AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of October 1, 2008 (the "Amendment") to the Amended and Restated Deposit
Agreement dated as of December 11, 2000 (the "Deposit Agreement"), among
Panasonic Corporation (fka Matsushita Electric Industrial Co., Ltd.) (the
"Company"), incorporated under the laws of Japan, JPMorgan Chase Bank, N.A.
(fka
Xxxxxx Guaranty Trust Company of New York), as depositary (the "Depositary"),
and all Holders from time to time of American Depositary Receipts ("ADRs")
issued thereunder.
W
I T
N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms
of
the Deposit Agreement and Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement and all ADRs to the term "Deposit Agreement"
shall, as of the date hereof, refer to the Deposit Agreement, as amended by
this
Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. All
references in the Deposit Agreement and all ADRs to the Company or Matsushita
Electric Industrial Co., Ltd. shall be deemed references to Panasonic
Corporation.
SECTION
2.04. All
references in the Deposit Agreement and all ADRs to "Units" shall be amended
to
reflect that, effective February 1, 2009, each Unit represents 100 shares of
Stock.
SECTION
2.05. All
references in the Deposit Agreement and all ADRs to par value are
deleted.
SECTION
2.06. The
address of the Depositary set forth in Section 17 of the Deposit Agreement
is
amended to read as follows:
JPMorgan
Chase Bank, N.A.
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
2
SECTION
2.07. References
in all ADRs to "Xxxxxx Guaranty Trust Company of New York, a New York
Corporation" are replaced with "JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States of
America".
SECTION
2.08. Paragraph
(7) of the form of ADR and each outstanding ADR is amended by inserting the
following immediately after the initial sentence thereof:
In
addition, Holders may be charged an aggregate fee of up to U.S.$0.05 per ADS
per
calendar year (or portion thereof) for services performed by the Depositary
in
administering the ADRs (which fee may be charged on a periodic basis during
each
calendar year and shall be assessed against Holders as of the record date or
record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions).
SECTION
2.09. The
last
sentence of paragraph (8) of the form of ADR is amended to read as
follows:
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Securities and Exchange Commission located at
the
date hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
SECTION
2.10. The
form
of ADR, as amended hereby, shall be in the form set forth as Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors=
rights
and to general equity principles; and
3
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in Japan, neither of such
agreements need to be filed or recorded with any court or other authority in
Japan, nor does any stamp or similar tax need to be paid in Japan on or in
respect of such agreements; and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the date hereof, provided, however that the amendment set forth in Section
2.08
hereof shall not become effective until thirty days from the date notice hereof
is first provided to Holders.
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement, as amended hereby, in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated
herein.
4
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
Panasonic
Corporation
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By:____________________________
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Name:
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Title:
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JPMorgan
Chase Bank, N.A.
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By:____________________________
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Name:
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Title:
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5
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
_____
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No.
of ADSs:
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Number
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Each
ADS represents
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One
share of Stock
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CUSIP:
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THE
RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND
(12) BELOW. PURSUANT TO THE COMMERCIAL CODE OF JAPAN AND TO PANASONIC
CORPORATION'S ARTICLES OF INCORPORATION, THE RELEASE OF THE SHARES OF STOCK
OF PANASONIC
CORPORATION UNDERLYING THE ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A
UNIT
OF 100 SUCH SHARES OF STOCK (OR SUCH OTHER NUMBER OF SHARES OF STOCK AS THE
ARTICLES OF INCORPORATION MAY FROM TIME TO TIME DESIGNATE AS A "UNIT OF SHARES")
OR INTEGRAL MULTIPLES THEREOF.
NOTE:
PRIOR TO FEBRUARY 1, 2009 A UNIT EQUALS 1,000 SHARES OF
STOCK
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES
OF
COMMON STOCK
of
PANASONIC
CORPORATION
(Incorporated
under the
laws
of
Japan)
1
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that
________ is the registered owner (a "Holder") of ___ American Depositary Shares
("ADSs"), each (subject to paragraph (13)) representing one share of common
stock (including the rights to receive Stock described in paragraph (1), "Stock"
and, together with any other securities, cash or property from time to time
held
by the Depositary in respect or in lieu of deposited Stock, the "Deposited
Securities"), of Panasonic Corporation, a corporation organized under the laws
of Japan (the "Company"), deposited under the Amended and Restated Deposit
Agreement dated as of December 11, 2000 (as amended from time to time, the
"Deposit Agreement") among the Company, the Depositary and all Holders from
time
to time of American Depositary Receipts issued thereunder ("ADRs"), each of
whom
by accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New
York.
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Stock
in form satisfactory to the Custodian; (b) rights to receive Stock from the
Company or any registrar, transfer agent, clearing agent or other entity
recording Stock ownership or transactions; or, (c) other rights to receive
Stock
(until such Stock is actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Stock, (b) assigns
all beneficial right, title and interest therein to the Depositary, (c) holds
such Stock for the account of the Depositary and (d) will deliver such Stock
to
the Custodian as soon as practicable and promptly upon demand therefor and
(iii)
all Pre-released ADRs evidence not more than 30% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. At the request, risk and expense of the person depositing Stock, the
Depositary may accept deposits for forwarding to the Custodian and may deliver
ADRs at a place other than its office. Every person depositing Stock under
the
Deposit Agreement represents and warrants that such Stock is validly issued
and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the
person making such deposit is duly authorized so to do and that such Stock
(A)
is not "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations and warranties shall survive the deposit of Stock
and issuance of ADRs. The Depositary will not knowingly accept for deposit
under
the Deposit Agreement any Stock required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for
such
deposit any Stock identified by the Company in order to facilitate the Company's
compliance with such Act.
2
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at such other place as may have been requested by the
Holder. Upon surrender of an ADR or ADRs by a Holder to the Depositary, as
a
result of, and to the extent required by, the operation of applicable provisions
of the Japanese Commercial Code, the Depositary will effect the delivery to
such
Holder of only that portion of Stock (and any other Deposited Securities
relating to such Stock) comprising a Unit or an integral multiple thereof (the
"deliverable portion" of such ADR or ADRs). As of the date of the Deposit
Agreement, a Unit is comprised of 100 shares of Stock (a "Unit of Shares").
For
the purpose of the foregoing sentence, the deliverable portion shall be
determined on the basis of the aggregate number of shares of Stock represented
by the entire amount of the ADSs evidenced by the ADR or ADRs surrendered by
the
same Holder at the same time. The Depositary will promptly advise such Holder
as
to the amount of Stock and Deposited Securities, if any, represented by the
non-deliverable portion of such ADR or ADRs and shall deliver to such Holder
a
new ADR evidencing such non-deliverable portion. In addition, the Depositary
shall notify such Holder of the additional amount of ADSs which such Holder
would be required to surrender in order for the Depositary to effect delivery
of
all the Stock and Deposited Securities represented by the ADSs of such Holder.
Notwithstanding any other provision of the Deposit Agreement or this ADR, the
withdrawal of Deposited Securities may be restricted only for the reasons set
forth in General Instruction I.A.(1) of Form F-6 (as such instructions may
be
amended from time to time) under the Securities Act of 1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary and the Company, notwithstanding any notice to the contrary, may
treat the person in whose name this ADR is registered on the ADR Register as
the
absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this
ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney
upon
surrender of this ADR at the Transfer Office properly endorsed (in the case
of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
3
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Stock or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law (including, without
limitation, the Foreign Exchange and Foreign Trade Control Law of Japan),
regulations, provisions of or governing Deposited Securities and terms of the
Deposit Agreement and this ADR, as it may deem necessary or proper; and (c)
compliance with such regulations as the Depositary may establish consistent
with
the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of
Stock, the registration, registration of transfer, split-up or combination
of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or
when
any such action is deemed advisable by the Depositary or the
Company.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Stock and shall distribute the net proceeds of any such sale
or
the balance of any such property after deduction of such tax or other
governmental charge to the Holder entitled thereto. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts
(if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. The Depositary will forward or cause its agent
to
forward to the Company such information from its or their records as the Company
may reasonably request to enable the Company to file necessary reports with
governmental authorities or agencies. At the written request of the Company
for
Japanese taxation purposes, the Depositary shall provide the Company with copies
of all filings made by the Depositary, if any. If the Depositary determines
that
any distribution in property other than cash (including Stock or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of
such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled
thereto.
4
(6)
Disclosure
of Interests.
(a) Without
prejudice to the requirements of applicable law concerning disclosure of
beneficial ownership of shares of Stock, any Beneficial Owner (as defined below)
of ADSs who becomes, or ceases to be, directly or indirectly, the Beneficial
Owner of more than 5% of all outstanding shares of Stock (whether such interest
is held in whole or only in part through ADRs) shall, within five days
(excluding Saturdays, Sundays and legal holidays in Japan) following such event,
send written notice to the Depositary at its Transfer Office and to the Company
at its principal office in Japan at 1006, Oaza Xxxxxx, Xxxxxx Xxxx, Xxxxx
000-0000 Xxxxx containing 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 of Stock have been acquired or are held; the
number of ADSs and total shares of Stock (including ADSs) 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 of Stock are held, or
in
whose name such shares of Stock are registered in the Company's
shareholders=
register, and the respective numbers of shares of Stock beneficially held
through each such person; the date or dates of acquisition of the beneficial
interest in such shares of Stock; and the number of any shares of Stock 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 of Stock; and the number of shares of Stock 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 more than 5% of all outstanding shares of Stock shall
promptly notify the Depositary and the Company as provided above of any material
change in the information previously notified, including, without limitation,
a
change of 1% or more of the percentage of total shares of Stock to which the
beneficial ownership relates.
5
As
used
herein, the "Beneficial Owner" of shares of Stock
means a person who, directly or indirectly, through any contract, trust,
arrangement, understanding, relationship, or otherwise, has an interest in
any
shares of Stock, including any shares of Stock which underlie any ADS issued
hereunder (including having the right to exercise or control the exercise of
any
right conferred by the holding of such shares of Stock or the power to vote
or
to direct voting or the power to dispose or to direct disposition), and includes
any Holder of an ADS.
(b) Without
prejudice to the requirements of applicable law and the provisions of the
Company's Articles of Incorporation, any Beneficial Owner of shares of Stock
shall, if so requested in writing by the Company, provide such information
with
respect to the beneficial ownership of shares of Stock (including not only
shares of Stock underlying ADSs, but also any other shares of Stock in which
such Beneficial Owner has an interest and including any security convertible
into, exchangeable for or exercisable for shares of Stock) by such Beneficial
Owner as is requested by the Company. Such Beneficial Owner shall provide such
information to the Company in writing within the time specified by the Company.
Copies of any such request and responses shall be contemporaneously sent to
the
Depositary at its Transfer Office.
(c) If
the
Company notifies the Depositary in writing that a particular Beneficial Owner
has not complied with subsections (a) or (b) above, the Depositary shall use
reasonable efforts not to vote or cause to be voted any shares of Stock held
by
it or any Custodian as to which such Beneficial Owner of such shares of Stock
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 Beneficial Owner of
an
ADR or ADRs.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Stock, including deposits in respect of Stock Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADRs for withdrawal of Deposited Securities (including, without
limitation, on the termination of the Deposit Agreement), U.S. $5.00 for each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered.
In
addition, Holders may be charged an aggregate fee of up to U.S.$0.05 per ADS
per
calendar year (or portion thereof) for services performed by the Depositary
in
administering the ADRs (which fee may be charged on a periodic basis during
each
calendar year and shall be assessed against Holders as of the record date or
record dates set by the Depositary during each calendar year and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). The Depositary may sell (by public or private sale) sufficient
securities and property received in respect of Stock Distributions, Rights
and
Other Distributions prior to such deposit to pay such charge. The Company will
pay all other reasonable charges and expenses of the Depositary and any agent
of
the Depositary (except the Custodian) pursuant to agreements from time to time
between the Company and the Depositary, except (i) stock transfer or other
taxes
and other governmental charges (which are payable by Holders or persons
depositing Stock), (ii) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Stock, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration of transfer
of Deposited Securities on any applicable register in connection with the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Stock or Holders withdrawing Deposited Securities; there are no
such
fees in respect of the Stock as of the date of the Deposit Agreement) and (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency). These charges
may be changed in the manner indicated in paragraph (16).
6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are, pursuant to Section 14
of
the Deposit Agreement, both (a) received by either the Depositary or the
Custodian or the Depositary=s
nominee
as a holder of Deposited Securities and (b) made generally available to the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary and the Custodian and at the Transfer Office. The
Depositary will mail copies of such communications (or English translations
or
summaries thereof) to Holders when furnished by the Company. The Company is
subject to the periodic reporting requirements of the Securities Exchange Act
of
1934 and accordingly files certain reports with the United States Securities
and
Exchange Commission. Such reports and other information may be inspected and
copied at public reference facilities maintained by the Securities and Exchange
Commission located at the date hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
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By
.........................................
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Authorized
Officer
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The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute by mail to each Holder entitled thereto on the record date set by
the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any reasonable manner. (b) Stock.
(i)
Additional ADRs evidencing whole ADSs representing any Stock available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Stock (a "Stock Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Stock received
in a
Stock Distribution, which Stock would give rise to fractional ADSs if additional
ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Stock or rights of any nature available to the Depositary as a result
of a distribution on Deposited Securities ("Rights"), to the extent that the
Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Stock Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem,
after
consultation with the Company to the extent practicable, equitable and
practicable, or (ii) to the extent the Depositary deems, after consultation
with
the Company to the extent practicable, distribution of such securities or
property not to be equitable and practicable, any U.S. dollars available to
the
Depositary from the net proceeds of sales of Other Distributions as in the
case
of Cash. Such U.S. dollars available will be distributed by checks drawn on
a
bank in the United States for whole dollars and cents (any fractional cents
being withheld without liability for interest and dealt with by the Depositary
in accordance with its then current procedures). Notwithstanding anything herein
to the contrary, the Company shall have no obligation to either (i) register
any
ADSs, Shares, Rights or other securities described in this Paragraph (10) under
the Securities Act of 1933 or (ii) take other actions to permit the distribution
of such ADSs, Shares, Rights or other securities in accordance with applicable
U.S. securities laws.
8
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which shall be as near as practicable to any corresponding record date
set
by the Company) for the determination of the Holders who shall be entitled
to
receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so
entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting, or
solicitation of consents or proxies, of holders of Stock or other Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date in
the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary will not itself exercise
any
voting discretion in respect of any Deposited Securities.
To
the
extent such instructions are not so received by the Depositary from any Holder
on or before the date established by the Depositary for that purpose, the
Depositary shall deem such Holder to have so instructed the Depositary to vote
or cause to be voted the Deposited Securities represented by the ADSs evidenced
by such Holders ADRs in favor of any proposals or recommendations of the
Company. To accomplish this, the Depositary, on the deemed instruction of such
Holders, shall issue a discretionary proxy to the Company to vote the Deposited
Securities in favor of any proposals or recommendations of the Company,
provided, however, that no such instruction shall be deemed given and no
discretionary proxy shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information promptly in writing) that the Company does not wish such proxy
given
or if the proposal has, in the discretion of the Depositary, a materially
adverse effect on the rights of holders of the Shares. Neither the Depositary
nor its agents are responsible for the effect of any vote.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Stock
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
9
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) be under no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this ADR; or (d) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Stock for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, the Company and their respective
agents and each of them may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by them in good
faith to be genuine and to have been signed or presented by the proper party
or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for
the
manner in which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. The Company has agreed to indemnify
the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company under certain circumstances. No disclaimer
of
liability under the Securities Act of 1933 is intended by any provision
hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; provided, however that
such
resignation or removal shall not take effect until the appointment of and
acceptance by a successor depositary is confirmed and made in writing. The
Depositary may appoint substitute or additional Custodians and the term
"Custodian"
refers
to each Custodian or all Custodians as the context
requires.
10
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary without the consent of Holders,
provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Stock to be traded solely in electronic book-entry form and
(ii)
do not in either such case impose or increase any fees or charges to be borne
by
Holders, shall be deemed not to prejudice any substantial rights of Holders.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary may amend or supplement the Deposit Agreement and the ADR at any
time
in accordance with such changed rules. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice
of
such amendment or supplement is given to Holders or within any other period
of
time as required for compliance.
(17)
Termination.
The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 90 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate this Deposit Agreement, after giving the notice set
forth in the preceding sentence of this paragraph (17) at any time after 90
days
has elapsed after the Depositary shall have delivered to the Company its written
resignation, provided
that no
successor depositary shall have been appointed and accepted its appointment
as
provided in Section 13 of the Deposit Agreement and paragraph (15) of this
ADR
before the end of such 90 days. After the date so fixed for termination, the
Depositary and its agents shall perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions
on
Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of one year from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in
a
segregated account the net proceeds of such sales, together with any other
cash
then held by it under the Deposit Agreement, without liability for interest,
in
trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and its indemnification obligations to the Company. After the date so fixed
for
termination, the Company shall be discharged from all obligations under the
Deposit Agreement except for its indemnification and payment obligations to
the
Depositary and its agents.
11