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DEPOSIT AGREEMENT
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by and among
YAMAHA CORPORATION
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of , 2003
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of , 2003, by and among (i) YAMAHA CORPORATION
(Yamaha Kabushiki Kaisha), a company incorporated under the laws of Japan, and
its successors (the "Company"), (ii) DEUTSCHE BANK TRUST COMPANY AMERICAS, a New
York corporation, 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 hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares from time to time and the
creation and issuance of American Depositary Shares representing the Shares so
deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term in
Rule 144 of the Securities Act.
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)" American Depositary
Share(s) shall mean the securities represented by the rights and interests in
the Deposited Securities granted to the Holders and Beneficial Owners pursuant
to the terms and conditions of this Deposit Agreement and evidenced by the
American Depositary Receipts issued hereunder. Each American Depositary Share
shall represent the right to receive one (1) Share, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.7 with respect to which additional
American Depositary Receipts are not executed and delivered, and
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thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
SECTION 1.3 "ADS Record Date" shall have the meaning given to such term in
Section 4.6.
SECTION 1.4 "Beneficial Owner" shall mean as to any ADS, any person or
entity that, directly or indirectly, through any contract, trust, arrangement,
understanding relationship or otherwise has an interest in any ADSs. A
Beneficial Owner need not be the Holder of the ADR evidencing such ADSs. A
Beneficial Owner may exercise any rights or receive any benefits hereunder
solely through the Holder of the ADR(s) evidencing the ADSs in which such
Beneficial Owner has an interest.
SECTION 1.5 "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which Receipts
are traded are closed.
SECTION 1.6 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United States.
SECTION 1.7 "Company" shall mean Yamaha Corporation, a company (Yamaha
Kabushiki Kaisha) incorporated and existing under the laws of Japan, and its
successors.
SECTION 1.8 "Custodian" shall mean, as of the date hereof, Sumitomo Mitsui
Banking Corporation, having its principal office at 0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx, as the custodian for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereinafter be
appointed by the Depositary pursuant to the terms of Section 5.5 as a successor
or an additional custodian or custodians hereunder, as the context shall
require. The term "Custodian" shall mean all custodians, collectively.
SECTION 1.9 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate, including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute", "issue", "register", "surrender",
"transfer" or "cancel" refer to applicable entries or movements to or within
DRS/Profile.
SECTION 1.10 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION 1.11 "Depositary" shall mean Deutsche Bank Trust Company Americas,
a New York corporation, in its capacity as depositary under the terms of this
Deposit Agreement, and any successor depositary hereunder.
SECTION 1.12 "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions
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of Section 4.6. The collateral delivered in connection with Pre-Release
Transactions described in Section 2.10 hereof shall not constitute Deposited
Securities.
SECTION 1.13 "Dollars" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.14 "DRS/Profile" means the system for the uncertificated
registration of ownership of securities established by the DTC and utilized by
the Depositary pursuant to which ownership of ADSs is recorded on the books of
the Depositary without the issuance of a physical certificate and transfer
instructions may be given to allow for the automated transfer of ownership
between the books of DTC and the Depositary. Ownership of ADSs recorded in
DRS/Profile are evidenced by periodic statements issued by the Depositary to the
Holders entitled thereto.
SECTION 1.15 "DTC" shall mean The Depository Trust Company, the central
book-entry clearinghouse and settlement system for securities traded in the
United States, and any successor thereto.
SECTION 1.1.6 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.17 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "Foreign Currency" shall mean any currency other than Dollars.
SECTION 1.19 "Foreign Registrar" shall mean the entity, if any, that
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.20 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. A Holder shall
be deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
SECTION 1.21 "Indemnified Person" and "Indemnifying Person" shall have the
meaning set forth in Section 5.8 hereof.
SECTION 1.22 "Pre-Release" and "Pre-Release Transaction" shall have the
meaning set forth in Section 2.10 hereof.
SECTION 1.23 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.24 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this Deposit
Agreement, as such Receipts may be amended from time to time in accordance with
the provisions of this Deposit
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Agreement. References to Receipts shall include physical certificated Receipts
as well as ADSs issued through DRS/Profile, unless the context otherwise
requires.
SECTION 1.25 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register ownership of Receipts and
transfer of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed by and may be appointed by the Depositary.
SECTION 1.26 "Restricted Securities shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States,
Japan, or the Company's Articles of Incorporation and Share Handling Regulations
or under the regulations of an applicable securities exchange unless, in each
case, such Shares are being sold to persons other than an Affiliate of the
Company in a transaction (x) covered by an effective resale registration
statement or (y) exempt from the registration requirements of the Securities Act
(as hereinafter defined), and the Shares are not, when held by such person,
Restricted Securities.
SECTION 1.27 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.28 "Shares" shall mean ordinary shares in registered form of the
Company, heretofore validly issued and outstanding and fully paid or hereafter
validly issued and outstanding and fully paid. References to Shares shall
include evidence of rights to receive Shares, whether or not stated in the
particular instance; provided, however, that in no event shall Shares include
evidence of rights to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which pre-emptive rights have
theretofore not been validly waived or exercised; provided further, however,
that, if there shall occur any split-up, consolidation, reclassification,
conversion or any other event described in Section 4.8, in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the extent permitted by
law, represent the successor securities resulting from such split-up,
consolidation, exchange, conversion, reclassification or event.
SECTION 1.29 "United States" or "U.S." shall mean the United States of
America.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as exclusive depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit Agreement. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for
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all purposes to (a) be a party to and bound by the terms of this Deposit
Agreement 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 this Deposit Agreement, 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 this
Deposit Agreement (the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No definitive Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, in either case as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless certificated
Receipts are specifically requested by the Holder. Holders and Beneficial Owners
shall be bound by the terms and conditions of this Deposit Agreement and of the
form of Receipt, regardless of whether their Receipts are certificated or issued
through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of Receipt,
title to a Receipt (and to the American Depositary Shares evidenced thereby),
when properly endorsed (in the case of certificated Receipts) or upon delivery
to the Depositary of proper instruments of transfer, shall be transferable by
delivery with the same effect as in the case of a negotiable instrument under
the laws of the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Holder thereof as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes and neither the Depositary
nor the Company will have any obligation or be subject
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to any liability under the Deposit Agreement to any holder of a Receipt, unless
such holder is the Holder thereof.
SECTION 2.3 Deposits.
(a) Subject to the terms and conditions of this Deposit Agreement and
applicable law, Shares or evidence of rights to receive Shares (other than
Restricted Securities) may be deposited by any person (including the Depositary
in its individual capacity but subject, however, in the case of the Company or
any Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not
the transfer books of the Company or the Foreign Registrar, if any, are closed,
by Delivery of the Shares to the Custodian. Every deposit of Shares shall be
accompanied by the following: (A)(i) in the case of Shares issued in registered
form, appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian, (ii) in the case of Shares issued in bearer form, such Shares
or the certificates representing such Shares and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement, (C) if the
Depositary so requires, a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in Japan, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument satisfactory
to the Depositary or the Custodian which provides for the prompt transfer by any
person in whose name the Shares are or have been recorded to the Custodian of
any distribution, or right to subscribe for additional Shares or to receive
other property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be satisfactory to the Depositary or the
Custodian and (ii) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Depositary, the Custodian or any nominee. No Share shall be accepted for deposit
unless accompanied by confirmation or such additional evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of Japan and any
necessary approval has been granted by any governmental body in Japan, if any,
which is then performing the function of the regulator of currency exchange. The
Depositary may issue Receipts 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. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares. The
Depositary will use commercially reasonable efforts to comply with reasonable
written instructions of the Company that the Depositary shall not
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accept for deposit hereunder any Shares specifically identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with the securities laws in the United States.
(b) As soon as practicable after receipt of any permitted deposit hereunder
and compliance with the provisions of this Deposit Agreement, the Custodian
shall present the Shares so deposited, together with the appropriate instrument
or instruments of transfer or endorsement, duly stamped, to the Foreign
Registrar for transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or a nominee, in each case
for the account of the Holders and Beneficial Owners, at such place or places as
the Depositary or the Custodian shall determine.
(c) In the event any Shares are deposited which entitle the holders thereof
to receive a per-share distribution or other entitlement in an amount different
from the Shares then on deposit, the Depositary is authorized to take any and
all actions as may be necessary (including, without limitation, making the
necessary notations on Receipts) to give effect to the issuance of such ADSs and
to ensure that such ADSs are not fungible with other ADSs issued hereunder until
such time as the entitlement of the Shares represented by such non-fungible ADSs
equals that of the Shares represented by ADSs prior to the original such
deposit. The Company agrees to give timely written notice to the Depositary if
any Shares issued or to be issued contain rights different from those of any
other Shares theretofore issued and shall assist the Depositary with the
establishment of procedures enabling the identification of such non-fungible
Shares upon Delivery to the Custodian.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of any
Shares pursuant to Section 2.3, the Custodian shall notify the Depositary of
such deposit and the person or persons to whom or upon whose written order a
Receipt or Receipts are deliverable in respect thereof and the number of
American Depositary Shares to be evidenced thereby. Such notification shall be
made by letter, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex, SWIFT, facsimile
or electronic transmission. After receiving such notice from the Custodian, the
Depositary, subject to the provisions of this Deposit Agreement (including,
without limitation, the payment of the fees and expenses of the Depository for
the execution and delivery of such Receipt or Receipts set forth in Section
5.095.9 and Exhibit A hereto and all taxes, governmental charges and fees
payable in connection with such deposit), shall issue the ADSs representing the
Shares so deposited to or upon the order of the person or persons named in the
notice delivered to the Depositary and shall execute and deliver a Receipt
registered in the name or names requested by such person or persons evidencing
in the aggregate the number of American Depositary Shares to which such person
or persons are entitled. Nothing herein shall prohibit any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary, or, if a Registrar (other than the
Depositary) for the Receipts shall have been appointed, the Registrar, subject
to the terms and conditions of this Deposit Agreement, 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
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authorized attorney, properly endorsed in the case of a certificated Receipt or
accompanied by, or in the case of DRS/Profile Receipts receipt by the Depositary
of, 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 and any other applicable law,
provided that the Depositary may close the register at any time when deemed
expedient by it in connection with its duties hereunder or reasonably requested
by the Company. Subject to the terms and conditions of this Deposit Agreement,
including payment of the applicable fees and charges of the Depositary set forth
in Section 5.9 and Exhibit A hereto, the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of American Depositary Shares as
those evidenced by the Receipts surrendered.
(b) Combination & Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit A hereto, execute and deliver a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In carrying
out its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Holders or persons
entitled to such Receipts and will be entitled to protection and indemnity, in
each case to the same extent as the Depositary. Such co-transfer agents may be
removed and substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.5 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of this Deposit Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through DRS/Profile,
or vice versa, execute and deliver a certificated Receipt or DRS/Profile
statement, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or DRS/Profile statement,
as the case may be, substituted.
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares 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 of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit A hereof) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Articles of Incorporation, and any other
provisions of or governing the Deposited Securities and other applicable laws,
the Holder of such American Depositary Shares shall be entitled to Delivery, to
him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares so surrendered. American Depositary Shares may be
surrendered for the purpose of withdrawing Deposited Securities by delivery of a
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Receipt evidencing such American Depositary Shares (if held in certificated
form) or by book-entry delivery of such American Depositary Shares to the
Depositary.
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 or through a book
entry delivery of the Shares (in either case, subject to Sections 2.7, 3.1, 3.2,
5.9, and to the other terms and conditions of this Deposit Agreement, to the
Company's Articles of Incorporation, to the provisions of or governing the
Deposited Securities and to applicable laws, now or hereafter in effect) 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 American Depositary Shares, together with any certificate or
other proper documents of or relating to title of the Deposited Securities as
may be legally required, 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 American Depositary Shares representing a number other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares 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 American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) 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 cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, 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
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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 Section 5.9 and Exhibit A hereof, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matter contemplated by Section 3.1 hereof and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or American Depositary Shares or to the
withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions of
this Deposit Agreement and applicable law.
(b) Additional Limitations. 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 transfers 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 on
which the Receipts or Shares are listed, or under any provision of this 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 Section 7.8 hereof.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, unless the Depositary has notice that such ADR has
been acquired by a bona fide purchaser, subject to Section 5.9 hereof, the
Depositary shall execute and deliver a new Receipt (which, in the discretion of
the Depositary may be issued through DRS/Profile unless specifically requested
otherwise) in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt
in substitution for a destroyed, lost or stolen Receipt, the Holder thereof
shall have (a) filed with the Depositary (i) a written request for such
execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond in
form and amount acceptable to the Depositary and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled in accordance with its customary practices. Cancelled Receipts shall
not be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose.
SECTION 2.10 Pre-Release. Subject to the further terms and provisions of
this Section 2.10, 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. In its capacity as Depositary, the Depositary may (i)
issue ADSs prior to the receipt of Shares (each such transaction a "Pre-Release
Transaction") as provided below and (ii) deliver Shares upon the receipt and
cancellation of ADSs that were issued in a Pre-Release Transaction, but for
which Shares may not yet have been received. 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) subject to a written
agreement whereby the person or entity (the
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"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, United States 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 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 the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 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 or the Custodian 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 this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation as the Depositary may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof, or to the extent not limited by the terms of Section 7.8
hereof, the delivery of any Deposited Securities, until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's and the Company's
satisfaction. The Depositary shall from time to time on the written request
advise the Company of the availability of any such proofs, certificates or other
information and shall, at the Company's sole expense, provide or otherwise make
available copies thereof to the Company upon written request thereof by the
Company, unless such disclosure is prohibited by law. Each Holder and Beneficial
Owner agrees to provide any information requested by the Company or the
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Depositary pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or future
tax or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any ADR or any Deposited Securities or American
Depositary Shares, 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 a 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 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 ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 7.8) 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 to 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. The obligations of Holders and Beneficial Owners of
Receipts under this Section 3.2 shall survive any transfer of Receipts, any
surrender of Receipts and withdrawal of Deposited Securities, or the termination
of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. 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 American Depositary Shares
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. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
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.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any other
provision of this Deposit Agreement, the Articles of Incorporation of the
Company and applicable law, each Holder and Beneficial Owner agrees to (a)
provide such information as the Company or the Depositary may request pursuant
to law (including, without limitation, relevant Japanese law, any applicable law
of the United States, the Articles of Incorporation of the Company, any
resolutions of the Company's Board of Directors adopted pursuant to
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such Articles of Incorporation, the requirements of any markets or exchanges
upon which the Shares, ADSs or Receipts are listed or traded, or to any
requirements of any electronic book-entry system by which the ADSs or Receipts
may be transferred), and (b) be bound by and subject to applicable provisions of
the laws of Japan, the Articles of Incorporation of the Company and the
requirements of any markets or exchanges upon which the ADSs, Receipts or Shares
are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly, in
each case irrespective of whether or not they are Holders or Beneficial Owners
at the time such request is made. The Depositary agrees to use its reasonable
efforts to forward upon the request of the Company, and at the Company's
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the Depositary.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. 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 terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (pursuant to Section 4.6
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of American Depositary Shares 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
(to the first decimal place), and any first decimal place balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts outstanding at the time of
the next distribution, irrespective of whether the Holder or Beneficial Owner
continues to be such at the time of the next distribution. Holders and
Beneficial Owners understand that in converting Foreign Currency, amounts
received on conversion are calculated at a rate which exceeds three or four
decimal places (the number of decimal places used by the Depositary to report
distribution rates). The 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. 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 American Depositary Shares
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. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
The Depositary will forward to the Company or its agent such information from
its records as the Company may reasonably request to enable the Company or its
agent to file necessary reports
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with governmental agencies, such reports necessary to obtain benefits under the
applicable tax treaties for the Holders and Beneficial Owners of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a 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 any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary shall
establish the ADS Record Date upon the terms described in Section 4.7 and shall,
subject to Section 5.9 hereof, distribute to the Holders as of the ADS Record
Date in proportion to the number of American Depositary Shares held as of the
ADS Record Date by them respectively, additional American Depositary Shares,
which represent in the aggregate the number of Shares received as such free
distribution, subject to the other terms of this Deposit Agreement (including,
without limitation, (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from the
Company (including an opinion of its counsel) that such distribution does not
require registration under the Securities Act or is exempt from registration
under the provisions of the Securities Act. To the extent such distribution may
be withheld, the Depositary may dispose of all or a portion of such distribution
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 applicable (a) taxes and
(b) fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1. If additional American
Depositary Shares are not so distributed, each American Depositary Share 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 (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes).
SECTION 4.3 Distribution of Rights to Purchase Shares. Whenever the Company
intends to distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares, the Company shall, after its board of
directors' approval (if applicable), give notice thereof to the Depositary
sufficiently prior (as determined by the Depositary in its sole discretion) to
the proposed distribution. Upon receipt of such notice, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) if so requested by the
Depositary, the Depositary shall have received satisfactory documentation within
the terms of Section 5.7, and (iii) the Depositary shall have determined that
such distribution of rights is lawful and reasonably practicable. If the above
conditions are not satisfied, the Depositary may sell such rights in proportion
to the number of American Depositary Shares held as of the ADS Record Date, to
whom it has determined that it may not lawfully or practicably make such rights
available, and distribute proceeds of such sales (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms set forth in Section 4.1. If the Depositary is unable to make any rights
available to Holders for any reason, the Depositary may do nothing thereby
allowing such rights to lapse. In the event all conditions set forth above are
satisfied, the Depositary shall
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establish an ADS Record Date (upon the terms described in Section 4.6) 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
applicable (a) fees and charges of, and expenses incurred by the Depositary and
(b) taxes and other governmental charges). Nothing herein shall obligate the
Depositary to make available to the Holders a method to exercise such rights to
subscribe for Shares (rather than ADSs).
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 to the contrary in this Section 4.3, if
registration (under the Securities Act 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 covering such offering is in effect or (ii) unless the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactory to the Depositary, 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 or 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 be able 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.
SECTION 4.4 Distributions Other Than Cash, Shares or Rights to Purchase
Shares. Subject to Section 4.12 and Section 5.9, whenever the Company intends to
distribute to the holders of Deposited Securities property other than cash,
Shares or rights to purchase additional Shares, the Company shall give notice
thereof to the Depositary at least two (2) weeks prior to the proposed
distribution and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution to be made to Holders of ADSs, 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) if so
requested by the Depositary, the Depositary shall have received satisfactory
documentation within the terms of Section 5.7,
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and (iii) the Depositary shall have determined that such distribution is lawful
and reasonably practicable. Upon receipt of satisfactory documentation and the
request of the Company to distribute property to Holders of ADSs and after
making the requisite determinations set forth above, the Depositary shall cause
the securities or property received by it to be distributed to the Holders
entitled thereto, after deduction or upon payment of any fees and expenses of
the Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares held by them respectively as of the ADS
Record Date, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act in order to be distributed to
Holders) the Depository deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and proceeds of any such sales (net of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) shall be distributed
by the Depositary to Holders entitled thereto as in the case of a distribution
received in cash.
SECTION 4.5 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the
Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any fees, expenses, taxes or other governmental
charges incurred in the process of such conversion) in accordance with the terms
of the applicable sections of this Deposit Agreement. If the Depositary shall
have distributed warrants or other instruments that entitle the holders thereof
to such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in
either case without liability for interest thereon. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions, the date of
delivery of any Receipt or otherwise.
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.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary may file such
application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
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If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
SECTION 4.6 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 American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary, after consultation with the Company,
shall fix a record date (the "ADS Record Date"), as close as practicable to the
record date fixed by the Company with respect to the Shares, 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 American Depositary Share.
Subject to applicable law and the provisions of Section 4.1 to 4.64.5 and to the
other terms and conditions of this 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 distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
SECTION 4.7 Voting of Shares.
(a) Subject to the next sentence, 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, the Depositary shall
fix the ADS Record Date in respect of such meeting or solicitation of 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 two (2) weeks
prior to the date of such vote or meeting) and provided no U.S. legal
prohibitions exist, mail by regular, ordinary mail delivery or otherwise
distribute to Holders as of the ADS Record Date: (i) such notice of meeting or
solicitation of consent or proxy; (ii) a statement that the Holders at the close
of business on the ADS Record Date will be entitled, subject to any applicable
law, the Company's Articles of Incorporation and the provisions of or governing
the Deposited Securities 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 American Depositary Shares; and (iii) a brief
statement as to the manner in which such instructions may be given. Voting
instructions may be given only in respect of an integral number of one hundred
(100) ADSs, or such other number of ADSs as is necessary to correspond to an
integral number of one hundred (100) Shares ("ADS Unit(s)"). Upon the timely
receipt of written instructions of a Holder of American Depositary Shares on the
ADS Record Date of voting instructions in the manner specified by the
Depositary, the
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Depositary shall endeavor, insofar as practicable and permitted under applicable
law, the provisions of this Deposit Agreement, the Company's Articles of
Incorporation and the provisions of or governing the Deposited Securities, to
vote or cause the Custodian to vote the Shares (in person or by proxy)
represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions. To the extent the aggregate number of
ADSs voted for and against a proposal do not constitute an integral number of
ADS Units, the remainder of the aggregate number of votes received in excess of
the highest integral multiple of an ADS Unit will be disregarded.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting. Subject to applicable law, if the
Depositary fails to timely receive voting instructions from any Holder of ADSs,
or if the Depositary timely receives voting instructions from a Holder which
fail to specify the manner in which the Depositary is to vote the Shares
represented by such Holder's ADRs on or before the date established by the
Depositary for such purpose, the Depositary shall deem such Holder to have
instructed the Depositary to vote such Shares, or to cause such Shares to be
voted, in accordance with any recommendation of the Company with respect to a
particular resolution or other matter submitted to such vote, and accordingly
the Depositary shall either vote or cause to be voted such Shares, or give a
discretionary proxy to vote the relevant Shares in favor of such person as the
Company may specify; provided that (x) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
that (i) substantial opposition exists or (ii) the rights or holders of Shares
will be adversely affected and (y) the Depositary shall not have any obligation
to give such discretionary proxy to a person designated by the Company if (i)
the Company shall not have delivered to the Depositary the representation and
indemnity letter described in the next paragraph and (ii) the person designated
to receive the discretionary proxy shall not have delivered to the Depositary an
undertaking stating that such person shall not exercise the rights granted to
such person pursuant to the terms of such proxy in contravention of the
provisions of (x) above.
Prior to requesting the delivery of a discretionary proxy upon the terms
set forth herein, the Company shall deliver to the Depositary a certificate of a
senior officer of the Company (i) describing the person to whom any
discretionary proxy should be given, (ii) confirming that the Company wishes
such discretionary proxy to be given, (iii) certifying that the Company has not
requested and shall not request the discretionary proxy be given as to any
matter as to which substantial opposition exists or which may adversely affect
the rights of holders of Shares and (iv) agreeing to indemnify the Depositary
and the Custodian and their respective officers, directors and employees
against, and hold each of them harmless from, any liability or expense which may
arise out of or in connection with any action of the Depositary or the Custodian
in granting such discretionary proxy.
If, at a time of a vote, for any reason the voting instructions deemed
given herein would not be valid and binding on the Holders, or the Depositary is
unable to obtain the representation and indemnity letter above, the Depositary
shall not vote the Shares as to which specific instructions have not been
received.
However, if the Depositary is not permitted by applicable law or the
Company's Articles of Incorporation to vote the Shares represented by ADRs of
the relevant Holder at the relevant shareholders meeting, the Depositary will
not exercise the voting rights attributable to such Shares at such shareholders
meeting.
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Notwithstanding the above, save for applicable provisions of Japanese law, and
in accordance with the terms of Section 5.3, the Depositary shall not be liable
for any failure to carry out any instructions to vote any of the Shares.
There can be no assurance that Holders generally or any Holder 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.
(b) Notwithstanding any other provision hereof, each owner, Holder (other
than DTC or its nominee, Cede & Co.) or Beneficial Owner owning more than five
per cent (5%) of the total voting equity securities of the Company, directly in
the form of Shares or indirectly in the form of ADRs, instructing the Depositary
to exercise any voting rights on behalf of such owner, Holder or Beneficial
Owner shall be deemed to represent and warrant that it has filed a Report on
Large Shareholding with the competent authority of Japan pursuant to the
provisions of the Securities & Exchange Law of Japan (Law No. 25 of 1948, as
amended, the "SEL").
(c) Notwithstanding any other provision hereof, each owner, Holder (other
than DTC or its nominee, Cede & Co.) or Beneficial Owner owning at least ten per
cent (10%) of the total voting equity securities of the Company, directly in the
form of Shares or indirectly in the form of ADRs, instructing the Depositary to
exercise any voting rights on behalf of such owner, Holder or Beneficial Owner
shall be deemed to represent and warrant that it has filed a Report on Inward
Direct Investment with the competent authority of Japan pursuant to the
provisions of the Foreign Exchange and Foreign Trade Law of Japan (Law No. 228
of 1949, as amended).
(d) Notwithstanding any other provision hereof, each owner, Holder (other
than DTC or its nominee, Cede & Co.) or Beneficial Owner owning more than
one-third of the total voting equity securities of the Company, directly in the
form of Shares or indirectly in the form of ADRs, instructing the Depositary to
exercise any voting rights on behalf of such owner, Holder or Beneficial Owner
shall be deemed to represent and warrant that it has complied with the
provisions of the SEL concerning the public tender offer and made a bid for the
remaining voting equity securities of the Company as set out therein.
SECTION 4.8 Changes Affecting Deposited Securities. Upon any split-up,
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is
otherwise a party, any securities which shall be received by the Depositary or
the 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 this Deposit Agreement, and the
Receipts shall, subject to the provisions of this Deposit Agreement and
applicable law, evidence American Depositary Shares 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 an opinion of counsel to the
Company satisfactory to the Depositary that such distributions are not in
violation of any applicable laws or regulations, execute and deliver additional
Receipts, 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 the form of Receipt contained in Exhibit A
hereto, specifically describing such new Deposited Securities and/or corporate
change. The Company agrees to, jointly with the Depositary, amend the
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Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of Receipts. 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 an opinion of the Company's counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, 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 (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. 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 to 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.
SECTION 4.9 Available Information. The Company is exempt from the periodic
reporting requirements of the Exchange Act. The Company will file with the
Commission such notices, reports and communications which are made generally
available in the Company's home market in accordance with the requirements of
the Commission under Rule 12g3-2(b). The Company furnishes the Commission with
certain public reports and documents required by foreign law or otherwise under
Rule 12g3-2(b) under the Securities Exchange Act of 1934. Such reports and
documents may be inspected and copied at the public reference facilities
maintained by the Commission located at the date of the Deposit Agreement at
Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
SECTION 4.10 Reports. The Depositary shall make available during normal
business hour 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. The Company agrees to provide to the Depositary, at
the Company's expense, all documents that it provides to the Custodian. The
Depositary shall, at the expense of the Company and in accordance with Section
5.6, also mail by regular, ordinary mail delivery or by electronic transmission
(if agreed by the Company and the Depositary) and unless otherwise agreed in
writing by the Company and the Depositary, to Holders copies of such reports
when furnished by the Company pursuant to Section 5.6.
SECTION 4.11 List of Holders. Promptly upon written request by the Company,
the Depositary shall, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary. Such list shall be
available for inspection.
SECTION 4.12 Taxation; Withholding. The Depositary will, and will instruct
the Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file necessary tax reports with governmental authorities or agencies.
The Depositary, the Custodian or the Company and its agents may, but shall not
be obligated to, file such reports as are necessary to reduce or eliminate
applicable taxes on dividends and on other distributions in respect of Deposited
Securities under applicable tax treaties or laws for the Holders and Beneficial
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Owners. Holders and Beneficial Owners of American Depositary Shares may be
required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective 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 Company shall remit to the appropriate governmental authority or agency
any amounts required to be withheld by the Company and owing to such
governmental authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form satisfactory to the Depositary. The Depositary shall, to the extent
required by U.S. law, report to Holders: (i) any taxes withheld by it; (ii) any
taxes withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the Depositary
nor the Custodian shall be liable for the failure by any Holder or Beneficial
Owner to obtain the benefits of credits on the basis of non-U.S. tax paid
against such Holder's or Beneficial Owner's income tax liability.
In the event that the Depositary determines that any distribution in cash
or property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charge which the Depositary is obligated to
withhold, the Depositary shall withhold the amount required to be withheld and
may by public or private sale dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner as the Depositary deems necessary and practicable to pay such taxes or
charges and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Holders entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively.
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.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and
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delivery, registration, registration of transfers, combination and split-up of
Receipts, the surrender of Receipts and the delivery and withdrawal of Deposited
Securities in accordance with the provisions of this Deposit Agreement.
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 this 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 connection with the performance of its
duties hereunder.
SECTION 5.2 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 this 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 delayed in, doing or
performing any act or thing required by the terms of this Deposit Agreement, 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 restraint, 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 this 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 the 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 this
Deposit Agreement, made available to Holders of American Depositary Shares or
(v) for any special, consequential, indirect or punitive damages for any breach
of the terms of this Deposit Agreement or otherwise.
The Depositary, its controlling persons, its agents, the 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 this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this
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Deposit Agreement or any Receipts to any Holder(s) or Beneficial Owner(s) or
other persons, except in accordance with Section 5.8 hereof.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
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 or the effects 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 this Deposit
Agreement or for the failure or timeliness of any notice from the Company, or
for any action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares for
deposit, any Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its agents
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with any matter arising wholly after the removal or resignation of
the Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without
gross negligence or willful misconduct while it acted as Depositary.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder 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 (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided, save that, any amounts, fees, costs or expenses owed to
the Depositary hereunder 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 Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder 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.
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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. The Company shall give notice to the
Depositary of the appointment of a successor depositary not more than 90 days
after delivery by the Depositary of written notice of resignation or by the
Company of removal, each as provided in this section. In the event that a
successor depositary is not appointed or notice of the appointment of a
successor depositary is not provided by the Company in accordance with the
preceding sentence, the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof.
Every successor depositary shall be required by the Company to 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 (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor.
The predecessor depositary, upon payment of all sums due to 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 Sections 5.8 and 5.9), (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.
SECTION 5.5 The Custodian. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional entity
to act as Custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. After any such change, the Depositary shall give notice
thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on
the direction of such successor depositary.
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SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
form given or to be given to holders of Shares or other Deposited Securities
together with an English translation thereof.
The Company will also transmit to the Depositary such notices, reports and
communications which are made generally available to shareholders and/or
investors in the Company's home market in accordance with the requirements of
the Commission under Rule 12g3-2(b). The Depositary shall arrange, at the
request of the Company and at the Company's expense, for the mailing of copies
thereof to all Holders, or by any other means as agreed between the Company and
the Depositary (at the Company's expense) or make such notices, reports and
other communications available for inspection by all Holders. The Company will
timely provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Articles of Incorporation
along with the provisions of or governing the Shares and any other Deposited
Securities issued by the Company, in connection with the Shares, along with a
certified English translation thereof, and promptly upon any amendment thereto
or change therein, the Company shall deliver to the Depositary and the Custodian
a copy of such amendment thereto or change therein (along with a certified
English translation thereof). The Depositary may rely upon such copy for all
purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it proposes (i) an issuance, sale or distribution of
additional Shares, (ii) an offering of rights to subscribe for Shares or other
Deposited Securities, (iii) an issuance of securities convertible into or
exchangeable for Shares, (iv) an issuance of rights to subscribe for securities
convertible into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities or (vii) any reclassification,
merger, consolidation or transfer of assets within the meaning of Rule 145 under
the Securities Act, or any meeting of holders of Deposited Securities, or
solicitation of consents or proxies in relation thereto, , it will take all
steps necessary to ensure that (1) the application of the proposed transaction
to Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States), (2) making the transaction
available to Holders and Beneficial Owners does not violate the laws or
regulations of Japan or the Company's Articles of Incorporation and (3) all
requisite regulatory consents and approvals have been obtained in Japan.
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If the filing of a registration statement is required, the Depositary shall
not have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement
has been declared effective and that such distribution is in accordance with all
applicable laws or regulations. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the Securities
Act, the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the registration
requirements of the Securities Act or (iii) direct the Depositary to take
specific measures, in each case as contemplated in this Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act.
The Company agrees with the Depositary that the Company will not at any
time (i) deposit any Shares or other Deposited Securities, either upon original
issuance or upon a sale of Shares or other Deposited Securities previously
issued and reacquired by the Company or by any such Affiliate, or (ii) issue
additional Shares, rights to subscribe for such Shares, securities convertible
into or exchangeable for Shares or rights to subscribe for such securities,
unless such transaction and the securities issuable in such transaction are
exempt from registration under the Securities Act or have been registered under
the Securities Act (and such registration statement has been declared
effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the
Depositary, any Custodian and each of their respective directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any losses, liabilities, taxes, costs, claims, judgments, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable fees and expenses of counsel, and in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed in
respect thereof) (collectively referred to as "Losses") which the Depositary or
any agent thereof may incur or which may be made against it as a result of or in
connection with its appointment or the exercise of its powers and duties under
this Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American
Depositary Shares, the Shares, or other Deposited Securities, as the case may
be, (b) out of or in connection with any offering documents in respect thereof
or (c) out of or in connection with acts performed or omitted, including, but
not limited to, any delivery by the Depositary on behalf of the Company of
information regarding the Company in connection with this Deposit Agreement, the
Receipts, the American Depositary Shares, the Shares, or any Deposited
Securities, in any such case (i) by the Depositary, the Custodian or any of
their respective directors, officers, employees, agents and Affiliates, except
to the extent any such Losses arises out of the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and Affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any Losses which arise solely and exclusively out of a Pre-Release Transaction
in accordance with Section 2.10 and which would not otherwise have arisen had
the ADSs that were issued not been the subject of a Pre-Release Transaction
pursuant to Section 2.10.
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The Depositary agrees to indemnify the Company, its directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any Losses which may arise directly out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, employees, agents and
Affiliates due to their negligence or bad faith.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
Indemnified Person's rights to indemnification except to the extent the
Indemnifying Person is materially prejudiced by such failure) and shall consult
in good faith with the Indemnifying Person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable under the circumstances. No Indemnified Person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the Indemnifying Person, which consent shall
not be unreasonably withheld.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively as provided for in Exhibit A hereto. All fees and charges
so payable may, at any time and from time to time, be changed by agreement
between the Depositary and the Company, but, in the case of fees and charges
payable by Holders and Beneficial Owners, only in the manner contemplated in
Section 6.1. The Depositary shall provide, without charge, a copy of its latest
fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to
the payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 5.6.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are payable
by the Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company upon demand therefor); and
(ii) such payment shall be subject to all necessary Japanese exchange
control and other consents and approvals having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary approvals
that are required to be obtained by it in this connection.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the
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Company may agree to from time to time. Responsibility for payment of such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. Unless otherwise agreed, in the discretion of
the Depositary, the Depositary shall present its statement for such expenses and
fees or charges to the Company upon receipt or payment of any relevant invoice
by the Depositary, once every three months, semiannually or annually. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
All payments by the Company to the Depositary under this Clause 5.9 shall
be paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature,
imposed by Japan or by any department, agency or other political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar
liabilities with respect thereto.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Restricted Securities Owners. From time to time or upon
request by the Depositary, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon. The
Company agrees to advise in writing each of the persons or entities who, to the
knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder and, to the extent practicable,
shall require each of such persons to represent in writing that such person will
not deposit Restricted Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the Receipts outstanding at any time, the
provisions of this Deposit Agreement and the form of Receipt attached hereto and
to be issued under the terms hereof 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 not materially
prejudicial to the Holders 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. 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 American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American
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Depositary Shares or the 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 American Depositary Share or Shares, to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended and 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, rules or regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this 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 this 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 in Section 5.4, the
Depositary may terminate this 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 this Deposit Agreement, the Holder will, upon surrender of such
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 Section
2.6 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this 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 this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights or other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.6, 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 this Deposit Agreement and
any applicable taxes or governmental charges or
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assessments). At any time after the date of termination of this 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. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
American Depositary Shares, 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 this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary hereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the Depositary
and its Affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or Beneficial Owners may have interests
and (iii) nothing contained in this Agreement shall (a) preclude the Depositary
or any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of any Receipt by acceptance hereof or any beneficial
interest therein.
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SECTION 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex, facsimile transmission or electronic transmission,
confirmed by letter, addressed to Yamaha Corporation, 00-0 Xxxxxxxx-xxx,
Xxxxxxxxx, 000-0000 Xxxxx, Attention: General Manager, Accounting & Finance
Division, or to any other address which the Company may specify in writing to
the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex, facsimile transmission or by electronic transmission (if agreed by the
Company and the Depositary), at the Company's expense, unless otherwise agreed
in writing between the Company and the Depositary, confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, XXX Attention: ADR Department, telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000 or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex, facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary), at the Company's expense, unless otherwise agreed in writing
between the Company and the Depositary, addressed to such Holder at the address
of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex, facsimile
or electronic transmission shall be deemed to be effective at the time when a
duly addressed letter containing the same (or a confirmation thereof in the case
of a cable, telex, facsimile or electronic transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service. The
Depositary or the Company may, however, act upon any cable, telex, facsimile or
electronic transmission received by it from the other or from any Holder,
notwithstanding that such cable, telex, facsimile or electronic transmission
shall not subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, as its authorized agent to
receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any
reason the Agent shall cease to be available to act as such, the Company agrees
to designate a new agent in the City of
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New York on the terms and for the purposes of this Section 7.6 reasonably
satisfactory to the Depositary. The Company further hereby irrevocably consents
and agrees to the service of any and all legal process, summons, notices and
documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Agent (whether or not the appointment of such
Agent shall for any reason prove to be ineffective or such Agent shall fail to
accept or acknowledge such service), with a copy mailed to the Company by
registered or certified air mail, postage prepaid, to its address provided in
Section 7.5 hereof. The Company agrees that the failure of the Agent to give any
notice of such service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or proceeding based
thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending, and for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company and the Depositary agree that, notwithstanding the foregoing,
with regard to any claim or dispute or difference of whatever nature between the
parties hereto arising directly or indirectly from the relationship created by
this Deposit Agreement, each of the Depositary and the Company shall be entitled
to refer such dispute or difference for final settlement by arbitration
("Arbitration") in accordance with the applicable rules of the American
Arbitration Association (the "Rules") then in force, by a sole arbitrator
appointed in accordance with the Rules. The seat and place of any reference to
Arbitration shall be New York, New York State. The procedural law of any
Arbitration shall be New York law and the language to be used in the Arbitration
shall be English. The fees of the arbitrator and other costs incurred by the
parties in connection with such Arbitration shall be paid by the party that is
unsuccessful in such Arbitration.
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities
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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 Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
SECTION 7.9 Titles. All references in this Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
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IN WITNESS WHEREOF, YAMAHA CORPORATION and DEUTSCHE BANK TRUST COMPANY
AMERICAS have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof.
YAMAHA CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
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[NOTE FOR DOCUMENTATION: CORRESPONDING TO DEPOSITARY
AGREEMENT, THIS FORM MAY BE AMENDED ACCORDINGLY]
Number CUSIP: 984627 10 9
ISIN: US9846271099
American Depositary Shares
(Each American Depositary
Share representing one (1) Fully
Paid Ordinary Share)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
YAMAHA CORPORATION
(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 "ADS"), representing deposited common
shares, including evidence of rights to receive such ordinary shares (the
"Shares") of YAMAHA CORPORATION (Yamaha Kabushiki Kaisha), 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 Depositary Shares to shares of stock 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
[______________, 2003] (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
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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.
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 the 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 American Depositary Shares into DTC. Each Beneficial Owner
of American Depositary Shares 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 American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name of a
nominee of DTC. So long as the American Depositary Shares 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 charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof and
in Section 5.9 and Exhibit A of the Deposit Agreement) and (ii) all fees, taxes
and 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, Article (22) of this Receipt and the
provisions of or governing the Deposited Securities and other applicable laws,
the Holder of the American Depositary Shares evidenced hereby 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. ADS may be surrendered for the purpose of withdrawing Deposited
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Securities by delivery of a Receipt evidencing such ADS (if held in registered
form) or by book-entry delivery of such ADS to the Depositary.
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), 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 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.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares 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 American Depositary Shares 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 withheld) 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 cable, telex or facsimile
transmission
(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 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, of Japan and of any other applicable jurisdiction,
provided that the Depositary may close the register at any time when deemed
expedient by it in connection with its duties under the Deposit Agreement or
reasonably requested by the Company. Subject to the terms and conditions of the
Deposit Agreement, including payment of the
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applicable fees and charges of the Depositary, the Depositary shall execute and
deliver a new Receipt(s) (and if necessary, cause the Registrar to countersign
such Receipt(s)) and deliver 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.
(4) Pre-Conditions to Registration, Transfer, etc. As a condition precedent
to the execution and delivery, registration of transfer, split-up, combination
or surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary 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 or the Company consistent with the Deposit
Agreement and applicable law.
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 Share 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 of 1933, as amended,
unless a registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs
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represented hereby agrees to comply with requests from the Company pursuant to
the laws of Japan, the rules and requirements of 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 reasonable 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.
(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 Receipt or any Deposited Securities or ADSs, such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. 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. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver Receipts, 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, 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. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties are
false in any way, 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.
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(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 deem 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:
(i) to any person to whom ADSs are issued upon the deposit of Shares 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;
(iii) to any Holder of ADSs, 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;
(iv) to any Holder of ADSs, a fee not in the excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
(v) to any Holder of ADSs an annual fee not in excess of U.S. $ 1.00 per
100 ADSs to cover such expenses as are incurred for inspections by the
Depositary, the Custodian or their respective agents of the relevant share
register maintained by the relevant local registrar, where applicable. Such fee
shall be assessed against Holders of record as of the date or dates set by the
Depositary in accordance with Section and shall be 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.
(vi) to any Holder of ADSs an annual fee not in excess of U.S. $ 1.00 per
100 ADSs to cover such expenses as are incurred by the Depositary, the Custodian
or their respective agents for the safekeeping of securities with the relevant
central depository for securities in the local market, if applicable. Such fee
shall be assessed against Holders of record as of the date or dates set by the
Depositary in accordance with Section and shall be
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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.
(vii) to any Holder of ADSs an annual fee not in excess of U.S. $ 2.00 per
100 ADSs for the operation and maintenance costs associated with the
administration of such ADSs, provided, however, that in any year in which the
Depositary charges fees in accordance with (iii) above, such fees shall not be
chargeable by the Depositary.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons 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 cable, telex, facsimile and electronic transmission 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; and
(vii) any additional fees, charges, costs or expenses that may be incurred
by the Depositary from time to time.
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. The charges and expenses of the
Custodian are for the sole account of the Depositary.
(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
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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. The
Company is exempt from the periodic reporting requirements of the Exchange Act.
The Company will file with the Commission such notices, reports and
communications which are made generally available in the Company's home market
in accordance with the requirements of the Commission under Rule 12g3-2(b). The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and documents may be inspected and copied at
the public reference facilities maintained by the Commission located at the date
of the Deposit Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
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.
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.
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Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
The address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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EXHIBIT B
[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
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, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of Receipts then outstanding at the time of the next distribution. 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 free
distribution of Shares, the Company shall or 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 distribute to the Holders
as of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date by them respectively, additional ADSs, which represent in aggregate
the number of Shares received as such 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). 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.
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) if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has either (a)
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to
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Holders (and no such registration statement has been declared effective), or (b)
fails to timely deliver the documentation 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 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 receipt by the Depositary of a notice indicating that the Company
intends to distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares to be made available to Holders of ADSs, the
Depositary shall consult with the Company to 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, if so
requested by the Depositary, the Depositary shall have received the
documentation to be provided under 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 in proportion to the number of American Depositary Shares held as of the
ADS Record Date, to whom it has determined that it may not lawfully or
practicably make such rights available, and distribute proceeds of such sales
(net of applicable fees and charges of, and expenses incurred by, the Depositary
and taxes) upon the terms hereof and in the Deposit Agreement. 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). 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 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 feasible 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 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 covering such
offering is in effect or (ii) unless the Company furnishes to the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactorily to the Depositary, 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
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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 or 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.
Subject to the terms hereof and the Deposit Agreement, upon receipt of any
distribution other than cash, Shares or rights to purchase additional Shares,
the Depositary shall cause the securities or property received by it to be
distributed to the Holders entitled thereto, after deduction of taxes and fees
and charges of, and expenses incurred by, the Depositary, in proportion to the
number of American Depositary Shares held by Holders respectively, in any manner
the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and proceeds of any such sales (net
of applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes) shall be distributed by the Depositary to Holders entitled
thereto as in the case of a distribution received in cash. The Depositary shall
not make such distribution unless (i) the Company shall have timely requested
the Depositary to make such distribution to Holders, (ii) if so requested by the
Depositary, the Depositary shall have the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable.
(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") 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. 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
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distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(15) Voting of Shares. 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, the Depositary shall
fix the ADS Record Date in respect of such meeting or solicitation of 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 sufficiently prior to the
date of such vote or meeting) and provided no U.S. legal prohibitions exist,
mail by regular, ordinary mail delivery or otherwise distribute to Holders as of
the ADS Record Date: (i) such notice of meeting or solicitation of consent or
proxy; (ii) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the Company's
Articles of Incorporation and the provisions of or governing the Deposited
Securities, 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 American Depositary Shares; and (iii) a brief statement as to the
manner in which such instructions may be given. Voting instructions may be given
only in respect of an integral number of one hundred (100) ADSs, or such other
number of ADSs as the Depositary may determine from time to time are necessary
to correspond to an integral number of Shares ("ADS Unit(s)"). Upon the timely
receipt of written instructions of a Holder of American Depositary Shares on the
ADS Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of the Deposit Agreement, the Company's
Articles of Incorporation and the provisions of or governing the Deposited
Securities, to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by American Depositary
Shares evidenced by such Receipt in accordance with such voting instructions. To
the extent the aggregate number of ADSs voted for and against a proposal do not
constitute an integral number of ADS Units, the remainder of the aggregate
number of votes received in excess of the highest integral multiple of an ADS
Unit will be disregarded.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, except pursuant to and in accordance with
the voting instructions timely received from Holders. If the Depositary fails to
timely receive voting instructions from any Holder of ADSs, or if the Depositary
timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Shares or other Deposited
Securities represented by such Holder's ADRs on or before the date established
by the Depositary for such purpose, the Depositary shall deem such Holder to
have instructed the Depositary to vote such Shares or other Deposited
Securities, or to cause such Shares or other Deposited Securities to be voted,
in accordance with any recommendation of the Company with respect to a
particular resolution or other matter submitted to such vote, and accordingly
the Depositary shall either vote or cause to be voted such Shares or other
Deposited Securities, or give a discretionary proxy to vote the relevant Shares
or Deposited Securities in favor of such person as the Company may specify;
provided that (x) no such discretionary proxy shall be given with respect to any
matter as to which the Company informs the Depositary that (i) substantial
opposition exists or (ii) the rights or holders of Shares or other Deposited
Securities will be adversely affected and (y) the Depositary shall not have any
obligation to give such discretionary proxy to a person designated by the
Company if (i) the Company shall not have delivered to the Depositary the
representation and indemnity letter described in the next paragraph and (ii) the
person designated to receive the
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discretionary proxy shall not have delivered to the Depositary an undertaking
stating that such person shall not exercise the rights granted to such person
pursuant to the terms of such proxy in contravention of the provisions of (x)
above.
Prior to requesting the delivery of a discretionary proxy upon the terms
set forth herein, the Company shall deliver to the Depositary a certificate of a
senior officer of the Company (i) describing the person to whom any
discretionary proxy should be given, (ii) confirming that the Company wishes
such discretionary proxy to be given, (iii) certifying that the Company has not
requested and shall not request the discretionary proxy be given as to any
matter as to which substantial opposition exists or which may adversely affect
the rights of holders of Shares or other Deposited Securities and (iv) agreeing
to indemnify the Depositary and the Custodian and their respective officers,
directors and employees against, and hold each of them harmless from, any
liability or expense which may arise out of or in connection with any action of
the Depositary or the Custodian in granting such discretionary proxy.
If, at a time of a vote, for any reason the voting instructions deemed
given herein would not be valid and binding on the Holders, or the Depositary is
unable to obtain the representation and indemnity letter above, the Depositary
shall not vote the Shares or other Deposited Securities as to which specific
instructions have not been received.
However, if the Depositary is not permitted by applicable law or the
Company's Articles of Incorporation to vote the Shares or other Deposited
Securities represented by ADRs of the relevant Holder at the relevant
shareholders meeting, the Depositary will not exercise the voting rights
attributable to such Shares or other Deposited Securities at such shareholders
meeting.
Save for applicable provisions of Japanese law, and in accordance with the
terms 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.
There can be no assurance that Holders generally or any Holder 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.
Each owner, Holder (other than DTC or its nominee, Cede & Co.) or
Beneficial Owner owning more than five per cent (5%) of the total voting equity
securities of the Company, directly in the form of Shares or indirectly in the
form of ADRs, instructing the Depositary to exercise any voting rights on behalf
of such owner, Holder or Beneficial Owner shall be deemed to represent and
warrant that it has filed a Report on Large Shareholding with the competent
authority of Japan pursuant to the provisions of the Securities & Exchange Law
of Japan (Law No. 25 of 1948, as amended, the "SEL").
Each owner, Holder (other than DTC or its nominee, Cede & Co.) or
Beneficial Owner owning at least ten per cent (10%) of the total voting equity
securities of the Company, directly in the form of Shares or indirectly in the
form of ADRs, instructing the Depositary to exercise any voting rights on behalf
of such owner, Holder or Beneficial Owner shall be deemed to represent and
warrant that it has filed a Report on Inward Direct Investment with the
competent authority of Japan pursuant to the provisions of the Foreign Exchange
and Foreign Trade Law of Japan (Law No. 228 of 1949, as amended).
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Each owner, Holder (other than DTC or its nominee, Cede & Co.) or
Beneficial Owner owning more than one-third of the total voting equity
securities of the Company, directly in the form of Shares or indirectly in the
form of ADRs, instructing the Depositary to exercise any voting rights on behalf
of such owner, Holder or Beneficial Owner shall be deemed to represent and
warrant that it has complied with the provisions of the SEL concerning the
public tender offer and made a bid for the remaining voting equity securities of
the Company as set out therein.
(16) Changes Affecting Deposited Securities. Upon any split-up,
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it 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, 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) 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.
(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, Japan or any other country, or of any other governmental
authority or regulatory authority or stock exchange, 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
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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 consequential
or punitive damages for any breach of the terms of the Deposit Agreement. 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.
(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 in accordance with 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 or
the effect of any vote, provided that any such action or omission is in good
faith and in accordance with the terms of the Deposit Agreement. 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.
(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
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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.
(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 the charges of the Depositary 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. 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 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
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or supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(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 90
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 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 or governmental charges or assessments). At
any time after the expiration of one year 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. 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 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.
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(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
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
(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 shall not lend Shares or ADSs; provided,
however, that 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).
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(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.
Dated: Name: ________________________________
By:
Title:
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.
SIGNATURE GUARANTEED
----------------------------