AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of October , 2003 (the "Amendment"), to the
Deposit Agreement dated as of September 2, 2003 (as so amended hereby, the
"Deposit Agreement"), among Omron Corporation, incorporated under the laws of
Japan (the "Company"), JPMorgan Chase Bank, as depositary (the "Depositary"),
and all holders from time to time of American depositary receipts ("ADRs")
issued thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR contained in the
Deposit Agreement, the Company and the Depositary desire to amend the terms of
the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit
Agreement to the term "Deposit Agreement" shall, as of the Effective Date (as
herein defined), refer to the Deposit Agreement, dated as of September 2, 2003
as further amended by this Amendment.
SECTION 2.02. Section 1(c) of the Deposit Agreement is amended by
replacing "ten (10) Shares" with "one (1) Share".
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. The face of the form of ADR is amended by replacing "ten
shares" with "one share".
SECTION 3.02. The first paragraph of the form of ADR is amended by
replacing "ten (10) shares" with "one (1) share".
SECTION 3.03. The form of ADR shall be in the form set forth as Exhibit
A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
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(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement
as amended hereby, and any other document furnished hereunder or
thereunder in Japan, neither of such agreements need to be filed or
recorded with any court or other authority in Japan, nor does any stamp
or similar tax or governmental charge need to be paid in Japan on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of October , 2003. (the "Effective
Date").
SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the
date hereof, which do not reflect the changes to the form of ADR effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 16 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
OMRON CORPORATION
By:_______________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:_______________________________________
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
-----
Number
Each ADS represents
one Share
CUSIP:
THE RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE COMMERCIAL CODE OF
JAPAN AND TO THE COMPANY'S ARTICLES OF INCORPORATION, THE RELEASE OF THE SHARES
UNDERLYING THE ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A UNIT OF 100 SUCH
SHARES (OR SUCH OTHER NUMBER OF SHARES AS THE ARTICLES OF INCORPORATION MAY FROM
TIME TO TIME DESIGNATE AS A UNIT OF SHARES@) OR INTEGRAL MULTIPLES THEREOF.
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
SHARES OF COMMON STOCK
of
OMRON CORPORATION
(Incorporated under the laws of Japan)
JPMORGAN CHASE BANK, a New York corporation, as depositary
hereunder (the "Depositary"), hereby certifies that is _____________________ the
registered owner (a "Holder") of American Depositary Shares ("ADSs"), each
(subject to paragraph (13)) representing one(1) share of common stock (including
the rights to receive Shares described in paragraph (1), "Shares" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Shares, the "Deposited
Securities"), of OMRON
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CORPORATION, a corporation organized under the laws of Japan (the "Company"),
deposited under the Deposit Agreement, dated as of September 2, 2003 (as amended
from time to time, the "Deposit Agreement"), among the Company, the Depositary
and all Holders from time to time of American Depositary Receipts issued
thereunder ("ADRs"), each of whom by accepting an ADR becomes a party thereto.
The Deposit Agreement and this ADR (which includes the provisions set forth on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933, as amended (the
"Securities Act of 1933") unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have
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been requested by the Holder. Upon surrender of an ADR or ADRs by a Holder to
the Depositary, as a result of, and to the extent required by, the operation of
applicable provisions of the Japanese Commercial Code and the Company's Articles
of Incorporation, the Depositary will effect the delivery to such Holder of only
that portion of Shares (and any other Deposited Securities relating to such
Shares) comprising a Unit or an integral multiple thereof (the "deliverable
portion" of such ADR or ADRs). As of the date of the Deposit Agreement, a Unit
is comprised of 100 Shares. For the purpose of the foregoing sentence, the
deliverable portion shall be determined on the basis of the aggregate number of
Shares represented by the entire amount of the ADSs evidenced by the ADR or ADRs
surrendered by the same Holder at the same time. The Depositary will promptly
advise such Holder as to the number of Shares and Deposited Securities, if any,
represented by the non-deliverable portion of such ADR or ADRs and shall deliver
to such Holder a new ADR evidencing such non-deliverable portion. In addition,
the Depositary shall notify such Holder of the additional amount of ADSs which
such Holder would be required to surrender in order for the Depositary to effect
delivery of all the Shares and Deposited Securities represented by the ADSs of
such Holder. Notwithstanding any other provision of the Deposit Agreement or
this ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer (in the case of a Direct Registration ADR), is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided, that, the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments of
transfer (in the case of Direct Registration ADRs) and duly stamped as may be
required by applicable law; provided, that, the Depositary may close the ADR
Register at any time or from time to time when deemed expedient by it or
requested by the Company. At the request of a Holder, the Depositary shall, for
the purpose of substituting a certificated ADR with a Direct Registration ADR,
or vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR, as the case may be,
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for any authorized number of ADSs requested, evidencing the same aggregate
number of ADSs as those evidenced by the certificated ADR or Direct Registration
ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law (including, without limitation, the
Foreign Exchange and Foreign Trade Law of Japan), regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on
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Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. (a) Without prejudice to the requirements
of applicable law concerning disclosure of beneficial ownership of Shares, any
Beneficial Owner (as defined below) of ADSs who becomes, or ceases to be,
directly or indirectly, the Beneficial Owner of more than 5% of all outstanding
Shares (whether such interest is held in whole or only in part through ADRs)
shall, within five days (excluding Saturdays, Sundays and legal holidays in
Japan) following such event, send written notice to the Depositary at its
Transfer Office and to the Company at its principal office in Japan at 0-0-00,
Xxxxxxxxx, Xxxxxx-xx, Xxxxx 000-0000 Xxxxx containing the following information:
(i) the name, address and nationality of such
Beneficial Owner and all other persons by whom or on whose behalf such
Shares have been acquired or are held; the number of ADSs and total
Shares (including ADSs) beneficially owned, directly or indirectly, by
such Beneficial Owner immediately before and immediately after the
event requiring notification; the names and addresses of any persons
other than the Depositary, the Custodian, or either of their nominees,
through whom such beneficially owned Shares are held, or in whose name
such Shares are registered in the Company's shareholders' register, and
the respective numbers of Shares beneficially held through each such
person; the date or dates of acquisition of the beneficial interest in
such Shares; and the number of any Shares in which such Beneficial
Owner has the right to acquire, directly or indirectly, beneficial
ownership and material information as to such right(s) of acquisition;
and
(ii) the names, addresses and nationalities of any
persons with whom such Beneficial Owner is acting as a partnership,
limited partnership, syndicate or other group for the purpose of
acquiring, holding, voting or disposing of a beneficial interest in
Shares; and the number of Shares being acquired, held, voted or
disposed of as a result of such association (being the total number
held by such group).
Any Beneficial Owner of more than 5% of all outstanding
Shares shall promptly notify the Depositary and the Company as provided above of
any material change in the information previously notified, including, without
limitation, a change of more than 1% of the percentage of total Shares to which
the beneficial ownership relates.
As used herein, the "Beneficial Owner" of shares of Stock
means a person who, directly or indirectly, through any contract, trust,
arrangement, understanding, relationship, or otherwise, has an interest in any
Shares, including any Shares which underlie any ADS issued hereunder (including
having the right to exercise or control the exercise of any right conferred by
the holding of such Shares or the power to vote or to direct voting or the power
to dispose or to direct disposition), and includes any Holder of an ADS.
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(b) Without prejudice to the requirements of applicable law
and the provisions of the Company's Articles of Incorporation, any Beneficial
Owner of Shares shall, if so requested in writing by the Company, provide such
information with respect to the beneficial ownership of Shares (including not
only Shares underlying ADSs, but also any other Shares in which such Beneficial
Owner has an interest and including any security convertible into, exchangeable
for or exercisable for Shares) by such Beneficial Owner as is requested by the
Company. Such Beneficial Owner shall provide such information to the Company in
writing within the time specified by the Company. Copies of any such request and
responses shall be contemporaneously sent to the Depositary at its Transfer
Office.
(c) If the Company notifies the Depositary in writing that a
particular Beneficial Owner has not complied with subsections (a) or (b) above,
the Depositary shall use reasonable efforts not to vote or cause to be voted any
Shares held by it or any Custodian as to which such Beneficial Owner of such
Shares shall have failed to comply with the provisions of subsections (a) or (b)
above but only to the extent that such Beneficial Owner is the Beneficial Owner
of an ADR or ADRs.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADSs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs are issued (including, without limitation, issuance pursuant to a stock
dividend or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is applicable (i) to the extent not
prohibited by the rules of any stock exchange or interdealer quotation system
upon which the ADSs are traded a fee of $.02 or less per ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement, (ii)
to the extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are traded, a fee of $1.50 per ADR or ADRs
for transfers made pursuant to paragraph (3) hereof and (iii) a fee for the
distribution of securities pursuant to paragraph (10) hereof, such fee being in
an amount equal to the fee for the execution and delivery of ADSs referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this paragraph (7) treating all such securities as
if they were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Holders entitled thereto.
The Company will pay all other charges and expenses of the Depositary and any
agent of the Depositary (except the Custodian) pursuant to agreements from time
to time between the Company and the Depositary, except (i) stock transfer or
other taxes and other governmental charges (which are payable by Holders or
persons depositing Shares), (ii) cable, telex and
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facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees for
the registration of transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), (iv) expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency) and (v) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. These charges may be changed
in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company furnishes the United States
Securities and Exchange Commission (the "Commission") with certain public
reports and documents required under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended. 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.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ........................
Authorized Officer
The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
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(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record
date set by the Depositary therefor will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the extent such
instructions are not so received by the Depositary from any Holder, the
Depositary shall take such action as is necessary, upon the written request of
the Company and subject to applicable law, the share handling regulations of the
Company and the terms and conditions of the Deposited Securities, to cause such
underlying Shares to be counted for the purposes of satisfying applicable quorum
requirements.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any dividend distribution, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
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(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or bad faith; (c) in the
case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, its agents and the Company may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will not
be responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. Neither the Company, the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary. A resignation by the
Depositary shall not be effective until the earlier of (i) 90 days from the date
of such notice of resignation and (ii) the date on which the Company shall have
appointed a successor depositary. The Depositary may appoint substitute or
additional Custodians and the term "Custodian" refers to each Custodian or all
Custodians as the context requires.
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(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or 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. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require any amendment of or supplement to the Deposit Agreement or the form of
ADR to ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. Upon any resignation of the Depositary which does not
become effective during the time period described in paragraph (15) above or on
any removal of the Depositary pursuant to the Deposit Agreement, the Depositary
may, and shall at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders at
least 30 days prior to the date fixed in such notice for such termination. After
the date so fixed for termination, the Depositary and its agents will perform no
further acts under the Deposit Agreement and this ADR, except to receive and
hold (or sell) distributions on Deposited Securities and deliver Deposited
Securities being withdrawn. As soon as practicable after the expiration of six
months from the date so fixed for termination, the Depositary shall sell the
Deposited Securities and shall thereafter (as long as it may lawfully do so)
hold in a segregated account the net proceeds of such sales, together with any
other cash then held by it under the Deposit Agreement, without liability for
interest, in trust for the pro rata benefit of the Holders of ADRs not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from all obligations in respect of the Deposit Agreement and this
ADR, except to account for such net proceeds and other cash. After the date so
fixed for termination, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary and its
agents.
(18) Change in Unit. The Company agrees that it shall give notice to
Holders of ADRs of any amendment to its Articles of Incorporation changing the
number of Shares previously designated as a Unit as soon as practicable but no
later than two weeks after the adoption of a shareholders' resolution giving
effect to such change in Unit.
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