AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of
February 10, 2010 (the “Amendment”), to the Deposit Agreement, dated as
of January 29, 2010 (the "Deposit Agreement"), by and among (i) Daiwa
Securities Group Inc., a company incorporated under the laws of Japan, and its
successors (the "Company"), (ii) Deutsche Bank Trust Company Americas, an
indirect wholly owned subsidiary of Deutsche Bank A.G., acting in its capacity
as depositary, and any successor depositary hereunder (the "Depositary"), and
(iii) all Holders and Beneficial Owners of American Depositary Shares evidenced
by American Depositary Receipts 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 the provisions of the Deposit Agreement, the Company and the
Depositary desire to amend certain provisions of the Deposit Agreement and
Receipt;.
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.
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ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT AND FORM OF ADR
SECTION 2.01. All
references in the Deposit Agreement and form of Receipt to the term "Deposit
Agreement", "Receipt(s)" and "American Depositary Receipt(s)"
shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement and Receipts, as amended hereby.
SECTION
2.02. Section 1.3 of the Deposit Agreement and the
introductory and face of the Receipt are amended to reflect that each American
Depositary Share represents one Share.
SECTION 2.03. The
form of Receipt, reflecting the amendments set forth herein, is amended and
restated to read as 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, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, 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 or governmental charge
need to be paid in Japan on or in respect of such agreements.
2
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 open of business February 22, 2010 (the
“Effective Date”).
SECTION 4.02. Outstanding
Receipts. Receipts issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of Receipt
effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized
and directed to take any and all actions deemed necessary to effect the
foregoing.
SECTION
4.03. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.8 of the Deposit Agreement 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.
SECTION 4.04. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one
instrument.
3
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.
Daiwa
Securities Group Inc.
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By:
______________________________________
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Name:
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Title:
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Deutsche
Bank Trust Company Americas, as
Depositary
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By:
______________________________________
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Name:
Xxxxx Xxxxx
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Title:
Vice President
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By:
______________________________________
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Name:
Xxxxx Xxxxxxxxx
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Title:
Vice
President
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4
Exhibit A
to Amendment to Amended and Restated Deposit Agreement
FORM OF AMERICAN DEPOSITARY
RECEIPT
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Number
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CUSIP
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American
Depositary Shares (Each
American
Depositary Share
representing
one Share)
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AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
DAIWA
SECURITIES GROUP INC.
(Incorporated
under the laws of Japan)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary (herein called the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADSs"), representing deposited ordinary Shares,
including evidence of rights to receive such ordinary Shares, (the "Shares") of
Daiwa Securities Group Inc. (the “Company”), a company incorporated under the
laws of Japan (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each ADS represents one Share deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Sumitomo Mitsui Banking Corporation (the
"Custodian"). The ratio of ADSs to Shares is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary’s
Principal Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
(1) The Deposit
Agreement. This American Depositary Receipt is one of an issue
of American Depositary Receipts ("Receipts"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of January
29, 2010 (as amended from time to time, the "Deposit Agreement"), by and among
the Company, the Depositary, and all Holders and Beneficial Owners from time to
time of Receipts issued thereunder, each of whom by accepting a Receipt agrees
to become a party thereto and becomes bound by all the terms and conditions
thereof. The Deposit Agreement sets forth the rights and obligations of Holders
and Beneficial Owners of 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, other securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and the Custodian.
A-1
Each
owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement and
applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Incorporation
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made
arrangements for the acceptance of the ADSs into DTC. Each Beneficial
Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such
ADSs. The Receipt evidencing the ADSs held through DTC will be
registered in the name of a nominee of DTC. So long as the ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the Receipt registered in the name of DTC (or its nominee) will be
shown on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
(2) Surrender of Receipts and
Withdrawal of Deposited Securities. Upon surrender, at the
Principal Office of the Depositary, of ADSs evidenced by this Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof or
in Section 5.9 of the Deposit Agreement) and (ii) all applicable taxes and/or
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement, the Company’s
Articles of Incorporation, Section 7.8 of the Deposit Agreement, Article (22) of
this Receipt and the provisions of or governing the Deposited Securities and
other applicable laws, the Holder hereof is entitled to Delivery, to him or upon
his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such
Deposited Securities may be delivered in certificated form or by electronic
delivery. ADSs may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such ADSs (if held in
certificated form) or by book-entry delivery of such ADSs to the
Depositary.
A-2
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder 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 (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of the
Deposit Agreement, to the Company’s Articles of Incorporation, and to the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect) or through a book entry Delivery of the Shares, to or upon
the written order of the person or persons designated in the order delivered to
the Depositary as provided above, the Deposited Securities represented by such
ADSs, together with any certificate or other proper documents of or relating to
title for the Deposited Securities or evidence of the electronic transfer
thereof (if available) as the case may be to or for the account of such
person.
The
Depositary may, in its discretion, refuse to accept for surrender a number of
ADSs representing a number of Shares other than a whole number of
Shares. In the case of surrender of a Receipt evidencing a number of
ADSs representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing ADSs representing any remaining fractional Share, or
(ii) sell or cause to be sold the fractional Shares represented by the Receipt
so surrendered and remit the proceeds thereof (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the person surrendering the Receipt. At the
request, risk and expense of any Holder so surrendering a Receipt, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
facsimile transmission. Upon receipt by the Depositary, the
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented 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.
A-3
(3) Transfers, Split-Ups and
Combinations of Receipts. Subject to the terms and conditions
of the Deposit Agreement, the Registrar shall register transfers of Receipts on
its books, upon surrender at the Principal Office of the Depositary of a Receipt
by the Holder thereof in person or by duly authorized attorney, properly
endorsed (in the case of a certificated Receipt) or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice) and duly stamped as may be required by the laws of
the State of New York and of the United States of America and of any other
applicable jurisdiction. Subject to the terms and conditions of the
Deposit Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute a new Receipt or Receipts (and if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver the
same to or upon the order of the person entitled to such Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts surrendered.
Upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts upon payment of the applicable fees
and charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
If the
definition of "Unit" applies and the Companies Act or any other applicable
Japanese law restricts delivery of Shares other than in a Unit, then the right
of a Holder that surrenders Receipts under Section 2.06 of the
Deposit Agreement shall be subject to those restrictions. To the extent those
restrictions prevent the Depositary from effecting delivery of Deposited
Securities under Section 2.06 of the Deposit Agreement, the Depositary shall
effect delivery of Deposited Securities to the extent it may do so, and to the
extent practicable without issuing any fractional ADS the Depositary shall
execute and deliver to the Holder a Receipt evidencing ADSs representing the
Deposited Securities the Depositary could not cause to be
delivered.
(4) Pre-Conditions to
Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or 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 and charges of the
Depositary as provided in the Deposit Agreement and in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts and
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary consistent with the Deposit Agreement and
applicable law.
A-4
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of 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, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Shares
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the U.S.
Securities Act, unless a registration statement is in effect as to such
Shares.
(5) Compliance With Information
Requests; Disclosure of Interests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of Japan and any stock exchange on which the Shares
are, or will be registered, traded or listed, the Company’s Articles of
Incorporation, which are made to provide information as to the capacity in which
such Holder or Beneficial Owner owns ADSs and regarding the identity of any
other person interested in such ADSs and the nature of such interest and various
other matters whether or not they are Holders and/or Beneficial Owner at the
time of such request. The Depositary agrees to use best efforts to forward any
such requests to the Holders and to forward to the Company any such responses to
such requests received by the Depositary.
Without
prejudice to the requirements of applicable law concerning disclosure of
beneficial ownership of Shares, 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 (whether such interest is held in whole
or only in part through Receipts) shall, within five days (excluding Saturdays,
Sundays and legal holidays in Japan) following such event, send written notice
to the Depositary at its Principal Office and to the Company at its principal
office in Japan at GranTokyo Xxxxx Xxxxx, 0-0, Xxxxxxxxxx0-xxxxx, Xxxxxxx-xx,
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 have been acquired or are held; the number
of ADSs and total Shares (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 are held, or in whose name such Shares are
registered in the Company's shareholders=
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).
A-5
Any
Beneficial Owner of more than 5% of all outstanding Shares 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 more
than 1% of the percentage of total Shares to which the beneficial ownership
relates.
As used
herein, the "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 ADS 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 Holder of an ADS.
(6) Liability of Holder for
Taxes, Duties and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any Shares, Deposited Securities, Receipts or ADSs, such tax, or
other governmental charge shall be payable by the Holders and Beneficial Owners
to the Depositary and such Holders and Beneficial Owners shall be deemed liable
therefor. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of the Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, with the
Holder and the Beneficial Owner hereof remaining fully liable for any
deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADSs, register the transfer,
split-up or combination of ADRs and (subject to Article (22) hereof) the
withdrawal of Deposited Securities, until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian and each of their
respective agents, officers, directors, employees and Affiliates for, and hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
(7) Representations and
Warranties of Depositors. Each person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares (and the certificates therefor) are duly authorized, validly issued,
fully paid, non-assessable and were legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares, have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim and
are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities and (v) the Shares presented for deposit have not been stripped of
any rights or entitlements.
A-6
Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way with respect to any person depositing Shares under the Deposit Agreement
or any Holder and Beneficial Owner of ADSs, such person or such Holder and
Beneficial Owner shall be deemed to have waived any claims against the Company
and the Depositary related to the consequences thereof and to have assumed sole
responsibility therefore and the Company and Depositary shall be authorized, at
the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(8) Filing Proofs, Certificates
and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder
and Beneficial Owner agrees, from time to time to provide to the Depositary such
proof of citizenship or residence, taxpayer status, payment of all applicable
taxes or other governmental charges, exchange control approval, legal or
beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of the Deposit Agreement and the provisions of, or
governing, the Deposited Securities or other information as the Depositary deems
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement.
Subject to Article (22) hereof and the terms of the Deposit Agreement, the
Depositary and the Registrar, as applicable, may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other 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 certifications are executed, or such representations and
warranties made, or such information and documentation are
provided.
(9) Charges of
Depositary. The Depositary shall charge the following fees for
the services performed under the terms of the Deposit Agreement; provided,
however, that no fees shall be payable upon distribution of cash dividends so
long as the charging of such fee is prohibited by the exchange, if any, upon
which the ADSs are listed:
(i) to
any person to whom ADSs are issued or to any person to whom a distribution is
made in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other distributions
(except where converted to cash), a fee not in excess of U.S. $ 5.00 per 100
ADSs (or fraction thereof) so issued under the terms of the Deposit Agreement to
be determined by the Depositary;
(ii) to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter
alia, cash distributions made pursuant to a cancellation or withdrawal, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
A-7
(iii) to
any holder of ADSs (including, without limitation, Holders), a fee not in excess
of U.S. $ 2.00 per 100 ADS held for the distribution of cash
proceeds, including cash dividends or sale of rights and other entitlements, not
made pursuant to a cancellation or withdrawal;
(i) to
any holder of ADSs (including, without limitation, Holders), a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or portion thereof) issued upon the exercise of
rights; and
(ii) for
the operation and maintenance costs in administering the ADSs an annual fee of
U.S. $ 2.00 per 100 ADS.
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges:
(i) taxes
(including applicable interest and penalties) and other governmental
charges;
(ii) such
registration fees as may from time to time be in effect for the registration of
Shares or other Deposited Securities with the Foreign Registrar and applicable
to transfers of Shares or other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such
facsimile and electronic e-mail and delivery expenses as are expressly provided
in the Deposit Agreement to be at the expense of the person depositing or
withdrawing Shares or Holders and Beneficial Owners of ADSs;
(iv) the
expenses and charges incurred by the Depositary in the conversion of Foreign
Currency;
(v) such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory requirements
applicable to Shares, Deposited Securities, ADSs and ADRs;
(vi) the
fees and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable;
(vii) any
additional fees, charges, costs or expenses that may be incurred from time to
time by the Depositary and/or any of the Depositary’s agents, including the
Custodian, and/or agents of the Depositary’s agents in connection with the
servicing of Shares, Deposited Securities and/or ADSs (such fees, charges, costs
or expenses to be assessed against Holders of record as at the date or dates set
by the Depositary as it sees fit and collected at the sole discretion of the
Depositary by billing such Holders for such fee or by deducting such fee from
one or more cash dividends or other cash distributions).
Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
A-8
(10) Title to
Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New
York. Notwithstanding any notice to the contrary, the Depositary may
deem and treat the Holder of this Receipt (that is, the person in whose name
this Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or
be subject to any liability under the Deposit Agreement or this Receipt to any
holder of this Receipt or any Beneficial Owner unless such holder is the Holder
of this Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s representative
is the Holder registered on the books of the Depositary.
(11) Validity of
Receipt. This Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose, unless
this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly-authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the execution and delivery of such Receipt by the Depositary
or did not hold such office on the date of issuance of such
Receipts.
(12) Available Information;
Reports; Inspection of Transfer Books. As of the date of the
Deposit Agreement, the Company publishes information in English required to
maintain the exemption from registration under Rule 12g3-2(b) under the Exchange
Act on its Internet Web site (xxx.xxxxx-xxx.xx) or through an electronic
information delivery system generally available to the public in its primary
trading market. Should the Company become subject to the periodic reporting or
other informational requirements under the Exchange Act, it will be required in
accordance therewith to file reports and other information with the U.S.
Securities and Exchange Commission. The Depositary does not assume
any duty to determine if the Company is complying with the current requirements
of Rule 12g3-2(b) under the Exchange Act or to take any action if the
Company is not complying with those requirements.
The
Depositary shall make available during normal business hours on any Business Day
for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the
Company.
A-9
The
Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the
Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in good faith in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Article (22) hereof.
|
Dated:
|
DEUTSCHE
BANK TRUST
COMPANY
AMERICAS, as Depositary
|
|
|
By:
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||
|
Vice
President:
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||
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-10
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(13) Dividends and Distributions
in Cash, Shares, etc. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights securities or other entitlements under the Deposit Agreement,
the Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis, into Dollars
transferable to the United States, promptly convert or cause to be converted
such dividend, distribution or proceeds into Dollars and will distribute
promptly the amount thus received (net of applicable fees and charges of, and
expenses incurred by, the Depositary and taxes and governmental charges
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Any Foreign
Currency received by the Depositary shall be converted upon the terms and
conditions set forth in the Deposit Agreement.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of
confirmation of such deposit, the Depositary shall, subject to and in accordance
with the Deposit Agreement, establish the ADS Record Date and either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs, which represent in
aggregate the number of Shares received as such dividend, or free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
the applicable fees and charges of, and expenses incurred by, the Depositary,
and taxes), or (ii) if additional ADSs are not so distributed, each ADS issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and taxes and governmental charges). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the proceeds upon the terms set forth
in the Deposit Agreement. To the extent the preceding sentence would require the
Depositary to endeavor to sell a number of Shares constituting less than a full
Unit, the Depositary may sell those Shares to the Company in accordance with
applicable law and the Share Handling Regulations of the Company as in effect at
that time, and in such event, the Company agrees to buy such Shares. If
additional Receipts are not so distributed, each ADS shall thenceforth also
represent the additional whole number of Shares distributed upon the Deposited
Securities represented thereby.
A-11
In the
event that (x) the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or (y) the Company fails to timely deliver
the documentation and comfort contemplated in the Deposit Agreement, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable,
and the Depositary shall distribute the net proceeds of any such sale (after
deduction of taxes and/or governmental charges and fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
of the Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation and
comfort required under the Deposit Agreement, determine whether such
distribution is lawful and reasonably practicable. If so, the
Depositary shall, subject to the terms and conditions of the Deposit Agreement,
establish an ADS Record Date according to Article (14) hereof and establish
procedures to enable the Holder hereof to elect to receive the proposed
distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to
receive the distribution in additional ADSs, the distribution shall be
distributed as in the case of a distribution in Shares upon the terms described
in the Deposit Agreement. If such elective distribution is not lawful
or reasonably practicable or if the Depositary did not receive satisfactory
documentation set forth in the Deposit Agreement, the Depositary shall, to the
extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in Japan in respect of the Shares for which no election
is made, either (x) cash or (y) additional ADSs representing such additional
Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the Holder
hereof will be given the opportunity to receive elective distributions on the
same terms and conditions as the holders of Shares.
A-12
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares to be made available to Holders, the Company
shall determine whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to any Holders only if the Company shall have timely requested that such rights
be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes and other governmental charges). Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise such rights to subscribe for Shares (rather than
ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or if the Company requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not lawful
or reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity or otherwise, at such place
and upon such terms (including public and/or private sale) as it may deem
proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes and governmental charges) upon the terms
hereof and in the Deposit Agreement. If the Depositary is unable to
make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to
lapse. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
and/or any other applicable law) of the rights or the securities to which any
rights relate may be required in order for the Company to offer such rights or
such securities to Holders and to sell the securities represented by such
rights, the Depositary will not distribute such rights to the Holders (i) unless
and until a registration statement under the Securities Act (and/or such other
applicable law) covering such offering is in effect or (ii) unless the
Depositary has received any and all documentation and comfort it requires,
consistent with Section 5.7 of the Deposit Agreement, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws. In the event that the Company, the
Depositary or the Custodian shall be required to withhold and does withhold from
any distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders shall be
reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes and charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
A-13
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders, the Depositary shall
determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have timely requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution is lawful and reasonably
practicable. Upon satisfaction of such conditions, the Depositary
shall distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes and governmental charges withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the proceeds of such
sale received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes and governmental charges) to
the Holders upon the terms hereof and of the Deposit Agreement. If
the Depositary is unable to sell such property, the Depositary may dispose of
such property in any way it deems reasonably practicable under the
circumstances.
(14) Fixing of Record
Date. Whenever necessary in connection with any distribution
(whether in cash, Shares, rights or other distribution), or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, or any other matter, the Depositary shall fix a record date ("ADS
Record Date") as close as practicable to the record date fixed by the Company
with respect to the Shares (if applicable) for the determination of the Holders
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, or to give or withhold such
consent, or to receive such notice or solicitation or to otherwise take action,
or to exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS or for any other reason. Subject to applicable
law and the terms and conditions of this Receipt and the Deposit Agreement, only
the Holders of record at the close of business in New York on such ADS Record
Date shall be entitled to receive such distributions, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
A-14
(15) Voting of Deposited
Securities. As soon as practicable after receipt of notice of
any meeting at which the holders of Shares are entitled to vote, or of
solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, mail by ordinary, regular mail delivery or by electronic e-mail (or as
otherwise agreed by the Company and the Depositary), unless otherwise agreed in
writing by the Company and the Depositary, to Holders as of the ADS Record Date:
(a) such notice of meeting or solicitation of consent or proxy; (b) a statement
that the Holders at the close of business on the ADS Record Date will be
entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company’s Articles of Incorporation and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADSs; and (c) a brief statement as to
the manner in which such instructions may be given. Upon the timely receipt of
written instructions of a Holder on the ADS Record Date, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law and the
provisions of the Company’s Articles of Incorporation and the provisions of the
Deposited Securities, to vote or cause the Custodian to vote the Shares and/or
other Deposited Securities represented by ADSs evidenced by such Receipt in
accordance with such voting instructions. So long as Japanese law and the
Articles of Incorporation of the Company provide that votes may only be cast
with respect to one or more whole Units of Shares (or other units of other
Deposited Securities), the Depositary shall aggregate voting instructions,
including instructions deemed given in accordance with the last sentence of this
paragraph, to the extent such instructions are the same and vote such whole
Units of Shares (or other units of other Deposited Securities) in accordance
with the instructions. If after aggregation of all instructions to vote received
or deemed received by the Depositary, any portion of the instructions
constitutes instructions with respect to less than a whole Unit of Shares (or
less than a whole unit of other Deposited Securities), the Depositary shall not
vote or cause to be voted the Shares or other Deposited Securities to which such
portion of the instructions or deemed instructions apply.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited Securities
represented by ADSs for which no specific voting instructions are received by
the Depositary from the Holder shall not be voted. Notwithstanding the
foregoing, if (i) the Company made a request to the Depositary as contemplated
by the second sentence of this Section and complied with the following paragraph
of this Section, (ii) the Depositary has sought voting instruction from Holders,
(iii) no instructions are received by the Depositary from a Holder with respect
to an amount of Shares or other Deposited Securities represented by the Holder’s
American Depositary Shares on or before the date established by the Depositary
for that purpose and (iv) the Depositary has been provided with a legal opinion
from the Company's Japanese counsel in form and substance reasonably acceptable
to it, the Depositary shall deem that Holder to have instructed the
Depositary to give, and the Depositary shall give, a discretionary proxy to a
person designated by the Company with respect to that amount of Shares or other
Deposited Securities, except that such instruction shall not be deemed to have
been given and the Depositary shall not give a discretionary proxy with respect
to any matter as to which the Company informs the Depositary (and the Company
agrees to provide that information as promptly as practicable in writing, if
applicable) that (x) the Company does not wish to receive a discretionary proxy,
(y) substantial opposition exists or (z) the matter materially and adversely
affects the rights of holders of Shares.
A-15
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote.
(16) Changes Affecting Deposited
Securities. Upon any split-up, subdivision
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation or sale of assets affecting the Company or to which it
otherwise is a party, any securities which shall be received by the Depositary
or a Custodian in exchange for, or in conversion of or replacement or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law,
be treated as new Deposited Securities under the Deposit Agreement, and the
Receipts shall, subject to the provisions of the Deposit Agreement and
applicable law, evidence ADSs representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of fees and charges of, and expenses incurred by, the Depositary and taxes and
governmental charges) for the account of the Holders otherwise entitled to such
securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
A-16
(17) Exoneration. Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account of,
or delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this Receipt, by reason of any provision of any present or
future law or regulation of the United States or any state thereof, Japan or any other country,
or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraints or by reason of any provision, present or future of the Company’s
Articles of Incorporation or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control, (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company’s Articles of Incorporation or provisions of or governing
Deposited Securities, (iii) for any action or inaction of the Depositary, the
Custodian or the Company or their respective controlling persons or agents in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, any Beneficial Owner or
authorized representative thereof, or any other person believed by it in good
faith to be competent to give such advice or information, (iv) for any inability
by a Holder or Beneficial Owner to benefit from any distribution, offering,
right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available
to Holders of ADS or (v) for any special, consequential, indirect or punitive
damages for any breach of the terms of the Deposit Agreement. The Holders and
Beneficial Owners shall indemnify the Depositary, the Company, the Custodian and
any of their respective officers, directors, employees, agents and Affiliates
against, and hold each of them harmless from, any claims by any governmental
authority with respect to taxes, additions to tax, penalties or interest arising
out of any refund of taxes, reduced rate of withholding at source or other tax
benefit obtained. The Depositary, its controlling persons, its
agents, any Custodian and the Company, its controlling persons and its agents
may rely and shall be protected in acting upon any written notice, request,
opinion or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties. No disclaimer of
liability under the Securities Act is intended by any provision of the Deposit
Agreement.
A-17
(18) Standard of
Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons (except for the Company’s and the Depositary’s obligations specifically
set forth in Section 5.8 of the Deposit Agreement), provided, that the Company
and the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
negligence or willful misconduct. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast (provided that
any such action or omission is in good faith) or the effect of any
vote. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company. The Depositary is under
no obligation to provide the Holders and Beneficial Owners with any information
about the tax status of the Company. The Depositary shall not incur any
liability for any tax consequences that may be incurred by Holders and
Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the
Company (or any of its subsidiaries) being treated as a "Passive Foreign
Investment Company" (as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise. In no event shall the
Depositary or any of its directors, officers, employees, agents (including,
without limitation, its Agents) and/or Affiliates, or any of them, be liable for
any indirect, special, punitive or consequential damages to the Company,
Holders, Beneficial Owners or any other person.
(19) Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of resignation delivered to the Company, such resignation to be
effective on the earlier of (i) the 90th day
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal which notice
shall be effective on the later of (i) the 90th day
after delivery thereof to the Depositary, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal. In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary which shall
be a bank or trust company having an office in the Borough of Manhattan, the
City of New York. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
A-18
(20) Amendment/Supplement. Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until 30 days after notice of such amendment or supplement shall have
been given to the Holders of outstanding Receipts. Notice of any amendment to
the Deposit Agreement or form of Receipts shall not need to describe in detail
the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the
text of such amendment (i.e., upon retrieval from the Commission's, the
Depositary's or the Company's website or upon request from the Depositary). The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs or
Shares 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 materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
ADS, to consent and agree to such amendment or supplement and to be bound by the
Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
A-19
(21) Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary may
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes and/or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders 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, subject to the conditions and restrictions set forth in the Deposit
Agreement, 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, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes and/or governmental charges or assessments). At any time
after the expiration of 60 days from the date of termination of the Deposit
Agreement, 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, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered, such Holders
thereupon becoming general creditors of the Depositary with respect to such net
proceeds until such net proceeds are either claimed by such Holders on surrender
of their Receipts or are escheated in accordance with applicable
law. After making such sale, the Depositary shall be discharged from
all obligations under the Deposit Agreement with respect to the Receipts and the
Shares, Deposited Securities and ADSs, except to account for such net proceeds
and other cash (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes and/or governmental charges or
assessments). Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations under the Deposit Agreement except as set
forth in the Deposit Agreement. The obligations under the terms of
the Deposit Agreement and Receipts of Holders and Beneficial Owners of ADSs
outstanding as of the effective date of any termination shall survive such
effective date of termination and shall be discharged only when the applicable
ADSs are presented by their Holders to the Depositary for cancellation under the
terms of the Deposit Agreement and the Holders have each satisfied any and all
of their obligations hereunder (including, but not limited to, any payment
and/or reimbursement obligations which relate to prior to the effective date of
termination but which payment and/or reimbursement is claimed after such
effective date of termination).
A-20
(22) Compliance with U.S.
Securities Laws; Regulatory Compliance. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
(23)
Certain Rights of the
Depositary; Limitations. Subject to the further terms and
provisions of this Article (23), the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. In its capacity
as Depositary, the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior
to the receipt and cancellation of ADSs pursuant to Section 2.6 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) accompanied by or subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (1)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (2) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (3) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (4) agrees to any additional
restrictions or requirements that the Depositary deems appropriate; (b) at all
times fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate; (c) terminable by the Depositary
on not more than five (5) business days' notice; and (d) subject to such further
indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of ADSs
and Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant). Nothing in the foregoing shall be interpreted to
authorize the lending of, and the Depositary shall not lend, Shares held by it
as Depositary.
A-21
(24) Ownership
Restrictions. Holders and Beneficial Owners shall comply
with any limitations on ownership of Shares under the Articles of Incorporation
of the Company or applicable Japanese law as if they held the number of Shares
their ADSs represent. The Company shall inform the Holders,
Beneficial Owners and the Depositary of any such ownership restrictions in place
from time to time.
(25) Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
A-22
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
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Dated:
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Name:
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By:
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Title:
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NOTICE:
The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority to
act in such capacity, if not on file with the Depositary, must be
forwarded with this Receipt.
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SIGNATURE
GUARANTEED
____________________________
A-23
