EXHIBIT (a)(2)
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of December 11, 2003 (the
"Amendment"), to the Deposit Agreement dated as of September 27, 2001 (as so
amended hereby, the "Deposit Agreement"), among Nidec 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.
1
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 27, 2001
as further amended by this Amendment.
SECTION 2.02. Section 1( c ) of the Deposit Agreement is amended by
replacing "one" with "one-quarter of one".
SECTION 2.03. All references in the Deposit Agreement to par value are
deleted.
SECTION 2.04. Section 17(a) and (b) of the Deposit Agreement are
amended to read as follows:
(a) JPMorgan Chase Bank
4 New York Plaza, 13th Floor
New York, New York 10004
Attention: ADR Administration
Facsimile: (000) 000-0000
(b) Nidec Corporation
000 Xxxxxxxxxxxxx-xxx, Xxxxxx-xx
Xxxxx 000-0000, Xxxxx
Attention: Investor Relations
Facsimile: 00-00-000-0000
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
-----------------------------
SECTION 3.01. The face of the form of ADR is amended by replacing "one
share" with "one-quarter of one share".
SECTION 3.02. The first paragraph of the form of ADR is amended by
replacing "one share of Common Stock" with "one-quarter of one share of Common
Stock".
2
SECTION 3.03. All references in the form of ADR to par value are
deleted.
SECTION 3.04. 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
(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 January 2, 2004. (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
3
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.
4
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
NIDEC CORPORATION
By:_____________________
Name:
Title:
JPMORGAN CHASE BANK
By:_____________________
Name:
Title:
5
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT TO DEPOSIT AGREEMENT
------------------------------
[FORM OF FACE OF ADR]
------ No. of ADSs:
Number
Each ADS represents
One-Quarter of one share of Stock
CUSIP:
THE RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF STOCK MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE COMMERCIAL CODE OF
JAPAN AND TO NIDEC CORPORATION'S ARTICLES OF INCORPORATION, THE RELEASE OF THE
SHARES OF STOCK OF NIDEC CORPORATION UNDERLYING THE ADSs REPRESENTED BY THIS ADR
MAY BE LIMITED TO A UNIT OF 100 SUCH SHARES OF STOCK (OR SUCH OTHER NUMBER OF
SHARES OF STOCK AS THE ARTICLES OF INCORPORATION MAY FROM TIME TO TIME DESIGNATE
AS A "UNIT OF SHARES") OR INTEGRAL MULTIPLES THEREOF.
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
COMMON STOCK
of
NIDEC CORPORATION
(Incorporated under the
laws of Japan)
1
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-quarter of one share of Common Stock (including
the rights to receive Stock described in paragraph (1), "Stock" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Stock, the "Deposited
Securities"), of Nidec Corporation, a corporation organized under the laws of
Japan (the "Company"), deposited under the Deposit Agreement dated as of
September 27, 2001 (as amended from time to time, the "Deposit Agreement")
among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an
ADR becomes a party thereto. The Deposit Agreement and this ADR (which includes
the provisions set forth on the reverse hereof) shall be governed by and
construed in accordance with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Stock in form satisfactory to the Custodian;
(b) rights to receive Stock from the Company or any registrar, transfer agent,
clearing agent or other entity recording Stock ownership or transactions; or,
(c) other rights to receive Stock (until such Stock is actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Stock, (b) assigns all beneficial right, title and interest therein to
the Depositary, (c) holds such Stock for the account of the Depositary and (d)
will deliver such Stock to the Custodian as soon as practicable and promptly
upon demand therefor and (iii) all Pre-released ADRs evidence not more than 30%
of all ADSs (excluding those evidenced by Pre-released ADRs), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person depositing
Stock, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing Stock
under the Deposit Agreement represents and warrants that such Stock is validly
issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person making such deposit is duly authorized so to do and that
such Stock (A) is not "restricted securities" as such term is defined in Rule
144 under the Securities Act of 1933 unless at the time of deposit they may be
freely transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) have been registered under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Stock and issuance of ADRs. The Depositary will not knowingly accept
for deposit under the Deposit Agreement any Stock required to be registered
under the Securities Act of 1933 and not so registered; the Depositary may
refuse to accept for such deposit any Stock identified by the Company in order
to facilitate
2
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 been requested by the Holder. Upon surrender of an
ADR or ADRs by a Holder to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese Commercial
Code, the Depositary will effect the delivery to such Holder of only that
portion of Stock (and any other Deposited Securities relating to such Stock)
comprising a Unit or an integral multiple thereof (the "deliverable portion" of
such ADR or ADRs). As of the date of the Deposit Agreement, a Unit is comprised
of 100 shares of Stock. For the purpose of the foregoing sentence, the
deliverable portion shall be determined on the basis of the aggregate number of
shares of Stock represented by the entire amount of the ADSs evidenced by the
ADR or ADRs surrendered by the same Holder at the same time. The Depositary will
promptly advise such Holder as to the amount of Stock and Deposited Securities,
if any, represented by the non-deliverable portion of such ADR or ADRs and shall
deliver to such Holder a new ADR evidencing such non-deliverable portion. In
addition, the Depositary shall notify such Holder of the additional amount of
ADSs which such Holder would be required to surrender in order for the
Depositary to effect delivery of all the Stock and Deposited Securities
represented by the ADSs of such Holder. Notwithstanding any other provision of
the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, 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
3
Holder hereof or by duly authorized attorney upon surrender of this ADR at the
Transfer Office properly endorsed (in the case of ADRs in certificated form) or
upon delivery to the Depositary of proper instruments of transfer and duly
stamped as may be required by applicable law; provided that the Depositary may
close the ADR Register at any time or from time to time when deemed expedient by
it or requested by the Company. At the request of a Holder, the Depositary
shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR or a
Direct Registration ADR, as the case may be, for any authorized number of ADSs
requested, evidencing the same aggregate number of ADSs as those evidenced by
the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Stock or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Stock, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of
4
Stock. 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 Stock or
rights) on Deposited Securities is subject to any tax that the Depositary or the
Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(6) Disclosure of Interests. (a) Without prejudice to the requirements
of applicable law concerning disclosure of beneficial ownership of shares of
Stock, any Beneficial Owner (as defined below) of ADSs who becomes, or ceases to
be, directly or indirectly, the Beneficial Owner of more than 5% of all
outstanding shares of Stock (whether such interest is held in whole or only in
part through ADRs) shall, within five days (excluding Saturdays, Sundays and
legal holidays in Japan) following such event, send written notice to the
Depositary at its Transfer Office and to the Company at its principal office in
Japan currently at Nidec Corporation, 000 Xxxxxxxxx-xxx, Xxxx, Xxxxxx-xx, Xxxxx
601-8205 Japan, containing the following information:
(i) the name, address and nationality of such Beneficial Owner and all
other persons by whom or on whose behalf such shares of Stock have been
acquired or are held; the number of ADSs and total shares of Stock
(including ADSs) beneficially owned, directly or indirectly, by such
Beneficial Owner immediately before and immediately after the event
requiring notification; the names and addresses of any persons other
than the Depositary, the Custodian, or either of their nominees,
through whom such beneficially owned shares of Stock are held, or in
whose name such shares of Stock are registered in the Company's
shareholders' register, and the respective numbers of shares of Stock
beneficially held through each such person; the date or dates of
acquisition of the beneficial interest in such shares of Stock; and the
number of any shares of Stock in which such Beneficial Owner has the
right to acquire, directly or indirectly, beneficial ownership and
material information as to such right(s) of acquisition; and
(ii) the names, addresses and nationalities of any persons with whom
such Beneficial Owner is acting as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding, voting
or disposing of a beneficial interest in shares of Stock; and the
number of shares of Stock being acquired, held, voted or disposed of as
a result of such association (being the total number held by such
group).
Any Beneficial Owner of more than 5% of all outstanding shares
of Stock shall promptly notify the Depositary and the Company as provided above
of any material change in the information previously notified, including,
without limitation, a change of more than 1% of the
5
percentage of total shares of Stock 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 of Stock, including any shares of Stock which underlie any ADS issued
hereunder (including having the right to exercise or control the exercise of any
right conferred by the holding of such shares of Stock or the power to vote or
to direct voting or the power to dispose or to direct disposition), and includes
any Holder of an ADS.
(b) Without prejudice to the requirements of applicable law
and the provisions of the Company's Articles of Incorporation, any Beneficial
Owner of shares of Stock shall, if so requested in writing by the Company,
provide such information with respect to the beneficial ownership of shares of
Stock (including not only shares of Stock underlying ADSs, but also any other
shares of Stock in which such Beneficial Owner has an interest and including any
security convertible into, exchangeable for or exercisable for shares of Stock)
by such Beneficial Owner as is requested by the Company. Such Beneficial Owner
shall provide such information to the Company in writing within the time
specified by the Company. Copies of any such request and responses shall be
contemporaneously sent to the Depositary at its Transfer Office.
(c) If the Company notifies the Depositary in writing that a
particular Beneficial Owner has not complied with subsections (a) or (b) above,
the Depositary shall use reasonable efforts not to vote or cause to be voted any
shares of Stock held by it or any Custodian as to which such Beneficial Owner of
such shares of Stock shall have failed to comply with the provisions of
subsections (a) or (b) above but only to the extent that such Beneficial Owner
is the Beneficial Owner of an ADR or ADRs.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs are issued against deposits of Stock, including deposits in respect of
Stock Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Stock Distributions, Rights and Other Distributions prior to such deposit to
pay such charge. The Company will pay all other reasonable charges and expenses
of the Depositary and any agent of the Depositary (except the Custodian)
pursuant to agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Stock), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Stock, ADRs or Deposited Securities (which are
payable by such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Stock or Holders withdrawing Deposited Securities;
there are no such fees in respect
6
of the Stock as of the date of the Deposit Agreement) and (iv) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency). These charges may be
changed in the manner indicated in paragraph (16).
(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 mail copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof 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.
7
[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) Stock. (i) Additional ADRs evidencing whole ADSs representing any
Stock available to the Depositary resulting from a stock split of Deposited
Securities (a "Stock Distribution") and (ii) U.S. dollars available to it
resulting from the net proceeds of sales of Stock received in a Stock
Distribution, which Stock would give rise to fractional ADSs if additional ADRs
were issued therefor, as in the case of Cash. (c) Rights. (i) Warrants or other
instruments in the discretion of the Depositary representing rights to acquire
additional ADRs in respect of any rights to subscribe for additional Stock or
rights of any nature available to the Depositary as a result of a distribution
on Deposited Securities ("Rights"), to the extent that the Company timely
furnishes to the Depositary evidence satisfactory to the Depositary that the
Depositary may lawfully distribute the same (the Company has no obligation to so
furnish such evidence), or (ii) to the extent the Company does not so furnish
such evidence and sales of Rights are practicable, any U.S. dollars available to
the Depositary from the net proceeds of sales of Rights as in the case of Cash,
or (iii) to the extent the Company does not so furnish such evidence and such
sales cannot practicably be accomplished by reason of the nontransferability of
the Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse). (d) Other Distributions. (i) Securities or property
available to the Depositary resulting from any distribution on Deposited
Securities other than Cash, Stock Distributions and Rights ("Other
Distributions"), by any means that the Depositary may deem 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).
(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
8
any distribution on or in respect of Deposited Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters and only such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Stock or other Deposited Securities, the Depositary shall
mail to Holders a notice stating (a) such information as is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary therefor will be entitled to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under applicable law and the
provisions of the Articles of Incorporation and Share Handling Regulations of
the Company and 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.
Subject to the next paragraph, if no instructions are received by the
Depositary from any Holder with respect to any of the Deposited Securities
represented by the ADSs evidenced 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 give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided, that no such instruction
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) or the Depositary reasonably believes that (x) the
Company does not wish such proxy given, (y) substantial opposition exists or (z)
such matter materially and adversely affects the rights of holders of Stock.
Neither the Depositary nor its agents are responsible for the effect of any
vote.
Notwithstanding anything to the contrary contained herein, in the case
of each meeting, the Depositary shall not be obligated to give any such deemed
instruction unless and until the Depositary has been provided with an opinion of
counsel to the Company, which opinion shall initially be provided on the signing
of the Deposit Agreement, in form and substance satisfactory to the Depositary,
to the effect that (i) such deemed instruction does not subject the Depositary
to any reporting obligations in Japan, (ii) such deemed instruction will not
result in a violation of Japanese law, rule, regulation or permit, (iii) the
voting arrangement and proxy as contemplated herein will be given effect under
Japanese laws, rules and regulations (iv) the Depositary will not be deemed to
be authorized to exercise, or in fact exercising, any discretion when voting in
accordance with the terms of this paragraph (12) under Japanese law and (v) the
Depositary will not be subject to any liability under Japanese law, rule or
regulation for losses arising from the exercise of the voting arrangements set
forth in this paragraph (12). If after the date such opinion is delivered to the
Depositary the Company is advised by counsel that there has occurred a change in
Japanese law such that the foregoing opinion could no longer be rendered
favorably in
9
whole or in part, the Company shall promptly notify the Depositary of such
change and the Holders shall thereafter not be deemed to have given any such
instruction.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described in the paragraph above in time to
ensure that the Depositary will vote the Stock or Deposited Securities in
accordance with the provisions set forth in the preceding paragraph.
(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 split-up, consolidation, cancellation or other reclassification
of Deposited Securities, any Stock Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and to sell by
public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(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 Stock 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
10
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.
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; such resignation or removal
shall take effect upon the appointment of and acceptance by 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.
(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 Stock to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. The Depositary 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
11
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 of Stock 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.
12
