, or any of their
respective officers, directors, employees, agents or affiliates, shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed or the Deposited
Securities, nor shall the Depositary or the Issuer, or any of their respective
officers, directors, employees, agents or affiliates, incur any liability to any
Owner or holder of any Receipt by reason of any non-performance or delay, caused
by an Intervening Event, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or the Deposited Securities or by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of
this Deposit Agreement, or an offering or distribution pursuant to Section 4.4
of this Deposit Agreement, or for any other reason, such distribution or
offering may not be made available to Owners, and the Depositary may not dispose
of
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such distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer.
The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or holders of Receipts, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to any Owner or holder of any Receipt
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its respective opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary.
Neither the Depositary nor the Issuer shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with the
issue out of which such potential liability arises, the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
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SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election to do so delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary by the
Issuer and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer upon 90
days prior written notice of such removal. Such removal shall be effective upon
the later to occur of (i) the 90th day after delivery of the notice to the
Depositary or (ii) appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided, subject to the terms of Section 6.2
hereunder.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Issuer shall use commercially reasonable efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts and any other information relating to this
Deposit Agreement or the Receipts as may be requested by such successor. Any
such successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged
or consolidated shall be the successor of the Depositary without the execution
or filing of any document or any further act, other than providing notice of
such merger or consolidation to the Owners.
SECTION 5.5 The Custodians.
The Custodian shall be subject at all times and in all respects
to the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint substitute or additional custodian or custodians, which shall
thereafter
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be one of the Custodians hereunder. Upon demand of the Depositary, any Custodian
shall deliver such of the Deposited Securities held by it as are requested of it
to any other Custodian or such substitute or additional Custodian or custodians.
Each such substitute or additional Custodian shall deliver to the Depositary,
forthwith upon its appointment, an acceptance of such appointment satisfactory
in form and substance to the Depositary. Immediately upon any such change, the
Depositary shall give notice in writing to the Issuer of any Custodian not named
in the Receipts.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the translation into English and the
prompt transmittal by the Issuer to the Depositary and the Custodian of such
translated notices and any other reports and communications which are made
generally available by the Issuer to holders of its Shares. If requested in
writing by the Issuer, the Depositary will arrange for the mailing, of copies of
such notices, reports and communications to all Owners. The Issuer will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities (each a "Distribution"), the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act of 1933
to be in effect prior to making such Distribution available to Owners entitled
thereto. If in the opinion of such counsel a registration statement is required,
such counsel shall furnish to
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the Depositary a written opinion as to whether or not there is a registration
statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer,
nor any company controlled by, controlling or under common control with the
Issuer, will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Issuer or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or unless such Shares are accompanied by an opinion on which the
Depositary may rely, reasonably satisfactory to the Depositary from recognized
U.S. counsel for the Issuer, that upon deposit of such Shares, such Shares and
the American Depositary Shares issued in respect thereof will not be "restricted
securities" as such term is defined under Rule 144(a)(3) of the Securities Act
of 1933 and that the offer and sale of such securities would not require
registration under such act.
SECTION 5.8 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any loss, liability or expense (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of any
registration with the Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or out of
acts performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of their respective negligence or bad faith, or
(ii) by the Issuer or any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Issuer), as applicable, furnished in writing and not
materially changed or altered by the Issuer expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
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The Depositary agrees to indemnify the Issuer, its officers,
directors, employees, agents and affiliates and hold them harmless from any
loss, liability or expense (including, but not limited to reasonable fees and
expenses of counsel as set forth below) which may arise out of acts performed or
omitted by the Depositary or its Custodian or their respective officers,
directors, employees, agents and affiliates due to their negligence or bad
faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the Indemnitee). The Indemnitee shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, (c) the Indemnitor fails, within ten (10) days prior to the date
the first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
different from or are in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no effect on any other claims that may be made against
such other party and (ii) the sole relief provided is monetary damages that are
paid in full by the party seeking the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
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SECTION 5.9 Charges of Depositary.
The Issuer agrees to pay the fees, expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing
or withdrawing Shares or by any party surrendering Receipts or to whom Receipts
are issued (including, without limitation, issuance pursuant to a stock dividend
or stock split declared by the Issuer or an exchange regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the shareholders' register of the Issuer or
Foreign Registrar and applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of Foreign
Currency pursuant to Section 4.5, (5) a fee of up to $5.00 per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4, and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of up to $.02 per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
hereof, (7) a fee of up to $1.50 per certificate for a Receipt or Receipts for
transfers made pursuant to Section 2.4, (8) a fee for the distribution of
securities pursuant to Section 4.2, such fee being in an amount equal to the fee
for the execution and delivery of American Depositary Shares referred to above
which would have been charged as a result of the deposit of such securities (for
purposes of this clause (8) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Owners, and (9) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners of record as of the date or dates
set by the Depositary in accordance with Section 4.06 and shall be collected at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal
in any class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
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The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Issuer requests that such papers be retained for a longer period or turned over
to the Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
Subject to the provisions of Section 5.4, the Issuer agrees not
to appoint any other depositary for issuance of American Depositary Receipts so
long as The Bank of New York is acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary a
list setting forth, to the actual knowledge of the Issuer, those persons or
entities who beneficially own Restricted Securities and the Issuer shall update
that list on a quarterly basis. The Issuer agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
SECTION 5.13 Withholding of Japanese Tax.
In the event that the Issuer shall be required by Japanese laws
and regulations to withhold any tax on any dividend or distribution made by it
in respect of any Deposited Securities, the Depositary shall forward to the
Custodian for delivery to the Issuer such information from the Depositary's
records as the Issuer may reasonably request in connection with any such
withholding by the Issuer within such period as will enable the Issuer to file
the necessary reports with the appropriate governmental agencies to obtain
benefits under applicable tax treaties.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Issuer and the Depositary in any respect which they may deem necessary or
desirable without the consent of the Owners. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex
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or facsimile transmission costs, delivery costs or other such expenses), or
which shall otherwise prejudice any substantial existing right of Owners, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement or Receipts as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Issuer
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Issuer a written notice
of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such
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sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges) and its obligations to the Issuer under Section
5.8 hereof. Upon the termination of this Deposit Agreement, the Issuer shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any holder or Owner of a Receipt during business
hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
Any and all notices to be given to the Issuer shall be deemed to
have been duly given if personally delivered or sent by mail, internationally
recognized courier service, cable, telex or facsimile transmission confirmed by
letter, addressed to Jupiter
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Telecommunications Co., Ltd., Higashi-Ikeburo Center Xxxx. 0X, 00-00
Xxxxxxx-Xxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, 000-0000 Xxxxx, fax:
x00-0-0000-0000, Attention: Xxxx Xxxxxxxxx, or any other place to which the
Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed
to have been duly given if in English and personally delivered or sent by mail,
internationally recognized courier service, cable, telex or facsimile
transmission confirmed by letter, addressed to The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American Depositary Receipt
Administration, or any other place to which the Depositary may have transferred
its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail, internationally
recognized courier service, cable, telex or facsimile transmission confirmed by
letter, addressed to such Owner at the address of such Owner as it appears on
the transfer books for Receipts of the Depositary, or, if such Owner shall have
filed with the Depositary a written request that notices intended for such Owner
be delivered to some other address, at the address designated in such request.
Delivery of a notice sent by cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the substantive laws (and not the choice of law rules) of the State
of New York. It is understood that, notwithstanding any present or future
provision of the laws of the State of New York, the rights of holders of Shares
and other Deposited Securities and the obligations and duties of the Issuer in
respect of such holders, as such, shall be governed by the laws of Japan (or, if
applicable, such other law as may govern Deposited Securities).
SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the
contrary, the Issuer and the Depositary each agrees that it will not exercise
any rights it has under this Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate United States
securities laws, including, but not limited to,
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Section I.A.(l) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Issuer hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the Issuer's
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Deposit Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Issuer in any such suit or
proceeding. The Issuer agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Issuer further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be reasonably
necessary to continue such designation and appointment in full force and effect
for so long as any American Depositary Shares or Receipts remain outstanding or
this Agreement remains in force. In the event the Issuer fails to continue such
designation and appointment in full force and effect and the Issuer fails to
promptly designate and appoint a successor, the Issuer hereby waives personal
service of process upon it and consents that any such service of process may be
made by certified or registered mail, return receipt requested, directed to the
Issuer at its address last specified for notices hereunder, and service so made
shall be deemed completed five (5) days after the same shall have been so
mailed.
33
38
IN WITNESS WHEREOF, JUPITER TELECOMMUNICATIONS CO., LTD. and THE
BANK OF NEW YORK have duly executed this agreement as of the day and year first
set forth above, and all Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
JUPITER TELECOMMUNICATIONS CO., LTD.
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
-------------------------------------
Name:
Title:
34
39
DRAFT OF 10/13/00
Exhibit A to Deposit Agreement
No. AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one-fiftieth of a deposited
Share)
PURSUANT TO THE TERMS OF THE DEPOSIT AGREEMENT, THE DEPOSITARY SHALL NOT
ACCEPT FOR SURRENDER ANY NUMBER OF AMERICAN DEPOSITARY SHARES WHICH
WOULD REQUIRE THE DELIVERY OF FRACTIONAL SHARES
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
JUPITER TELECOMMUNICATIONS CO., LTD.
(INCORPORATED UNDER THE LAWS OF JAPAN)
The Bank of New York as depositary (hereinafter called the "Depositary"), hereby
certifies that _____________________, or registered assigns IS THE OWNER
OF________________________________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of JUPITER
TELECOMMUNICATIONS CO., LTD., incorporated under the laws of Japan (herein
called the "Company"). At the date hereof, each American Depositary Share
represents one-fiftieth of a Share which is either deposited or subject to
deposit under the deposit agreement at the Tokyo main office of Sumitomo Bank
(herein called the "Custodian"). The Depositary's Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
40
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ________ __, 2000 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and holders of the Receipts and the rights and duties of the Depositary
in respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the amount of such
whole number of Shares and other Deposited Securities at the time represented by
the American Depositary Shares for which this Receipt is issued. Delivery of
such Deposited Securities may be made by the delivery of (a) certificates in the
name of the Owner hereof or as ordered by him or by certificates properly
endorsed or accompanied by proper instruments of transfer to such Owner or as
ordered by him and (b) any other securities, property and cash to which such
Owner is then entitled in respect of this Receipt to such Owner or as ordered by
him. The Depositary shall not accept for cancellation any number of American
Depositary Shares which would require the delivery of fractional Shares. If any
American Depositary Shares are surrendered but not cancelled pursuant to the
preceding sentence, the Depositary shall execute and deliver a Receipt or
Receipts evidencing the balance of American Depositary Shares not so cancelled
to the person or persons surrendering the same. Such delivery will be made at
the option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended except as
41
permitted in General Instruction I(A)(1) to Form F-6 (as may be amended from
time to time) under the Securitites Act of 1933, which currently permits
suspension only in connection with (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof reasonably satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may reasonably establish consistent with the
provisions of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, in each case subject to Article (22) hereof.
Without limitation on the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares or such sale would be exempt from such
provisions. The Depositary will, and will instruct the Custodian to, comply with
written instructions of the Company not to accept for deposit under this Deposit
Agreement any Shares identified in such
- 2 -
42
instructions and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the compliance with U.S. securities laws by
the Company.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer of this Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized to do so. Every such person shall also be
deemed to represent that such Shares and the Receipts evidencing American
Depositary Shares representing such Shares are not restricted under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt may
be required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may, and at the request of the Company shall, withhold the
delivery or registration of transfer of any Receipt (or any split up or
combination thereof) or the distribution of any dividend or sale or distribution
of rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. No Share shall be accepted for
deposit unless accompanied by evidence reasonably satisfactory to the Depositary
that all conditions to such deposit under Japanese laws and regulations have
been satisfied by the person
- 3 -
43
depositing such Shares and any necessary approval has been granted by any
governmental body in Japan which is then performing the function of the
regulation of currency exchange or any other function which requires approval
for the deposit of Shares.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, expenses and out-of-pocket charges
of the Depositary and those of any Registrar only in accordance with agreements
in writing entered into between the Depositary and the Company from time to
time. The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3 of
the Deposit Agreement), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the shareholders' register
of the Company or Foreign Registrar and applicable to transfers of Shares to the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals under the Deposit Agreement, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in the
Deposit Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of Foreign Currency pursuant to Section 4.5 of the Deposit Agreement,
(5) a fee of up to $5.00 per 100 American Depositary Shares (or portion thereof)
for the execution and delivery of Receipts pursuant to Sections 2.3, 4.3 or 4.4,
and the surrender of Receipts pursuant to Sections 2.5 or 6.2 of the Deposit
Agreement, (6) a fee of up to $.02 per American Depositary Share (or portion
thereof) for any cash distribution made pursuant to the Deposit Agreement
including, but not limited to Sections 4.1 through 4.4 thereof, (7) a fee of up
to $1.50 per certificate for a Receipt or Receipts for transfers made pursuant
to Section 2.4 of the Deposit Agreement and (8) a fee for the distribution of
securities pursuant to Section 4.2 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause (8) treating all such
securities as if they were Shares), but which securities are instead distributed
by the Depositary to Owners and (9) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners of record as
of the date or dates set by the Depositary in accordance with Section 4.06 of
the Deposit Agreement and shall be collected at the sole discretion of the
Depositary by billing such
- 4 -
44
Owners for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE RECEIPTS.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 thereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 of the Deposit
Agreement ("Pre-Release"). The Depositary may, pursuant to Section 2.5 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
- 5 -
45
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
The Company shall have no liability to any Owner with respect to any
representations, actions or omissions by the Depositary, the Custodian or any of
their agents pursuant to Section 2.9 of the Deposit Agreement.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute Owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes, and neither the Company nor
the Depositary will have any liability to any other owner or person claiming to
have an ownership interest therein.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also, upon written request, as promplty as practicable,
send to the Owners of Receipts copies of such reports
- 6 -
46
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary shall keep books for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners of Receipts and the Company, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts. At the written
request of the Company, the Company shall have the right to (i) inspect transfer
and registration records of the Depositary or its agent and take copies thereof,
and (ii) require the Depositary or its agent, to supply, at the Company expense,
copies of such portions of such records as the Company may request.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
as soon as practicable convert such dividend or distribution into Dollars and
shall distribute the amount thus received (net of the fees of the Depositary as
provided in the Deposit Agreement, if applicable) to the Owners of Receipts
entitled thereto, provided, however, that in the event that the Company or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution in respect of any Deposited Securities
an amount on account of taxes, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed, as promptly as practicable, to the Owners of Receipts entitled
thereto, in any manner that the Depositary, after Consultation with the Company,
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the reasonable opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may, after Consultation with the
Company, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus
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47
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.9 of the Deposit Agreement)
shall be distributed by the Depositary to the Owners of Receipts entitled
thereto as in the case of a distribution received in cash pursuant to Section
4.1 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as provided in Section 5.9 of the Deposit
Agreement. The Depositary may withhold any such distribution of Receipts if it
has not received reasonable assurances from the Company that such distribution
does not require registration under the Securities Act of 1933 or is exempt from
registration under the provisions thereunder. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions set
forth in the Deposit Agreement. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive Foreign Currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
Foreign Currency so received can in the judgment of the Depositary be converted
into Dollars and the resulting Dollars transferred to the United States, the
Depositary shall convert or cause to be converted as promptly as practicable, by
sale or in any other manner that it may determine, such Foreign Currency into
Dollars, and such Dollars shall be distributed to the Owners entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the
- 8 -
48
holders thereof to such Dollars, then to the holders of such warrants and/or
instruments upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable,
provided that if such application involves or refers to the Company or is made
on behalf of the Company, such application shall not be filed until approved by
the Company, which approval shall not be unreasonably withheld.
If at any time the Depositary shall determine that in its judgment any
Foreign Currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the Foreign Currency
(or an appropriate document evidencing the right to receive such Foreign
Currency) received by the Depositary to, or in its discretion may hold such
Foreign Currency uninvested and without liability 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 in Dollars to some of the Owners entitled thereto,
the Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the Foreign Currency (or an appropriate instrument
evidencing the right to such Foreign Currency) received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
Consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to the Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion, following Consultation
with the Company, that it is lawful
- 9 -
49
and feasible to make such rights available to all Owners or to certain Owners
but not to other Owners, the Depositary may distribute, to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems reasonably appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
for rights in order to exercise the rights allocable to the American Depositary
Shares of such Owner under the Deposit Agreement, the Depositary will make such
rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner has executed such documents as
the Company has determined in its sole discretion are reasonably required under
applicable law. If the Depositary has distributed warrants or other instruments
for rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments for rights, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of the Deposit Agreement, and shall, pursuant
to Section 2.3 of the Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
Article, such Receipts shall be legended in accordance with applicable laws, and
shall be subject to the appropriate restrictions on sale, deposit, cancellation
and transfer.
If the Depositary determines in its discretion, following Consultation
with the Company, that it is not lawful and feasible to make such rights
available to all or certain Owners, it may sell the rights, warrants or other
instruments in proportion to the number of American Depositary Shares held by
the Owners to whom it has determined it may not lawfully or feasibly make such
rights available, and allocate the net proceeds of such sales (net of the fees
of the Depositary as provided in Section 5.9 of the Deposit Agreement and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of the Deposit Agreement) for the account of
such Owners otherwise entitled to such warrants or other instruments for rights,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise.
The Depositary will not offer warrants or other instruments for rights
to Owners unless both the rights and the securities to which such rights relate
are either exempt from
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registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered thereunder. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under the Securities Act of 1933, the Depositary shall
not effect such distribution unless it has received an opinion from counsel in
the United States for the Company reasonably satisfactory to the Depositary upon
which the Depositary may rely that such distribution to such Owner is exempt
from such registration, it being understood that the Company shall have no
obligation to furnish such opinion. Nothing in this Deposit Agreement shall
create, or shall be construed to create, any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, which date shall, to the
extent practicable, be the same date as the record date for the Shares or other
Deposited Securities, as the case may be, or as close thereto as practicable,
after Consultation with the Company, (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to exercise, or to give
instructions for the exercise of, voting rights at any such meeting, (b) on or
after which each American Depositary Share will represent the changed number of
Shares or (c) to facilitate the administrative purpose for which the record date
was set. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to exercise, or give
instructions for the exercise of, voting rights and to act in respect of any
other such matter.
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51
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, unless otherwise requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners as of the close of business
on a specified record date will be entitled, subject to any applicable provision
of Japanese law and of the Articles of Incorporation of the Company, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares, (c) a statement as to the manner in which
such instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company and (d) the
Instruction Date (as defined below). Upon the written request of an Owner on
such record date, received on or before the date established by the Depositary
for such purpose (the "Instruction Date"), the Depositary shall endeavor, in so
far as practicable, to vote or cause to be voted, the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. So
long as Japanese law provides that votes may only be cast with respect to one or
more whole Shares or other Deposited Securities, the Depositary shall aggregate
voting instructions to the extent such instructions are the same and vote such
whole Shares or other Deposited Securities in accordance with the Owners
instructions. If after aggregation of all instructions to vote received by the
Depositary, any portion of which constitutes instructions with respect to less
than a whole Share or other Deposited Security, the Depositary will not vote or
cause to be voted the Shares or other Deposited Security to which such portion
of the instructions apply. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to the Shares or other Deposited Securities,
other than in accordance with such instructions or deemed instructions. If no
instructions are received by the Depositary from any Owner with respect to any
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts on or before the Instruction Date, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Receipts or the
underlying Shares.
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52
The Depositary agrees to appoint the Custodian as a standing proxy in
Japan.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the first paragraph sufficiently
prior to the Instruction Date to ensure that the Depositary will vote the Shares
or Deposited Securities in accordance with the provisions set forth in the first
paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities if
they survive the transaction, the right to receive new Deposited Securities so
received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may, and
shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a dividend in Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company, or any of their respective
officers, directors, employees, agents or affiliates, shall incur any liability
to any Owner or holder of any Receipt, if by reason of any provision of any
present or future law, order, decree or regulation of the United States, Japan
or any other country, or of any governmental or regulatory authority or stock
exchange or market, or by reason of any provision, present or future, of the
articles of incorporation or other organizational document of the Company, or by
reason of any act of God or war or other circumstances beyond its control (each,
an "Intervening Event"). Neither the Depositary nor the Company, or any of their
respective officers, directors, employees, agents or affiliates, shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed or the Deposited
Securities, nor shall the Depositary or the Company, or any of their respective
officers, directors, employees, agents or affiliates, incur any liability to any
Owner or holder of any Receipt by reason of any non-performance or delay, caused
by an Intervening Event, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or the Deposited Securities or by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of
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53
a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.4 of the Deposit Agreement,
or for any other reason, such distribution or offering may not be made available
to Owners, and the Depositary may not dispose of such distribution or offering
on behalf of such Owners and make the net proceeds available to such Owners,
then the Depositary shall not make such distribution or offering, and shall
allow any rights, if applicable, to lapse. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Owners or holders of Receipts, except that they agree to
perform their obligations specifically set forth in the Deposit Agreement
without negligence or bad faith. The Depositary shall not be subject to any
liability with respect to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its respective
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary shall not be liable
for any acts or omissions made by a successor depositary whether in connection
with a previous act or omission of the Depositary or in connection with any
matter arising wholly after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability
arises the Depositary performed its obligations without negligence or bad faith
while it acted as Depositary. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Company agrees
to indemnify the Depositary, its directors, employees, agents and affiliates and
any Custodian against, and hold each of them harmless from, any loss, liability
or expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of any registration with the Commission of
Receipts, American Depositary Shares or Deposited Securities or the offer or
sale thereof in the United States or out of acts performed or omitted, in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates. No disclaimer of liability under
the Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
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54
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
by the Company and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company upon 90 days
prior written notice of such removal, effective upon the later to occur of (i)
the 90th day after delivery of the notice to the Depositary or (ii) appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. Whenever the Depositary in its discretion determines that
it is in the best interest of the Owners of Receipts to do so, it may appoint
substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Owners. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners of Receipts, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner of a Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement or Receipt as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
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payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.5 of the Deposit Agreement and (c) payment of any applicable taxes
or governmental charges, be entitled to delivery, to him or upon his order, of
the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges). At any time after the expiration
of one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it thereunder, unsegregated and without liability for interest, for the
pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges) and
its obligations to the Company under Section 5.8 thereof. Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary under
Sections 5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the United
States securities laws, including, but not limited to, Section I.A.(l) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
23. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed CT Corporation
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56
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the Company's authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Deposit Agreement, (ii) consented and submitted to
the jurisdiction of any state or federal court in the State of New York in which
any such suit or proceeding may be instituted, and (iii) agreed that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
24. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners or former Owners
to provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and the nature of such interest and various other
matters reasonably requested by the Company in order to comply with applicable
law.
Each Owner agrees to provide any information requested by the Company or
the Depositary with respect to such Owner pursuant to Section 3.4 of the Deposit
Agreement and such agreement shall survive any disposition of such Owner's
interest in Shares or Receipts. The Depositary agrees to comply with reasonable
written instructions received from the Company requesting that the Depositary
forward any such requests to the Owners and former Owners and to forward to the
Company any such responses to such requests received by the Depositary.
25. DISCLOSURE OF BENEFICIAL OWNERSHIP.
(a) Without prejudice to the requirements of applicable law concerning
disclosure of beneficial ownership of Shares, any Beneficial Owner (as defined
below) of American Depositary Shares who becomes, or ceases to be, directly or
indirectly the Beneficial Owner of 10% or more of all outstanding Shares
(whether
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57
such interest is held in whole or in part through Receipts) shall, without undue
delay following such event, send written notice to the Company, which notice
shall contain the following information:
(i) the name, address and nationality of such Beneficial Owner
and all other persons by whom or on whose behalf such Shares have been acquired
or are held; the number of American Depositary Shares and total Shares
(including American Depositary Shares) beneficially owned directly or indirectly
by such Beneficial Owner immediately before and immediately after the event
requiring notification; the names and addresses of any persons other than the
Depositary, the Custodian, or either of their nominees, through whom such
beneficially owned Shares are held, or in whose name such Shares are registered
in the Company's share register, and the respective numbers of Shares
beneficially held through each such person; the date or dates of acquisition of
the beneficial interest in such Shares; and the number of any Shares in which
such Beneficial Owner has the right to acquire directly or indirectly beneficial
ownership and material information as to such right(s) of acquisition; and
(ii) the names, addresses and nationalities of any persons with
whom such Beneficial Owner is acting as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding, voting or
disposing of a beneficial interest in Shares; and the number of Shares being
acquired, held, voted or disposed of as a result of such association (being the
total number held by such group).
Any Beneficial Owner of 10% or more of all outstanding Shares
shall promptly notify the Company as provided above of any material change in
information previously notified.
As used herein, the term "Beneficial Owner" of Shares means a
person who, directly or indirectly, through any contract, trust, arrangement,
understanding, relationship, or otherwise, has an interest in any Shares,
including any Shares which underlie any American Depositary Shares issued
hereunder (including having the right to exercise or control the exercise of any
right conferred by the holding of such Shares or the power to vote or to direct
voting or the power to dispose or to direct disposition), and includes any Owner
of an American Depositary Share hereunder.
(b) Without prejudice to the requirements of applicable law and the
provisions of the Company's Articles of Incorporation, any Beneficial Owner of
Shares shall, if so requested in writing by the Company, provide such
information with respect to the beneficial ownership of Shares (including not
only Shares underlying American Depositary Shares, but also any other Shares in
which such Beneficial Owner has an interest) by such Beneficial Owner as is
requested by the Company. Such Beneficial Owner shall provide such information
to the Company
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58
in writing within the time specified by the Company.
(c) If the Company notifies the Depositary in writing that a particular
Beneficial Owner has not complied with subsections (a) or (b), the Depositary
shall use reasonable efforts to comply with the reasonable and practicable
written instructions of the Company not to vote or cause to be voted any Shares
held by it or any Custodian as to which such Beneficial Owner of such Shares
shall have failed to comply with the provisions of subsections (a) or (b) above,
but only to the extent that such Beneficial Owner is the Owner of a Receipt or
receipts.
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