EXHIBIT 2.1
[Conformed Copy]
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MITSUI & CO., LTD.
(MITSUI XXXXXX KABUSHIKI KAISHA)
AND
CITIBANK, N.A.,
AS DEPOSITARY
AND
HOLDERS OF
AMERICAN DEPOSITARY RECEIPTS
AND
EUROPEAN DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
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DATED AS OF OCTOBER 1, 1982
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TABLE OF CONTENTS
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PAGE
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Parties ................................................................. 1
Recitals ................................................................ 1
ARTICLE I
DEFINITIONS
American Depositary Receipt ............................................. 2
Authorized Newspaper .................................................... 2
Company ................................................................. 2
Corporate Trust Office in New York City ................................. 2
Custodian ............................................................... 3
Deposit Agreement ....................................................... 3
Depositary .............................................................. 3
Depositary Shares; American Depositary Shares; European Depositary
Shares ........................................................... 3
Deposited Securities .................................................... 4
Dollars ................................................................. 4
European Depositary Receipt ............................................. 4
Principal Office in London .............................................. 4
Receipt ................................................................. 4
Record Holder; Holder ................................................... 4
Registrar ............................................................... 5
Securities Act of 1933 .................................................. 5
Stock .................................................................. 5
Subdepositary ........................................................... 5
Unit .................................................................. 5
Yen .................................................................. 5
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
INTERCHANGEABILITY, TRANSFER AND SURRENDER OF RECEIPTS
PAGE
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SECTION 2.01. Form and Transferability of Receipts .................. 6
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts .. 7
SECTION 2.03. Transfer of American Depositary Receipts .............. 10
SECTION 2.04. Combinations and Split-ups of Receipts ................ 10
SECTION 2.05. Surrender of Receipts and Withdrawal of Stock ......... 11
SECTION 2.06. Interchangeability of American Depositary Receipts and
European Depositary Receipts .......................... 12
SECTION 2.07. Limitations on Execution and Delivery, Registration of
Transfer, Surrender and Exchange of Receipts .......... 13
SECTION 2.08. Lost Receipts, etc. ................................... 14
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts,
Coupons and Talons .................................... 15
SECTION 2.10. Additional Coupons and Talon .......................... 15
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information ..... 15
SECTION 3.02. Payment of Taxes or Other Governmental Charges ........ 16
SECTION 3.03. Warranties as to Stock ................................ 16
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions .................................... 17
SECTION 4.02. Distributions Other Than Cash ......................... 17
SECTION 4.03. Distributions in Stock ................................ 18
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SECTION 4.04. Rights ................................................ 19
SECTION 4.05. Conversion of Non-Dollar Currency ..................... 20
SECTION 4.06. Notices of Dividends; Fixing of Record Date ........... 22
SECTION 4.07. Voting Rights ......................................... 23
SECTION 4.08. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. ............ 24
SECTION 4.09. Presentation of Coupons ............................... 25
SECTION 4.10. Reports ............................................... 25
SECTION 4.11. Lists of Receipt Holders .............................. 25
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfers Books
by the Depositary; Registrar .......................... 26
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
any Subdepositary, the Custodian or the Company ....... 26
SECTION 5.03. Obligations of the Depositary, the Subdepositaries, the
Custodian and the Company ............................. 27
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary ............................... 28
SECTION 5.05. The Custodian ......................................... 29
SECTION 5.06. Reports to Receipt Holders; Financial Statements ...... 30
SECTION 5.07. Corporate Notices and Reports ......................... 31
SECTION 5.08. Issuance of Additional Stock, etc. .................... 32
SECTION 5.09. Indemnification ....................................... 32
SECTION 5.10. Charges and Expenses .................................. 33
SECTION 5.11. Withholding of Japanese Tax ........................... 33
SECTION 5.12. Change in Unit ........................................ 34
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ARTICLE VI
AMENDMENT AND TERMINATION
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SECTION 6.01. Amendment ............................................. 34
SECTION 6.02. Termination ........................................... 35
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Agreement May Be Executed in Counterparts; Filing of
Copies ................................................ 36
SECTION 7.02. Agreement for Exclusive Benefit of Parties ............ 37
SECTION 7.03. Effect of Invalidity of Provisions .................... 37
SECTION 7.04. Notices ............................................... 37
SECTION 7.05. Holders of Receipts are Parties ....................... 38
SECTION 7.06. Subdepositaries ....................................... 38
SECTION 7.07. Amendment and Restatement of Prior Agreements ......... 38
SECTION 7.08. Governing Law ......................................... 39
TESTIMONIUM ............................................................. 39
SIGNATURES .............................................................. 39
EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT 40
EXHIBIT B
FORM OF EUROPEAN DEPOSITARY RECEIPT 57
EXHIBIT C
LEGEND TO BE INCLUDED ON FACE OF AMERICAN DEPOSITARY
RECEIPT AND EUROPEAN DEPOSITARY RECEIPT 71
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of October 1, 1982, among Mitsui & Co., Ltd.
(Mitsui Xxxxxx Kabushiki Kaisha), a corporation incorporated and existing under
the laws of Japan (herein sometimes called the "Company"), CITIBANK, N.A., a
national banking association duly incorporated and existing under the laws of
the United States of America, and Depositary (herein sometimes called the
"Depositary"), and all holders from time to time of American Depositary Receipts
and European Depositary Receipts issued hereunder,
WITNESSETH :
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit
Agreement, for the deposit of shares in registered form of Common Stock, par
value 50 yen per share ( the "Stock"), of the Company from time to time with the
Depositary or with The Mitsui Bank, Limited, Tokyo, Japan, or with The Fuji
Bank, Limited, Tokyo, Japan, as agents of the Depositary for the purposes set
forth in this
Deposit Agreement, and for the issuance hereunder of American
Depositary Receipts, or European Depositary Receipts, as the case may be, in
respect of the Stock so deposited: and
WHEREAS, the American Depositary Receipts 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 European Depositary Receipts are to be substantially in the
form of Exhibit B annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this
Deposit Agreement;
Now, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
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ARTICLE I.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this
Deposit Agreement:
American Depositary Receipt:
The term "American Depositary Receipt" shall mean a receipt issued pursuant
to this
Deposit Agreement in substantially the form of Exhibit A hereto.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper printed in the
English language (in the case of newspapers published in
New York City or
London) or in the French or German language (in the case of newspapers published
in Luxembourg) customarily published at least once a day for at least five days
in each calendar week and of general circulation in the place in connection with
which the term is used. If it shall be impracticable in the opinion of the
Depositary to make any publication of any notice required hereby in an
Authorized Newspaper, such publication or other notice in lieu thereof which is
made with the approval of the Depositary shall constitute a sufficient
publication of such notice.
Company:
The term "Company" shall mean Mitsui & Co., Ltd. (Mitsui Xxxxxx Kabushiki
Kaisha), incorporated under the laws of Japan and having its registered office
at the date of this Agreement at 2-1, Otemachi 1-chome, Xxxxxxx-xx, Xxxxx
000-00, Xxxxx, and its successors.
Corporate Trust Office in
New York City:
The term "Corporate Trust Office in
New York City" shall mean the office of
the Depositary at which its corporate trust business shall, at any particular
time, be principally administered, which office is, at the date of this
Agreement, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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Custodian:
The term "Custodian" shall mean The Fuji Bank, Limited and/or The Mitsui
Bank, Limited, collectively or individually as the context may require,
corporations organized and existing under the laws of Japan and having their
main offices in Tokyo, Japan, agents of the Depositary for the purposes of this
Deposit Agreement, their respective successors as custodian hereunder and any
other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05 as a substitute custodian hereunder.
Deposit Agreement:
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the provisions
hereof.
Depositary:
The term "Depositary" shall mean Citibank, N.A., a national banking
association incorporated and existing under the laws of the United States of
America, when acting with respect to European Depositary Receipts, at the
Principal Office in London, and when acting with respect to American Depositary
Receipts, at the Corporate Trust Office in
New York City, and its successors as
depositary hereunder.
Depositary Shares: American Depositary Shares; European Depositary Shares:
The term "Depositary Shares" shall mean American Depositary Shares and
European Depositary Shares as defined herein. The terms "American Depositary
Shares" and "European Depositary Shares" shall mean the rights evidenced by the
American Depositary Receipts and European Depositary Receipts, respectively,
issued hereunder and the interests in the Deposited Securities represented
thereby. Each Depositary Share shall represent 20 shares of Stock plus any and
all other Deposited Securities received by the Depositary or the Custodian in
respect of such shares and at the time held under this Deposit Agreement.
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Deposited Securities:
The term "Deposited Securities" as of any time shall mean Stock at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, other than such
Stock, securities, property and cash held for the respective accounts of persons
other than the then holder of the Receipt representing such Stock.
Dollars:
The term "dollars" shall mean United States Dollars.
European Depositary Receipt:
The term "European Depositary Receipt" shall mean a receipt issued pursuant
to this Deposit Agreement in substantially the form of Exhibit B hereto.
Principal Office in London:
The term "Principal Office in London" shall mean the principal office of
the Depositary in London, England, which at the date of this Agreement is 000
Xxxxxx, Xxxxxx, X.X.0X 0XX, Xxxxxxx.
Receipt:
The term "Receipt" shall mean one of the American Depositary Receipts or
European Depositary Receipts issued hereunder.
Record Holder; Holder:
The term "record holder" as applied to an American Depositary Receipt shall
mean the holder in whose name such Receipt shall by recorded on the books of the
Depositary. The term "holder" as applied to an American Depositary Receipt shall
mean, if the American Depositary Receipt is not properly endorsed or accompanied
by a properly executed instrument of transfer, the record holder thereof, or, if
properly endorsed or accompanied by a properly executed instrument of transfer
and delivered to any specified person, such person, or, if properly endorsed in
blank or accompanied by a properly executed instrument of transfer in blank, the
bearer thereof; and
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as applied to a European Depositary Receipt or coupon or talon appertaining
thereto shall mean the then bearer thereof.
Registrar:
The term "Registrar" shall mean any bank or trust company having any office
in the Borough of Manhattan, The City of
New York, which shall be appointed to
register American Depositary Receipts as herein provided.
Securities Act of 1933:
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
Stock:
The term "Stock" shall mean shares in registered form of Common Stock, par
value 50 yen per share, of the Company, heretofore validly issued, fully paid
and non-assessable, and presently outstanding, or hereafter validly issued and
outstanding, fully paid and non-assessable.
Subdepositary:
The term "Subdepositary" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.06.
Unit:
The term "Unit" shall mean 1,000 shares of Stock (of a par value of 50 yen
per share) or such other number of shares of Stock as the Articles of
Incorporation of the Company may provide as a "Unit of Shares" for the purpose
of the Japanese Commercial Code, as such Articles of Incorporation may be
amended from time to time.
Yen:
The term "yen" shall mean Japanese yen.
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ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
INTERCHANGEABILITY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01. Form and Transferability of Receipts. Receipts, coupons and
talons shall be engraved or printed or lithographed on steel-engraved borders.
American Depositary Receipts shall be substantially in the form set forth in
Exhibit A annexed hereto, and European Depositary Receipts shall be in
substantially the form set forth in Exhibit B hereto, in each case with
appropriate insertions, modifications and omissions, as hereinafter provided,
and may be issued in denominations of any number of Depositary Shares. Such
Receipts shall be executed by the Depositary by the manual signature of a duly
authorized officer of the Depositary; provided that, in the case of American
Depositary Receipts, such signature may be a facsimile if a Registrar for the
American Depositary Receipts shall have been appointed and such American
Depositary Receipts are countersigned by manual signature of a duly authorized
officer of the Registrar and provided further that, in the case of European
Depositary Receipts, such signature may be a facsimile if such European
Depositary Receipts are countersigned by the manual signature of a duly
authorized officer of the Depositary. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless it shall have been executed by the Depositary by the manual signature of
a duly authorized officer or, as hereinabove provided, by the manual signature
of a duly authorized officer of the Registrar. The Depositary shall record on
its books each American Depositary Receipt so executed and delivered as
hereinafter provided. Receipts bearing the facsimile signature of a duly
authorized officer of the Depositary who was at any time the proper officer of
the Depositary shall bind the Depositary, not withstanding that such officer has
ceased to hold such office prior to the countersignature and delivery of such
Receipts or did not hold such office at the date of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulations thereunder or
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with the rules and regulations of any securities exchange upon which the
Receipts or the 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.
Title to an American Depositary Receipt (and to the American Depositary
Shares evidenced thereby), when properly endorsed or accompanied by a properly
executed instrument of transfer, shall be transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
an American Depositary Receipt shall be transferred on the books of the
Depositary as provided in Section 2.03, the Depositary and the Subdepositaries,
notwithstanding any notice to the contrary, may treat the record holder thereof
at such time 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.
Title to a European Depositary Receipt (and to the European Depositary
Shares evidenced thereby) and any talon or coupons appertaining thereto shall be
transferable by delivery, and the Depositary and the Subdepositaries,
notwithstanding any notice to the contrary, may treat the holder thereof from
time to time as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends and other distributions and for all
other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts.
Subject to the terms and conditions of this Deposit Agreement, any holder of
Stock may deposit such Stock under this Deposit Agreement by delivering to the
Custodian a certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by law, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and together with a
written order (which order may, if accompanied by evidence satisfactory to the
Depositary of due authorization, execution and delivery of such order, be
delivered to the Depositary) directing the Depositary to execute and deliver to,
or upon the written order of, the person or persons stated in such order, at the
office
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designated therein, an American Depositary Receipt or Receipts or a
European Depositary Receipt or Receipts with appropriate coupons and talon
attached thereto, or both, for the number of American Depositary Shares or
European Depositary Shares, respectively, representing such deposited Stock. No
Stock shall be accepted for deposit unless accompanied by evidence satisfactory
to the Depositary that it is owned by a nonresident of Japan.
If required by the Depositary, Stock presented for deposit at any time,
whether or not the register of shareholders of the Company is closed, shall also
be accompanied by (1) an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Depositary or its nominee of any dividend or right to subscribe for
additional Stock or to receive other property which any person in whose name the
Stock is or has been recorded may thereafter receive upon or in respect of such
deposited Stock, or in lieu thereof such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary, and (2) if the Stock is
recorded in the name of the person on whose behalf it is presented for deposit,
a proxy or proxies (or an agreement to give such proxy or proxies) entitling the
Depositary to vote such deposited Stock for any and all purposes until the Stock
is transferred and recorded on the register of shareholders of the Company in
the name of the Depositary or its nominee.
At the request and risk and expense of any holder of Stock, and for the
account of such holder, the Depositary or a Subdepositary may receive, at the
Corporate Trust Office in
New York, the Principal Office in London or at the
office of a Subdepositary, certificates for Stock to be deposited, together with
the other instruments herein specified, for the purpose of forwarding such Stock
certificates to the Custodian for deposit hereunder.
Subject to the terms and conditions of this Deposit Agreement, Stock may
also be deposited hereunder in connection with the delivery of Receipts to
represent distributions under Section 4.03 or upon exercise of the rights to
subscribe referred to in Section 4.04; provided, however, that in such event if
by operation of applicable provisions of the Japanese Commercial Code or any
other Japanese law no certificate for any number of shares of Stock issued upon
such distribution or upon such exercise in issuable, such number of shares of
Stock which would form a part of the Deposited Securities in respect of the
Receipts to be delivered pursuant to Section
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4.03 or 4.04 shall be deemed to be deposited hereunder without delivery of such
certificate to the Custodian if such shares are registered in the name of the
Depositary or its nominee on the books of the Company at the time of the issue
of such shares.
Upon each delivery to the Custodian of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents above
specified, the Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company for
transfer and recordation of the Stock being deposited in the name of the
Depositary or its nominee.
Deposited Securities shall be held by the Depositary, or by the Custodian
for the account and to the order of the Depositary at the main Tokyo office of
the Custodian, or at such other place or places as the Depositary shall
determine.
Upon receipt by the Custodian of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, the Custodian shall notify the
Depositary of such deposit and (unless the written order referred to in the
first paragraph of this Section was delivered to the Depositary or a
Subdepositary) of the name or names of the person or persons to whom or upon
whose written order an American Depositary Receipt or Receipts or a European
Depositary Receipt or Receipts, as the case may be, are deliverable in respect
thereof, the office of the Depositary or the Subdepositary at which such
Receipts are to be delivered and the number of American Depositary Shares or
European Depositary Shares, respectively, to be represented thereby. Such
notification shall be made in writing and mailed, first class air mail postage
prepaid, or, at the request, risk and expense of the person making the deposit,
by cable, or telex or facsimile transmission.
Upon receiving such notification from the Custodian, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver, as provided herein, to or upon the order of the person or persons named
in the notice (or written order referred to in the preceding paragraph)
delivered to the Depositary at the office designated in such written order, an
American Depositary Receipt or Receipts evidencing the aggregate number of
American Depositary Shares requested by such person and registered in such name
or names as requested by such person or
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persons, or shall execute, countersign and deliver to or upon the order of
the person or persons named in the notice delivered to the Depositary or such
Subdepositary, at the office designated in such written order, a European
Depositary Receipt or Receipts, or both, together evidencing the aggregate
number of European Depositary Shares requested by such person.
Delivery at offices other than the Corporate Trust Office in
New York City,
in the case of delivery of American Depositary Receipts, or other than the
Principal Office in London or an office of a Subdepositary, in the case of
European Depositary Receipts, shall be at the risk and expense of the person
requesting such delivery. However, in each case, such delivery will be made only
upon payment to the Depositary of the fee of the Depositary for the execution
and delivery of such Receipt or Receipts and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
deposited Stock.
SECTION 2.03. Transfer of American Depositary Receipts. The Depositary,
subject to the terms and conditions of this Deposit Agreement, shall make
transfers in its records of transfer in
New York City from time to time of
American Depositary Receipts, upon any surrender thereof at the Corporate Trust
Office in
New York City or the office of a Subdepositary by the holder in person
or by duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new American Depositary Receipt or Receipts, evidencing the same
aggregate number of American Depositary Shares, and deliver, or cause to be
delivered, the same to or upon the order of the person entitled thereto at the
office where such American Depositary Receipt was surrendered.
SECTION 2.04. Combinations and Split-ups of Receipts. 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 of Receipts, execute and deliver a Receipt or
Receipts (and in the case of a European Depositary Receipt or Receipts, with all
coupons not previously designated by the Depositary for surrender and talon
attached) for the number of Depositary Shares
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requested, evidencing the same aggregate number of Depositary Shares as the
Receipt or Receipts so surrendered.
American Depositary Receipts shall be surrendered for combination and
split-up the Corporate Trust Office in New York City and American Depositary
Receipts issued as a result of such transactions shall be delivered at such
office. European Depositary Receipts shall be surrendered for such purposes at
the Principal Office in London or at the office of a Subdepositary and European
Depositary Receipts issued as a result of such transactions shall be delivered
at such office.
SECTION 2.05. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of (a) an American Depositary Receipt or Receipts at the Corporate
Trust Office in New York City or (b) a European Depositary Receipt with all
coupons not previously designated by the Depositary for surrender and talon
attached at the Principal Office in London or at the office of a Subdepositary,
for the purpose of withdrawal of the Deposited Securities represented thereby,
and upon payment of the fee of the Depositary for the delivery of Deposited
Securities and the cancellation of Receipts, and subject to the terms and
conditions of this Deposit Agreement, the holder of such Receipt or Receipts
shall be entitled to delivery, to him or upon his order, of the Stock and any
other Deposited Securities at the time represented by the deliverable portion of
such Receipt or Receipts (as defined in Section 2.07(c)). Delivery of such Stock
and other Deposited Securities may be made by the delivery of certificates
which, if required by law, shall be properly endorsed or accompanied by properly
executed instruments of transfer. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
An American Depositary Receipt or Receipts surrendered for such purposes
may be required by the Depositary to be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank, and the
holder of either an American Depositary Receipt or a European Depositary Receipt
surrendered for the purpose of withdrawal shall execute and deliver to the
Depositary or Subdepositary a written order directing the Depositary to cause
the Stock and any other 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 at the main
office of the Custodian in
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Tokyo, subject to Sections 2.07, 3.01 and 3.02, and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary or Subdepositary
as above provided, the amount of Stock and any other Deposited Securities
represented by the deliverable portion of such Receipt or Receipts, except that
the Depositary may make delivery to such person or persons at the Corporate
Trust Office in New York City, at the Principal Office in London or at the
office of one of the Subdepositaries, as designated by the holder in such
written order, of any dividends or distributions with respect to the Stock and
any other Deposited Securities represented by the deliverable portion of such
Receipt or Receipts, or of any proceeds of sale of any such dividends,
distributions or rights, which may at the time be held by such Depositary. Such
direction shall be given by letter or, at the risk and expense of the holder, by
cable, telex or facsimile transmission.
At the request and risk and expense of any holder so surrendering a Receipt
or Receipts, and for the account of such holder, the Depositary shall direct the
Custodian to forward the certificate or certificates and other proper documents
of title for the amount of Stock and any other Deposited Securities represented
by the deliverable portion of such Receipt or Receipts for delivery at the
Corporate Trust Office in New York City, at the Principal Office in London or at
the office of a Subdepositary, as designated by the holder. Such direction shall
be given in writing and mailed, first class air mail postage prepaid, or, at the
request and risk and expense of such holder, by cable, telex or facsimile
transmission.
SECTION 2.06. Interchangeability of American Depositary receipts and
European Depositary Receipts. Subject to the terms and conditions of this
Deposit Agreement, the Depositary shall, upon payment of the fee of the
Depositary for the interchange of Receipts and upon surrender at the Corporate
Trust Office in New York City, at the Principal Office in London or at the
office of a Subdepositary of an American Depositary Receipt or Receipts for the
purpose of interchanging the same for a European Depositary Receipt or Receipts,
execute and countersign and deliver without unreasonable delay to the holder or
upon his order a European Depositary Receipt or Receipts, with all coupons not
previously designated for surrender and talon attached, evidencing the same
aggregate number of
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Depositary Shares as those evidenced by the American Depositary Receipt or
Receipts surrendered.
Subject to the terms and conditions of this deposit Agreement, the
Depositary shall, upon payment of the fee of the Depositary for the interchange
of Receipts and upon surrender at the Corporate Trust Office in New York City,
at the Principal Office in London or at the office of a Subdepositary of a
European Depositary Receipt or Receipts, with all coupons not previously
designated for surrender and talon attached, for the purpose of interchanging
the same for an American Depositary Receipt or Receipts, execute and deliver
without unreasonable delay to the holder or upon his order an American
Depositary Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the European Depositary Receipt or
Receipts surrendered.
The Depositary shall notify the Corporate Trust Office in New York City or
the Principal Office in London, as the case may be, of any such interchange by
letter, or, at the request and risk and expense of the person making such
interchange, by cable, telex or facsimile transmission.
SECTION 2.07. Limitations on Execution and Delivery, Registration of
Transfer, Surrender and Exchange of Receipts. (a) As a condition precedent to
the execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any Subdepositary or the
Custodian may require payment of a sum sufficient for reimbursement of any tax
or other governmental charge and any stock transfer registration fee with
respect thereto (including any such tax or charge and fee with respect to Stock
being deposited or withdrawn), and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement.
(b) The delivery of American Depositary Receipts or of European Depositary
Receipts against deposits of Stock generally or against deposits of particular
Stock may be suspended or the registration of transfer or interchange of
Receipts in particular instances may be refused, or the registration of transfer
or interchange or surrender of outstanding Receipts generally, or of American
Depositary Receipts or of European Depositary
13
Receipts, may be suspended during any period when the register of shareholders
of the Company is closed or, in the case of American Depositary Receipts, when
the records of transfer of the Depositary are closed or, if any such action is
deemed necessary or advisable by the Depositary or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement or for any other reason. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Stock which is required to be registered under the Securities Act of 1933
unless a registration statement under such Act is in effect as to such Stock.
(c) Upon surrender of a Receipt or Receipts by a holder to the Depositary,
then as a result of, and to the extent required by, the operation of applicable
provisions of the Japanese Commercial Code or any other Japanese law, 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 Receipt or
Receipts). 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 Depositary Shares evidenced by the
Receipt or Receipts 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
Receipt or Receipts and shall deliver to such holder a new Receipt evidencing
such non-deliverable portion. In addition, the Depositary shall notify such
holder of the additional amount of Depositary Shares 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 Depositary Shares of such
holder.
SECTION 2.08. Lost Receipts, etc. In case any Receipt (or coupon or
talon, if any) shall be mutilated or be destroyed or lost or stolen, the
Depositary, in its discretion, may execute and deliver a Receipt (or coupon or
talon, if any) of like form and tenor in exchange and substitution for such
mutilated Receipt or coupon or talon, if any) upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt (or
14
coupon or talon, if any) upon the holder thereof filing with the Depositary
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt (or coupon or talon, if any) and the authenticity thereof and of
the holder's ownership thereof and furnishing the Depositary with
indemnification satisfactory to it.
In case any coupon which by designation as in this Deposit Agreement
provided must be surrendered for the purpose of receiving cash, distributions
other than cash, Stock distributions or rights to subscribe for Stock shall
become mutilated or be destroyed, lost or stolen, the Depositary may in lieu of
issuing a substitute coupon, pay or distribute or authorize the exercise of such
rights (without surrender of such coupon, except in the case of a mutilated
coupon) if the applicant shall furnish the Depositary with indemnification
satisfactory to it and, in case of destruction, loss or theft, evidence
satisfactory to the Depositary of such destruction or loss or theft of such
coupon and the authenticity thereof and of the holder's ownership thereof.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts,
Coupons and Talons. All Receipts, coupons or talons surrendered to the
Depositary or a Subdepositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts, coupons or talons so cancelled.
SECTION 2.10. Additional Coupons and Talon. When all coupons attached
to a European Depositary Receipt have been exhausted, or notice published as
provided in Section 7.04 regarding the exchange of talons, and upon the
surrender of a talon, the Depositary shall deliver an additional supply of
coupons and a new talon.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Stock for deposit may be required from time to time to file
such proof of citizenship or residence, evidence of the number of shares of
Stock beneficially owned or any other matters necessary or appropriate to
evidence compliance with the Foreign Exchange and Foreign
15
Trade Control Law of Japan or other matters or other information, to execute
such certificates and to make such representations and warranties as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery or 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 such Deposited Securities until such proof or other information is filed or
such certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary or any Subdepositary with respect to any Receipt or with respect to
any Deposited Securities represented by any Receipt, such tax or other
governmental charge shall be payable by the holder of such Receipt to the
Depositary or such Subdepositary, as the case may be. Transfer or interchange of
such Receipt or any withdrawal of Deposited Securities represented thereby may
be refused until such payment is made, and any dividends or other distributions
may be withheld, or any part or all of the Deposited Securities represented by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting, in the case of holders of American Depositary
Receipts by reasonable means to notify such holder prior to such sale), and such
dividends or other distributions or the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder and record
holder, if any, of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranties as to Stock. Every person depositing Stock under
this Deposit Agreement shall be deemed thereby to represent and warrant that
such Stock is validly issued and outstanding and fully paid and non-assessable,
that such Stock is owned by a non-resident of Japan and that the person making
such deposit is duly authorized so to do. Such representations and warranties
shall survive the deposit of Stock and the issuance of Receipts in respect
thereof.
16
ARTICLE IV.
THE DEPOSITED SECURITIES; NOTICES.
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution by the Company on the Deposited
Securities, the Depositary shall, subject to the provisions of Section 4.05,
convert such dividend or distribution into dollars and shall (a) distribute the
amount thus received to the record holders of American Depositary Receipts on
the record date fixed pursuant to Section 4.06 hereof and (b) make available for
distribution the amount thus received to the holders of European Depositary
Receipts entitled thereto, in proportion to the number of American Depositary
Shares or European Depositary Shares held by them; provided, however, that in
the event that any of the deposited Stock is not entitled, by reason of its date
of issuance, or otherwise, to receive the full amount of such cash dividend or
distribution, the Depositary shall make an appropriate adjustment in the amount
distributed to the record holders of the American Depositary Receipts or made
available for distribution to the holders of European Depositary Receipts issued
in respect of such Stock, and, provided further, that in case either the Company
or the Depositary shall be required to and does withhold from any cash dividend
or other cash distribution in respect of any Deposited Securities an amount on
account of taxes, the amount distributed, or made available for distribution, on
the Receipts issued in respect of such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute, or make available for
distribution, only such amount, however, as can be distributed, or made
available for distribution, without attributing to any record holder of an
American Depositary Receipt or Receipts or any holder of a European Depositary
Receipt or Receipts a fraction of one cent, and any balance not so distributable
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 record holders of American Depositary Receipts and holders of
European Depositary Receipts then outstanding.
Payments in dollars in respect of any Receipt will be made, subject to
applicable laws and regulations, by check drawn on, or transfer to a dollar
account maintained by the payee with, a bank in New York City.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash upon the Deposited Securities,
the Depositary shall (subject to Section 4.03) cause
17
such amount of the securities or property received by it to the distributed to
the record holders of American Depositary Receipts on the record date fixed
pursuant to Section 4.06 and made available for distribution to the holders of
European Depositary Receipts entitled thereto, in proportion to the number of
Depositary Shares held by them in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the opinion
of the Depositary such distribution cannot be made among the record holders of
American Depositary Receipts or made available for distribution to the holders
of European Depositary Receipts entitled thereto, in proportion to the number of
American Depositary Shares or European Depositary Shares held by them,
respectively, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the record holders of American Depositary
Receipts and made available for distribution to the holders of European
Depositary Receipts entitled thereto as in the case of a distribution received
in cash.
SECTION 4.03. Distributions in Stock. If any distribution consists of a
dividend in, or free distribution of, Stock, the Depositary may (in lieu of the
distribution authorized by Section 4.02) in its discretion upon prior
consultation with and approval of the Company distribute to the record holders
of American Depositary Receipts on the record date fixed pursuant to Section
4.06 and make available for distribution to the holders of European Depositary
Receipts entitled thereto, in proportion to the number of American Depositary
Shares or European Depositary Shares held by them, respectively, additional
Receipts in the same forms for an aggregate number of American Depositary Shares
or European Depositary Shares, as the case may be, representing the amount of
Stock received as such dividend or free distribution. In lieu of delivering
Receipts for fractional American Depositary Shares or European Depositary Shares
in any such case, the Depositary may, in its discretion, sell the amount of
Stock, or
18
American Depositary Shares or European Depositary Shares, as the case
may be, represented by the aggregate of such fractions at public or private
sale, at such place or places and upon such terms as it may deem proper, or if
any portion of such amount consists of shares of Stock which are insufficient in
number to constitute a full Unit, sell such portion to the Company in accordance
with the applicable provisions of the Japanese Commercial Code or any other
Japanese law, and distribute or make available for distribution the net proceeds
of any such sale, all in the manner and subject to the conditions described in
Section 4.01.
SECTION 4.04. Rights. Whenever the Company shall offer or cause to be
offered to the holders of any Deposited Securities in whose names such
securities are recorded on the books of the Company any rights to subscribe for
or to purchase additional Stock or any rights of any other nature, such rights
shall be made available by the Depositary to the holders of Receipts in such
manner as the Depositary may determine, either by the issue to the record
holders of American Depositary Receipts entitled thereto and the holders of
European Depositary Receipts entitled thereto of warrants representing such
rights or by such other method as may be approved by the Depositary in its
discretion; provided, however, that if at the time of issue or offer of any
rights the Depositary determines that it is not lawful or not feasible to make
such rights available to the record holders of American Depositary Receipts ;or
the holders of European Depositary Receipts by the issue of warrants or
otherwise, or if and to the extent so instructed by the record holders of
American Depositary Receipts or the holders of European Depositary Receipts that
they do not desire to exercise such rights, the Depositary in its discretion
may, if applicable laws permit, sell such rights at public or private sale, at
such place or places and upon such terms as it may deem proper. The net proceeds
of any such sale shall, as provided in Section 4.05, be distributed or made
available for distribution by the Depositary to the record holders of American
Depositary Receipts entitled thereto or the holders of European Depositary
Receipts entitled thereto as in the case of a distribution received in cash.
The Company will, in connection with any offer of such rights, make such
rights generally transferable or consent to the transfer thereof by foreign
investors not resident in Japan.
19
So long as the aggregate number of shares of Stock held by or for United
States residents exceeds 1% of the total number of shares of Stock then
outstanding, if registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for the Company to offer such
rights to holders of Receipts and sell the securities represented by such
rights, the Company agrees with the Depositary that it will file promptly a
registration statement pursuant to such Act with respect to such rights and
securities and use its best efforts and take all steps available to it to cause
such registration statement to become effective at least 21 days before such
rights shall expire. In no event shall the Depositary make available to the
holders of Receipts any rights to subscribe for or to purchase any securities
unless and until such a registration statement is in effect, or unless the
offering and sale of such securities to the holders of such Receipts are exempt
in the opinion of counsel selected by the Company and satisfactory to the
Depositary from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights to be made available to holders of Receipts, the Company agrees with the
Depositary that the Company will use its best efforts, to the extent not unduly
burdensome in the judgment of the Company, to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
the rights to make such rights available to holders of Receipts; provided,
however, that the Company shall not thereby become obligated to qualify to
conduct business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of process or
taxation in any jurisdiction in which it is not now so subject.
SECTION 4.05. Conversion of Non-Dollar Currency. Whenever the Depositary
shall receive or hold non-dollar currency, received by way of dividends or other
distributions or the next proceeds from the sale of securities, property or
rights, and if at the time the non-dollar currency so received or held can in
the judgment of the Depositary be converted (at the official or other rate of
exchange) on a reasonable basis into dollars available to the Depositary, the
Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such
20
non-dollar currency into dollars, and such dollars shall be distributed to the
record holders of American Depositary Receipts entitled thereto and made
available for distribution to the holders of European Depositary Receipts
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among holders on account of
Japanese exchange restrictions or otherwise.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
non-dollar currency received by the Depositary is not convertible on a
reasonable basis available to it into dollars, or if any approval or license of
any government or agency thereof which is required for such conversion is denied
or in the opinion of the Depositary is not obtainable, or if any such approval
or license is not obtained within a reasonable period as determined by the
Depositary, the Depositary shall in its discretion, but subject to applicable
laws and regulations, either (i) distribute such non-dollar currency to the
record holders of American Depositary Receipts entitled thereto and make such
non-dollar currency available to the holders of European Depositary Receipts
entitled to receive the same, or (ii) hold such non-dollar currency for the
respective accounts of such persons, without liability for interest, and
distribute or make available to them appropriate warrants or other instruments
evidencing their rights to receive such non-dollar currency.
If any such conversion of non-dollar currency, in whole or in part, can be
effected as aforesaid for distribution to some but not all of the record holders
of American Depositary Receipts or holders of European Depositary Receipts
entitled thereto, the Depositary may in its discretion make such conversion and
distribution in dollars, to the extent such currency shall be convertible as
aforesaid, to the record holders of American Depositary Receipts or make such
funds available for distribution to the holders of European Depositary Receipts
entitled thereto and, with respect to the balance of such non-dollar currency,
shall in its discretion, but subject to any applicable laws and regulations,
either (i) distribute or make available
21
for distribution such balance to the persons who were record holders of American
Depositary Receipts or holders of European Depositary Receipts entitled thereto
with respect to whom such conversion could not then be effected or (ii) hold
such balance for the respective accounts of such persons, without liability for
interest, and distribute or make available for distribution to them appropriate
warrants or other instruments evidencing their rights to receive such balance.
SECTION 4.06. Notice of Dividends; Fixing of Record Date. Whenever any
cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be offered,
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Stock or other Deposited Securities,
or whenever the Depositary shall receive notice of the fixing of a record date
by the Company either for the determination of holders of Stock or other
Deposited Securities entitled to vote at any meeting of any such holders or for
the determination of holders of Stock or other Deposited Securities entitled to
receive a distribution in respect thereof, the Depositary shall (a) give notice
thereof to the holders of Receipts as soon as practicable thereafter, as
provided in Section 7.04, and (b) fix a record date for the determination of the
holders of American Depositary Receipts who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting and
include such information in the notice referred to in subsection (a) above.
Subject to the provisions of Section 4.01 and of the last two paragraphs of
Section 4.05, the record holders of American Depositary Receipts on such record
date and the holders of European Depositary Receipts (upon surrender of the
relevant coupon or otherwise complying with such formalities as are required by
the Depositary from time to time) shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution, such rights or the net proceeds of the sale thereof or to give
instructions for the exercise of such voting rights, in proportion to the number
of American Depositary Shares or European Depositary Shares held by them,
respectively. The Company shall give the Depositary at least 10 days' prior
written notice of the fixing of any record date by it.
22
SECTION 4.07. Voting Rights. Upon receipt of notice of the fixing of a
record date by the Company for any meeting of holders of Stock or other
Deposited Securities, the Depositary shall, as soon as practicable after fixing
a record date for determining the record holders of American Depositary Receipts
entitled to give instructions for the exercise of voting rights, as provided in
Section 4.06, and after receipt from the Company of notice of such meeting, (i)
mail to the record holders of American Depositary Receipts (a) a notice which
shall contain such information as is contained in such notice of such meeting
and (b) a statement that the record holders of American Depositary Receipts at
the close of business on a specified record date will be entitled, subject to
any applicable provisions of law and of the Articles of Incorporation of the
Company, to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock or other Deposited Securities represented by
their respective American Depositary Shares, and a brief statement as to the
manner in which such instructions may be given, including an express indication
that instructions may be given to the Depositary to give a discretionary proxy
to a person designated by the Company and (ii) publish, as provided in Section
7.04, a notice which shall contain (a) such of the information as is contained
in such notice of meeting which, in the judgment of the Depositary, is material
to the exercise of voting rights, or a brief summary of the matters to be acted
upon at such meeting together with a statement that an English translation of
said notice is available for inspection at certain designated places (which
shall be identified in such notice) during regular business hours, and (b) a
statement that the holders of European Depositary Receipts will be entitled,
subject to any applicable provisions of law and of the Articles of Incorporation
of the Company, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock or other Deposited Securities
represented by their respective European Depositary Shares, and a brief
statement as to the procedure by which such instructions may be given, including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of a record holder of an American Depositary Receipt or Receipts on such
record date or of a holder of a European Depositary Receipt or Receipts and
compliance by such holder with such procedure, which in the case of holders of
23
European Depositary Receipts may require of such holder the deposit of his
European Depositary Receipt or Receipts with, or the surrender of a coupon or
coupons appertaining thereto to, the Depositary at such place as it may
designate, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor in so far as practicable to vote or cause
to be voted the amount of Stock or other Deposited Securities represented by
such Receipt or Receipts in accordance with the instructions set forth in such
request.
As the aforementioned statement to the holders of Receipts shall state, if
no instructions are received by the Depositary on or before the date established
by the Depositary for such purpose, the Depositary will use its best efforts to
give a discretionary proxy to a person designated by the Company; provided,
however, such discretionary proxy shall not be given with respect to any
proposition (a) as to which the Depositary has knowledge of any contest to the
action to be taken at the meeting or (b) for the purpose of authorizing a
merger, consolidation or amalgamation (except an amalgamation between the
Company and one or more of its 100% owned Japanese subsidiaries) or on any other
matter which may affect substantially the rights or privileges of the holder of
such Stock or other Deposited Securities. The Company hereby agrees to take all
reasonable action which shall at any time be deemed necessary in order to enable
the Depositary to vote or cause to be voted the amount of Stock or other
Deposited Securities represented by every American Depository Receipt or
European Depositary Receipt, the record holder or the holder of which,
respectively, shall have properly instructed the Depositary as aforesaid, in
accordance with such instructions.
SECTION 4.08. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation or sale of assets affecting the Company or to which it is a party,
the Depositary may in its discretion, with the approval of the Company, and in
such manner as the Depositary may deem equitable, treat any securities which
shall be received by the Depositary in exchange for or in conversion of or in
respect of Deposited Securities as new Deposited Securities under this Deposit
Agreement, and Receipts then outstanding
24
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts as in the case
of a stock dividend, or may call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.09. Presentation of Coupons. Upon any distribution under
Section 4.01, 4.02 or 4.03 or upon the offer of any rights under Section 4.04,
the Depositary shall not be obliged to make any such distribution or to offer
any such rights to a holder of a European Depositary Receipt except upon
surrender of such coupon as it designates at the Principal Office in London or
at the office of a Subdepositary.
SECTION 4.10. Reports. The Depositary shall make available for inspection
by holders of Receipts at the Corporate Trust Office in New York City and at the
Principal Office in London and at the offices of the Subdepositaries and shall
furnish to the United States Securities and Exchange Commission, Washington,
D.C. (herein called the "Commission") to the extent required by applicable rules
and regulations, any reports and communications received from the Company which
are both (a) received by the Depositary or its nominee, as the holder of the
Deposited Securities, and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to record
holders of American Depositary Receipts copies of reports which are furnished by
the Company pursuant to Section 5.06.
SECTION 4.11. Lists of Receipt Holders. Promptly upon 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 name American Depositary Receipts are registered on the books of the
Depositary.
25
ARTICLE V.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Until termination of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate Trust
Office in New York City and at the Principal Office in London, facilities for
the execution and delivery, registration of transfer, interchange and surrender
of Receipts all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep records at the Corporate Trust Office in New York
City, or at such other location in The City of New York as it shall determine,
for the transfer of American Depositary Receipts which at all reasonable times
shall be open for inspection by the record holders of American Depositary
Receipts and by the Company, provided that inspection by a holder shall not be
for the purpose of communicating with holders of American Depositary Receipts in
the interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the American Depositary Receipts.
The Depositary may close such records, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the American Depositary Receipts or the Depositary Shares evidenced
thereby shall be listed on the New York Stock Exchange, the Depositary shall act
as Registrar or, with the approval of the Company, appoint a Registrar for
registry of such Receipts in accordance with any requirements of such Exchange.
Such Registrar may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. If the Receipts
or the Depositary Shares are listed on other stock exchanges, the Depositary
will, at the request of the Company, arrange for such facilities for the
delivery, interchange and surrender of Receipts as may be required by law or
applicable stock exchange regulation.
SECTION 5.02. Prevention or Delay in Performance by the Depositary, any
Subdepositary, the Custodian or the Company. Neither the Depositary, any
Subdepositary, the Custodian nor the Company shall incur any liability to any
holder of any holder of any Receipts, if 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 action of any governmental authority, or in
26
the case of the Depositary, a Subdepositary or the Custodian, by reason of any
provision, present or future, of the Articles of Incorporation or the Share
Handling Regulations of the Company, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary, any Subdepositary, the
Custodian or the Company shall be prevented or forbidden from or subjected to
any civil or criminal penalty on account of doing or performing any act which by
the terms of this Deposit Agreement it is provided shall be done or performed;
nor shall the Depositary, any Subdepositary, the Custodian or the Company incur
any liability to any holder of a Receipt by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act which by the terms of
this Deposit Agreement it is so provided shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any discretion provided
for, explicitly or otherwise, in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Subdepositaries, the
Custodian and the Company. Neither the Depositary, any Subdepositary, the
Custodian nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than that
each of them agrees to use its best judgment and good faith in the performance
of such obligations and duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary, any Subdepositary nor the Company 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 expense and liability be furnished as often as
may be required, and the Custodian shall not be under any obligation whatsoever
with respect to such proceedings, the responsibility of the Custodian being
solely to the Depositary.
Neither the Depositary, any Subdepositary, the Custodian nor the Company
shall be liable for any action or non-action by it in reliance upon the advice
of or information from legal counsel, accountants, any person presenting Stock
for deposit, any holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information or for any translation
of any notice, report or other document made by a translator believed by it to
be competent. The Depositary, any
27
Subdepositary, the Custodian or the Company may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties.
Neither the Depositary nor the Custodian shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner or effect of any such vote made, either with or without
request, or for not exercising any right to vote, as long as any such action or
non-action is in good faith.
The Depositary, any Subdepositary or the Custodian may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
The Depositary in its discretion may issue to securities dealers, brokers
and banks, against undertakings to deposit Stock accompanied by collateral
satisfactory to the Depositary having at all times a market value at least equal
to the market price for the Stock, Receipts for which no Stock has been
deposited hereunder. Any provision in this Deposit Agreement or the Receipts to
the contrary notwithstanding, the Depositary shall be absolutely liable for any
loss, damage, liability or expense suffered by holders of Receipts, and shall
indemnify and hold harmless the Company and the Custodian for any loss, damage,
liability or expense, resulting from the issuance of additional Receipts
pursuant to this Section 5.03.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to the Company
and the Custodian, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal delivered to the Depositary, such removal becoming effective
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within the 30 day period referred to in Section
6.02, appoint a successor depositary, which shall be a bank or trust company
having its principal office in the Borough of Manhattan, The City of New York
and an office or agency in London. In the event of a failure of
28
the Company to appoint a successor depositary, the Depositary may appoint its
own successor. 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; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Company shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
American Depositary Receipts or the records of transfer thereof maintained by
the Depositary, whichever the successor depositary may elect. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of American Depositary Receipts, each Subdepositary and the Custodian and
publish notice of its appointment as provided in Section 7.04.
Any corporation into or with which the Depositary may be converted, merged
or consolidated shall be the successor of such Depositary without the execution
or filing of any document or any further act.
SECTION 5.05. The Custodian. The Depositary has appointed The Mitsui
Bank, Limited and/or The Fuji Bank, Limited, as Custodians and agents of the
Depositary for the purposes of this Deposit Agreement. A Custodian in acting
hereunder shall be subject at all times and in all respects to the directions of
the Depositary and shall be responsible solely to it. A Custodian may resign and
be discharged from its duties hereunder by notice of such resignation delivered
to the Depositary at least 30 days prior to the date on which such resignation
is to become effective. Unless there remains a Custodian after such resignation,
the Depositary shall, promptly after receiving such notice, and after
consultation with the Company, appoint a substitute custodian, which shall
thereafter be the Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the holders of Receipts to do so,
it may upon prior consultation with the Company appoint a substitute custodian,
which, together with any remaining custodian hereunder, shall thereafter be the
Custodian hereunder and upon demand of the Depositary
29
any previous custodian shall deliver the Deposited Securities held by it to such
substitute custodian. Each such substitute custodian shall deliver to the
Depositary forthwith upon its appointment an acceptance of such appointment
satisfactory in form and substance to the Depositary. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all record
holders of American Depositary Receipts and each Subdepositary and shall publish
notice thereof, all as provided in Section 7.04, without any cost to the
Company.
Upon the appointment of any successor depositary hereunder, the Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of the Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of the Custodian, execute and deliver to the Custodian all such
instruments as may be proper to give to the Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.06. Reports to Receipt Holders; Financial Statements. The
Company will, as promptly as practicable after March 31 and September 30 of each
year, furnish to the Depositary, in form for presentation to holders of
Depositary Receipts, upon their request, a report which shall contain (a) in the
case of each twelve-month period ended March 31, a consolidated balance sheet of
the Company and its consolidated subsidiaries as at the end of such period and
consolidated statements of income and retained earnings of the Company and its
consolidated subsidiaries for the twelve months then ended, (b) in the case of
each six-month period ending September 30, consolidated statements of income and
retained earnings of the Company and its consolidated subsidiaries for the six
months then ended, and (c) and English translation of substantially the same
textual material contained or to be contained in the report, if any, for such
period made or to be made generally available by the Company to the holders of
its Stock, except that such textual material may be appropriately revised in
order to reflect any differences between the financial statements contained in
such report and the financial statements referred to in (a) and (b) above of
this Section. At the Company's expense, the Depositary will publish notice as
provided in Section 7.04 that the
30
foregoing reports and financial statements are available upon request at the
Principal Office in London and at the offices of the Subdepositaries (which
shall be identified in such notice) and will arrange for the mailing of such
reports and statements to record holders of American Depositary Receipts.
The financial statements referred to in the preceding paragraph shall (a)
be in the English language, (b) be expressed both in yen and in dollars
translated from yen at a rate of exchange stated therein, (c) in the case of
financial statements as at or for a period ended March 31, be audited and
reported upon in accordance with auditing standards and accounting principles
generally accepted in the United States, except to the extent variations from
such accounting principles are permitted in periodic reports filed by the
Company with the Commission, by a firm of independent public accountants of
recognized standing selected by the Company, and (d) in the case of financial
statements as at and for a period ended September 30, shall be prepared by the
Company on a basis consistent with the financial statements as at and for
periods ending March 31.
SECTION 5.07. Corporate Notices and Reports. On or before the first date
of the giving by the Company of notice, by publication or otherwise, of any
meeting of holders of Stock or other Deposited Securities, or of any adjourned
meeting of such holders, or of the taking of any action in respect of any cash
or other distributions or the offerings of any rights, the Company agrees to
transmit to the Custodian a copy of the notice thereof in the form given or to
be given to holders of Stock or other Deposited Securities.
The Depositary will, at the Company's expense, arrange for the prompt
transmittal by the Custodian to the Depositary of English translations of such
notices and any other reports and communications which are made generally
available by the Company to holders of its Stock, English translations of which
may, unless furnished to the Depositary at the time such notices, reports or
communications are received by the Depositary, be made at the Company's expense,
and the Depositary will arrange for the mailing of copies thereof to all record
holders of American Depositary Receipts.
The Depositary shall in its sole discretion make such notices, reports and
communications available to holders of European Depositary Receipts
31
in such manner as the Depositary may determine. Notwithstanding the foregoing
provisions of this paragraph, the Depositary shall not be obligated to make
available to the holders of Receipts any notices or semi-annual or annual
reports or financial statements other than in the manner and as are required to
be made available by the provisions of Section 4.06, 4.07 and 5.06.
SECTION 5.08. Issuance of Additional Stock, etc. The Company agrees that
in the event of any issuance by the Company to the holders of Deposited
Securities of (1) additional Stock, (2) rights to subscribe for Stock, (3)
securities convertible into Stock, or (4) rights to subscribe for such
securities, the Company will give the Depositary reasonable prior notice thereof
and the Depositary may consult with its counsel as to whether or not the
circumstances of such issue are such as to make it necessary or advisable for
the Depositary to suspend delivery of Receipts generally or with respect to
particular Stock for any specified period pursuant to the provisions of Section
2.07. The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Stock, or arrange
for the deposit thereof by another, either in connection with the original
issuance or in connection with a sale of Stock previously issued and reacquired
by the Company or by any company under its control, if, under the circumstances
of such deposit, such Stock is required to be registered under the provisions of
the Securities Act of 1933 and no registration statement is in effect as to such
Stock under such Act.
SECTION 5.09. Indemnification. The Company agrees to indemnify the
Depositary, the Subdepositaries, the Custodian and any Registrar against, and
hold each of them harmless from, any liability which may arise out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (a) by the Depositary, such Registrar or any of
their agents (including the Custodian or any Subdepositary), except for any
liability arising out of negligence or bad faith, or (b) by the Company or any
of its agents.
The Depositary agrees to indemnify the Company against, and hold it harmless
from, any liability that may arise out of acts performed or omitted
32
by the Depositary, such Registrar or their agents (including the Custodian and
the Subdepositaries) due to negligence or bad faith.
SECTION 5.10. Charges and Expenses. The Company agrees to pay all charges
and expenses of the Depositary and those of any Registrar under this Deposit
Agreement in accordance with agreements to be entered into from time to time
with the Depositary and the Registrar, if any. The Company will not be required
to pay (1) the fees of the Depositary for the execution and delivery of Receipts
upon the deposit of Stock pursuant to Section 2.02 (other than the fourth
paragraph thereof), the interchange of Receipts pursuant to Section 2.06 and the
surrender of Receipts pursuant to Section 2.07, (2) taxes and other governmental
charges payable with respect to any Deposited Securities, (3) such registration
fees as may from time to time be in effect for the registration of stock
transfers generally on the register of shareholders of the Company and
accordingly applicable to transfers of Stock to the name of the Depositary or
its nominee on the making of deposits hereunder, and (4) such cable or telex or
facsimile transmission and delivery expenses as are expressly provided in this
Deposit Agreement to be at the expense of persons depositing Stock or holders of
Receipts. Any other charges and expenses of the Depositary and any Subdepositary
hereunder (including the fees and expenses of counsel) will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. Such charges payable by the
Company may at any time and from time to time be changed by agreement between
the Company and the Depositary. The Depositary shall present its statement for
such charges and expenses to the Company once every three months.
The Company also agrees to pay the reasonable expenses and charges of the
Subdepositaries and the Custodian, except certain fees in connection with
deposits and withdrawals of Stock by others than the Company, which fees will be
paid by the Depositary.
Parties to whom Receipts are issued and parties surrendering Receipts shall
pay the fees therefor set forth in Exhibits A and B to this Deposit Agreement.
SECTION 5.11. Withholding of Japanese Tax. In the event that the Company
shall at any time be required by Japanese laws and regulations
33
to withhold any tax on any dividend or distribution made by it in respect of any
Deposited Securities, it shall advise the Depositary through the Custodian of
the applicable withholding rate or rates and the total amount of yen so withheld
for each country and shall remit to the appropriate governmental agency all sums
withheld and will make all necessary reports and filings. The Depositary shall
forward to the Custodian for delivery to the Company such information from the
Depositary's records as the Company may request in connection with any such
withholding by the Company within such period as will enable the Company to file
the necessary reports with the appropriate governmental agencies to obtain
benefits under applicable tax treaties.
SECTION 5.12. Change in Unit. The Company agrees that it shall give
notice to record holders of American Depositary Receipts and to holders of
European Depositary Receipts of any amendment to its Articles of Incorporation
changing the number of shares of Stock previously designated as a Unit at least
three months prior to the effectiveness of such amendment. Notwithstanding the
foregoing, however, if the number of shares of Stock proposed to be designated
as a Unit pursuant to an amendment to the Company's Articles of Incorporation is
a number evenly divisible into the number of shares of Stock then designated as
a Unit, the Company shall give notice to record holders of American Depositary
Receipts and to holders of European Depositary Receipts of such amendment at
least two weeks prior to the effectiveness of such amendment.
ARTICLE VI.
AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or have the effect
of increasing any fees or charges payable by the holders of Receipts (other than
taxes and other governmental charges, registration fees and cable, telex or
facsimile transmission and delivery expenses and any other fees and charges
34
provided for herein), or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the record holders of outstanding American
Depositary Receipts and published as provided in Section 7.04. Every holder of
an outstanding Receipt at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the holder of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. The Depositary shall, if the Company at any
time so requests, terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all American Depositary Receipts then
outstanding and publishing notice, all as provided in Section 7.04 and in each
case at least 30 days prior to the date fixed in such notice for such
termination.
The Depositary may likewise terminate this Deposit Agreement in accordance
with the notice requirements of the preceding paragraph of this Section 6.02 if
at any time 30 days shall have expired after the Depositary shall have delivered
to the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04.
If any Receipts shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the transfer of Receipts, shall suspend
the distribution of dividends to the holders thereof, and shall not give any
further notices (other than notice of such termination) or perform any further
acts under this Deposit Agreement, except as provided below and except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement and shall continue to deliver Deposited Securities, 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. Upon termination of this Deposit
Agreement, the Depositary shall deliver Stock
35
in respect of deliverable portions of such Receipts so surrendered and deliver
Receipts in respect of non-deliverable portions of Receipts so surrendered
pursuant to Section 2.07 (c) hereof and, except as provided below, shall
continue to effect transfers of Receipts representing non-deliverable portions
in accordance with Section 2.03 hereof. At any time after the expiration of six
months from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder at public or private sale, at such place or
places and upon such terms as it deems proper or, if any portion of such
Deposited Securities consists of shares of Stock which are insufficient in
number to constitute a full Unit, sell such portion to the Company in accordance
with the applicable provisions of the Japanese Commercial Code or any other
Japanese law or regulation, and may thereafter hold the net proceeds of any such
sale, together with any other cash then held by it hereunder, without liability
for interest, for the pro rata benefit of the holders of Receipts which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement, except to account
for such net proceeds and other cash. 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, its agents
(including the Custodian and the Subdepositaries) and the Registrar under
Sections 5.09 and 5.10 hereof.
ARTICLE VII.
MISCELLANEOUS.
SECTION 7.01. Agreement May be Executed in Counterparts; Filing of Copies.
This Deposit Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all such counterparts shall constitute one
and the same instrument. Copies of this Deposit Agreement shall be filed with
the Depositary, each Subdepositary and the Custodian and shall be open to
inspection at the Corporate Trust Office in New York City and the Principal
Office in London, at the offices of the Subdepositaries, and the main office of
the Custodian in Tokyo by any record holder or holder of a Receipt during
business hours.
36
SECTION 7.02. Agreement for Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Effect of Invalidity of Provisions. 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 wise be affected, prejudiced or disturbed thereby.
SECTION 7.04. 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,
first class air mail postage prepaid, or by cable, telex or facsimile
transmission confirmed by letter, addressed to the Company at 2-1, Otemachi
1-chome, Xxxxxxx-xx, Xxxxx 000-00, Xxxxx, Attention: General Manager, Finance
Department, or any other place to which the Company may have transferred its
principal executive office.
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, first class air mail
postage prepaid, or by cable, telex or facsimile transmission confirmed by
letter, addressed to Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ADR Unit or any other place to which the Depositary may have
transferred its Corporate Trust Office in New York City.
Any and all notices to be given to any record holder of an American
Depositary Receipt shall be deemed to have been duly given if personally
delivered or sent by first class air mail postage prepaid, or by cable, telex or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books 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
designated in such request.
Any and all notices to be given to holders of European Depositary Receipts
shall be deemed to have been duly given if published at least once in an
Authorized Newspaper in New York City, London and, to the extent required by law
or applicable stock exchange regulations, in Luxembourg.
37
Delivery of a notice sent by mail or by cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of cable or
telex or facsimile transmission message) is deposited, first class air mail
postage prepaid, in a post office letter box. The Depositary or the Company,
however, may act upon any cable, telex or facsimile transmission message
received by it from the other or from any holder of a Receipt, notwithstanding
that such cable, telex or facsimile transmission message shall not subsequently
be confirmed by letter as aforesaid.
Delivery of a notice given by publication in a newspaper shall be deemed to
be effected upon first publication thereof.
SECTION 7.05. Holders of Receipts are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance
thereof.
SECTION 7.06. Subdepositaries. The Depositary may from time to time
appoint agents to act as Subdepositaries for the purposes of this Deposit
Agreement and may at any time appoint additional Subdepositaries and vary or
terminate the appointment of such Subdepositaries. The Depositary hereby
initially appoints the principal offices of Citibank, N.A. in Amsterdam,
Brussels; Frankfurt am Main, Milan and Paris Citibank (Luxembourg) S.A., the
principal offices of The Bank of Tokyo, Ltd. in Brussels, Dusseldorf, Hong Kong,
London, Milan and Paris and the principal office of Kredietbank S.A.
Luxembourgeoise in Luxembourg as Subdepositaries for all the purposes of this
Deposit Agreement. The Depositary will notify the Company of any change in the
Subdepositaries appointed pursuant to this Section. Each subdepositary shall
perform such duties and exercise such rights of the Depositary consistent with
this Deposit Agreement as the Depositary shall specify in writing to such
Subdepositary and each Subdepositary shall be subject to the direction and
control of the Depositary in respect of matters arising under this Deposit
Agreement.
SECTION 7.07. Amendment and Restatement of Prior Agreements. This Deposit
Agreement amends, restates and consolidates as of October 1,
38
1982, (1) the deposit agreement, dated as of April 15, 1963, as amended and
restated as of September 30, 1974, and as amended by Amendment No. 1, dated as
of March 31, 1975, and by Amendment No. 2, dated as of September 30, 1975, among
the Company, First National City Bank, as Depositary, and the holders of
American depositary receipts issued thereunder; and (2) the deposit agreement,
dated as of December 15, 1968, as amended and restated as of September 30, 1974,
and as amended by Amendment No. 1, dated as of March 31, 1975, and by Amendment
No. 2, dated as of September 30, 1975, among the Company, First National City
Bank, as Depositary, and the holders of European Depositary Receipts issued
thereunder. Such holders of American Depositary Receipts and European Depositary
Receipts issued under such deposit agreements as heretofore in effect shall have
all the rights and be subject to all the obligations of holders of American
Depositary Receipts and European Depositary Receipts, respectively, issued
hereunder.
SECTION 7.08. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by and construed in accordance with the laws of the State of New York,
United states of America. It is understood that notwithstanding any present or
future provision of the laws of the State of New York, the rights of holders of
Stock and other Deposited Securities, and the duties and obligations of the
Company in respect of such holders, as such, shall be governed by the laws of
Japan.
IN WITNESS WHEREOF, Mitsui & Co., Ltd. (Mitsui Xxxxxx Kabushiki Kaisha) and
Citibank, N.A. have duly executed this Agreement as of October 1, 1982 and all
holders of Receipts shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
MITSUI & Co., Ltd.
(Mitsui Xxxxxx Kabushiki Kaisha)
By XXXXXXX XXXX
CITIBANK, N.A.
By XXXXXX X. XXXXXXXX
[CORPORATE SEAL]
Attest:
XXXXXX X. TONES
39
EXHIBIT A
AMERICAN DEPOSITARY RECEIPT
For Common Stock of
MITSUI & CO., LTD.
(Mitsui Xxxxxx Kabushiki Kaisha)
(Incorporated under the Laws of Japan)
No. American Depositary Shares
--------------------------
(Each such share representing 20 shares in
registered form of Common Stock, each having
a par value of 50 yen)
(1) CITIBANK, N.A., a national banking association incorporated under the
laws of the United States of America, having its corporate trust office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and its principal office in London at 000
Xxxxxx, Xxxxxx, X.X. 0X 0XX, Xxxxxxx, as Depositary (the "Depositary"), hereby
certified that
is the owner of American
Depositary Shares (the "Depositary Shares"), representing shares in registered
form of the Common Stock, par value 50 yen per share (the "Stock"), of Mitsui &
Co., Ltd. (Mitsui Xxxxxx Kabushiki Kaisha), incorporated under the laws of Japan
(the "Company"). Each such Depositary Share represents 20 shares of Stock at the
date hereof, deposited at the Kabutocho Branch of The Fuji Bank, Limited or the
Head Office of The Mitsui Bank, Limited, Tokyo, Japan (herein, collectively or
individually as the context may require, called the "Custodian" and such
offices, collectively or individually as the context may require, called the
"designated office" of the Custodian), as agent of the Depositary.
40
(2) The Deposit Agreement. American Depositary Receipts, of which this
Receipt is one, and European Depositary Receipts (the "Receipts") are made
available to shareholders of the Company who are not residents of Japan upon the
terms and conditions set forth in the Deposit Agreement, dated as of October 1,
1982 (the "Deposit Agreement"), among the Company, the Depositary, and all
holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
holders of the Receipts and the rights and duties of the Depositary in respect
of the Stock deposited thereunder and any and all other securities, property and
cash from time to time received in respect of any of such Stock and held
thereunder (the "Deposited Securities"). Copies of the Deposit Agreement are on
file at the corporate trust office of the Depositary, the offices of the
Subdepositaries appointed as provided in the Deposit Agreement and the
designated office of the Custodian in Tokyo. The statements made on the face and
the reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which reference
is hereby made and the terms used herein have the meanings set forth therein
unless otherwise defined herein.
(3) Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt at the corporate trust office of the Depositary in New York City, at the
Depositary's principal office in London or at the office of a Subdepositary and
upon payment of the fee of the Depositary provided in paragraph (10) of this
Receipt, and subject to the terms and conditions of the Deposit Agreement, the
holder hereof is entitled to delivery to him or upon his order of the amount of
Stock and any other Deposited Securities at the time represented hereby;
provided, however, that upon surrender of a Receipt or Receipts by a holder
thereof to the Depositary, then as a result of, and to the extent required by,
the operation of applicable provisions of the Japanese Commercial Code or any
other Japanese law, 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 of 1,000 shares of Stock (or such other number of
shares of Stock as the Articles of Incorporation of the Company may designate as
a "Unit of
41
Share") or an integral multiple thereof (the "deliverable portion" of such
Receipt or Receipts). 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 American Depositary Shares and
European Depositary Shares evidenced by such Receipt or Receipts and by any
European Depositary Receipt or Receipts 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 Receipt or Receipts and shall deliver to such holder a new
Receipt evidencing such non-deliverable portion. In addition, the Depositary
shall notify such holder of the additional amount of Depositary Shares 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 Depositary
Shares of such holder.
(4) Transfers: Split-ups; Combinations of Receipts; Interchangeability of
American and European Depositary Receipts. This Receipt is transferable in the
records of the Depositary by the holder hereof in person or by duly authorized
attorney, upon surrender of this Receipt at the corporate trust office of the
Depositary in New York City, properly endorsed or accompanied by proper
instruments of transfer and duly stamped, and upon such transfer the Depositary
shall execute and deliver an American Depositary Receipt to or upon the order of
the person entitled thereto, as provided in the Deposit Agreement. This Receipt
may be split into other American Depositary Receipts or may be combined with
other American Depositary Receipts into one American Depositary Receipt,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered, upon payment of any taxes and other charges
contemplated by the last sentence of paragraph (10) hereof.
Upon surrender of this Receipt at the corporate trust office of the
Depositary in New York City or at the principal office of the Depositary in
London or at the office of a Subdepositary, and upon payment of the fee of the
Depositary provided in paragraph (10) of this Receipt, and subject to the terms
and conditions of the Deposit Agreement, the holder hereof is entitled to
delivery to him or upon his order of a European Depositary Receipt or Receipts
evidencing European Depositary Shares representing
42
the Deposited Securities represented hereby. Such delivery will be made without
unreasonable delay. Each European Depositary Share and each American Depositary
Share represents 20 shares of Stock deposited pursuant to the Deposit Agreement.
(5) Conditions to Execution and Delivery, Registration of Transfer, etc. of
Receipts. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender or interchange of any Receipt,
the Depositary, any Subdepositary or the Custodian may require payment of a sum
sufficient for reimbursement of 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 Stock being deposited or withdrawn) and
payment of any applicable fee as provided in paragraph (10) of this Receipt, may
require proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as may
be established consistent with the provisions of the Deposit Agreement. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of citizenship or residence, evidence of
the number of shares of Stock beneficially owned or any other matters necessary
or appropriate to evidence compliance with the Foreign Exchange and Foreign
Trade Control Law of Japan, or other information and to execute such
certificates and make such representations and warranties as the Depositary may
deem necessary or proper. The Depositary may withhold the delivery or transfer
of any Receipt or the distribution or sale of any dividend or other distribution
or rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
(6) Suspension of Delivery, Transfer, etc. The delivery of Receipts
against deposits of Stock generally may be suspended, or the delivery of
Receipts against deposits of particular Stock may be withheld, or the
registration of transfer or interchange of Receipts in particular instances may
be refused, or the registration of transfer or surrender or interchange of
outstanding Receipts generally may be suspended, during any period when the
transfer records of the Depositary or the register of shareholders
43
of the Company is closed, or if any such action is deemed necessary or advisable
by the Depositary, any Subdepositary or the Company at any time or from time to
time because of any requirement of law or of any government or governmental body
or commission or under any provision of the Deposit Agreement or for any other
reason. Without limitation of the foregoing, the Depositary will not knowingly
accept for deposit under the Deposit Agreement any Stock required to be
registered under the Securities Act of 1933, unless a registration statement is
in effect as to such Stock.
(7) Liability of Holder for Taxes. If any tax or other governmental charge
shall become payable by the Depositary or any Subdepositary with respect to this
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the holder hereof to the Depositary or
such Subdepositary. The Depositary or any Subdepositary may refuse to effect any
transfer or interchange of this Receipt, or any withdrawal of Deposited
Securities represented hereby, until such payment is made, and may withhold any
dividends or other distributions, or may sell (after attempting by reasonable
means to notify the holder prior to such sale) for the account of the holder
hereof any part or all of the Deposited Securities represented hereby, and may
apply such dividends or other distributions or the proceeds of any such sale
toward such tax or other governmental charge, the holder hereto remaining liable
for any deficiency.
(8) Warranties by Depositor. Every person depositing Stock under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock is validly issued and outstanding, fully paid and non-assessable, that
such Stock is owned by a non-resident of Japan and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Stock and the issuance of Receipts in respect thereof.
(9) Amendment of Deposit Agreement. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable. Any amendment which shall impose or have
the effect of imposing or increasing
44
any fees or charges payable by the holders of Receipts (other than taxes or
other governmental charges, registration fees and cable, telex or facsimile
transmission and delivery expenses and any other fees provided for in the
Deposit Agreement) or which shall otherwise prejudice any substantial existing
right of holders of Receipts shall, however, not become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the record holders of Receipts and published
as provided in the Deposit Agreement. Every holder of a Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, 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 hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby, except in order to comply with
mandatory provisions of applicable law.
(10) Charges of Depositary. The Depositary will charge the party to whom
Receipts are delivered against deposits of Stock (other than Stock deposited
pursuant to Sections 4.03 and 4.04 of the Deposit Agreement relating to stock
dividends, free distributions of Stock and rights offerings) and the party
surrendering Receipts for delivery of Stock and other Deposited Securities, as
follows:
RATE PER EACH 100
MARKET PRICE PER AMERICAN DEPOSITARY SHARES
AMERICAN DEPOSITARY SHARE OR FRACTION THEREOF
ON DELIVERY OR SURRENDER DELIVERED OR SURRENDERED
------------------------- --------------------------
Below $5.00 .............................. $3.00
$5.00 - $10.00 .............................. $4.00
Over $10.00 .............................. $5.00
The Depositary will charge the party interchanging Receipts for European
Depositary Receipts a fee of $1.00 per 100 Depositary Shares or fraction thereof
represented by such Receipts offered for interchange, but not exceeding $6.00
per Receipt so offered. The Company will pay other charges of the Depositary
(subject to consultation and agreement between the Company and the Depositary),
with the exception of taxes and other
45
governmental charges, stock transfer or registration fees on deposits or
transfers of Stock, and such cable, telex or facsimile transmission and delivery
charges as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing Stock or holders of Receipt.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by properly executed instruments of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until this Receipt shall be transferred on
the books of the Depositary as provided in the Deposit Agreement, the Depositary
and the Subdepositaries, notwithstanding any notice to the contrary, may treat
the record holder hereof for the time being as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(12) Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Deposited Securities, the
Depositary will, if at the time of receipt thereof any non-dollar currency
amounts so received can in its judgment be converted (at the official or other
rate of exchange) on a reasonable basis into United States dollars, convert such
dividend or distribution into United States Dollars and will distribute the
amount thus received to the holders of Receipts entitled thereto, in proportion
to the number of Depositary Shares held by them, respectively; provided,
however, that the amount distributed on any Receipt will be reduced by any
amounts required to be withheld by the Company or the Depositary on account of
taxed in respect of the Deposited Securities represented by such Receipt. If any
distribution consists of a dividend in, or free distribution of, Stock, the
Depositary may in its discretion, with the approval of the Company, distribute
to the holders of Receipts entitled thereto, proportionately as aforesaid,
additional Receipts for an aggregate number of Depositary Shares representing
the amount of Stock received as such dividend or free distribution. In lieu of
delivering Receipts for fractional Depositary Shares in any such case, the
Depositary may, in its
46
discretion, sell the amount of Stock, or the amount of Depositary Shares,
represented by the aggregate of such fractions at public or private sale, at
such place or places and upon such terms as it may deem proper or, if any
portion of such amount consists of shares of Stock which are insufficient in
number to constitute a full Unit, sell such portion to the Company in accordance
with the applicable provisions of the Japanese Commercial Code or any other
Japanese law, and distribute the net proceeds of any such sale, all in the
manner and subject to the conditions described in the Deposit Agreement.
(13) Rights. Whenever the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Stock or any rights of any other nature, such rights shall be made available by
the Depositary to the holders of Receipts entitled thereto in such manner as the
Depositary may determine, either by the issue to the holders of Receipts
entitled thereto of warrants representing such rights or by such other method as
may be approved by the Depositary in its discretion; provided, however, that if
at the time of issue or offer of any rights the Depositary determines that it is
not lawful or not feasible to make such rights available to holders of Receipts
by the issue of warrants or otherwise, or if and to the extent so instructed by
holders of Receipts who do not desire to exercise such rights, the Depositary in
its discretion may, if applicable laws permit, sell such rights at public or
private sale, at such place or places and upon such terms as it may deem proper,
and distribute the net proceeds to the holders of Receipts entitled thereto as
in the case of a distribution received in cash.
So long as the aggregate number of shares of Stock held by or for United
States residents exceeds 1% of the total number of shares of Stock then
outstanding, if registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for holders of Receipts to be
offered or sold the securities covered by such rights, the Company has agreed
that it will file promptly a registration statement with respect to such rights
and securities and use its best efforts and take all steps available to it to
cause such registration statement to become effective at least 21 days before
such rights shall expire. In no event shall the Depositary offer such rights to
the holders of Receipts unless and until such a registration statement is in
effect, or unless the offering and sale of
47
such securities to the holders of such Receipts are exempt in the opinion of
counsel from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights to be made available to holders of Receipts in any such jurisdiction, the
Company has agreed that it will use its best efforts, to the extent not unduly
burdensome in the judgment of the Company, to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
the rights to enable holders of Receipts to exercise such rights.
(14) Fixing of Record Date. Whenever any cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be offered, with respect to the Stock or other Deposited Securities, or
whenever the Depositary shall receive notice of any meeting of holders of Stock
or other Deposited Securities or whenever the Depositary shall receive notice of
the fixing of a record date by the Company either for the determination of
holders of Stock or other Deposited Securities entitled to vote at any meeting
of any such holders or for the determination of holders of Stock or other
Deposited Securities entitled to receive a distribution in respect thereof, the
Depositary shall fix a record date for the determination of the holders of
American Depositary Receipts who shall be entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting.
(15) Voting Rights. Upon receipt of notice of any meeting of holders of
Stock or other Deposited Securities the Depositary will, as soon as practicable
after fixing a record date for determining the record holders of American
Depositary Receipts entitled to give instructions for the exercise of voting
rights, and after receipt from the Company of notice of such meeting, mail to
such holders a notice which will contain (a) such information as is contained in
such notice of meeting and (b) a statement that the record holders of Receipts
at the close of business on a specified record date will be entitled, subject to
any applicable provisions of law and of the Articles of Incorporation of the
Company, to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock or
48
other Deposited Securities represented by their respective Depositary Shares,
and a brief statement as to the procedure by which such instructions may be
given, including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of a record holder of a Receipt on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary will endeavor insofar as practicable to vote or cause to be voted
the amount of Stock or other Deposited Securities represented by such Receipt in
accordance with the instructions set forth in such request. In the absence of
instructions from the record holder of a Receipt, the Depositary has agreed to
use its best efforts to give a discretionary proxy to a person designated by the
Company; provided, however, such discretionary proxy shall not be given with
respect to any proposition (a) as to which the Depositary has knowledge of any
contest to the action to be taken at the meeting or (b) for the purpose of
authorizing a merger, consolidation or amalgamation (except an amalgamation
between the Company and one or more of its 100% owned Japanese subsidiaries) or
on any other matter which may affect substantially the rights or privileges of
the holders of such Stock or other Deposited Securities. The Company has agreed
to take all reasonable action which shall at any time be deemed necessary in
order to enable the Depositary to vote or cause to be voted the amount of Stock
or other Deposited Securities represented by every American Depositary Receipt,
the record holder of which shall have furnished a written request setting forth
instructions to the Depositary as aforesaid, in accordance with the instructions
set forth in such request.
(16) Changes Affecting Deposited Securities. Upon any change in par value
or other attribute of Deposited Securities, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation or sale of assets
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of the Company, and in such manner as the
Depositary may deem equitable, treat any securities received by the Depositary
in exchange for or on conversion of or in respect of Deposited Securities as new
Deposited Securities under the Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion. In any
49
such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts as in the case of a Stock
dividend, or may call for the surrender of outstanding Receipts to be exchanged
for new Receipts specifically describing such new Deposited Securities.
(17) Reports, Inspection of Transfer Records. The Depositary will make
available for inspection by holders of Receipts at its corporate trust office in
New York, at its principal office in London and at the offices of the
Subdepositaries, and will furnish to the Securities and Exchange Commission,
Washington, D.C. to the extent required by applicable rules and regulations, any
reports and communications received from the Company which are both (a) received
by the Depositary or its nominee as the holder of the Deposited Securities, and
(b) made generally available to the holders of Stock by the Company. The
Depositary will also mail to record holders of American Depositary Receipts
copies of such reports when furnished by the Company as provided in Deposit
Agreement. The Depositary will keep records for the transfer of American
Depositary Receipts which at all reasonable times will be open for inspection by
the holders of American Depositary Receipts and the Company, provided that such
inspection by a holder shall not be for the purpose of communicating with
holders of Receipts in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
Receipts.
(18) Liability of the Company, the Depositary, the Subdepositaries and the
Custodian. Neither the Depositary, any Subdepositary, the Custodian nor the
Company shall incur any liability to any holder of this Receipt, if 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 action of any other governmental
authority, or in the case of the Depositary, a Subdepositary or the Custodian,
by reason of any provision, present or future, of the Articles of Incorporation
or the Share Handling Regulations of the Company, or by reason of any act of God
or war or other circumstances beyond its control, the Depositary, any
Subdepositary, the Custodian or the Company shall be prevented or forbidden from
or subjected to any civil or criminal penalty on account of doing or performing
50
any act which the Deposit Agreement provides shall be done or performed; nor
shall the Depositary, any Subdepositary, the Custodian or the Company incur any
liability to any holder hereof by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act which it is so provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement.
(19) Obligations of the Depositary, the Subdepositaries, the Custodian and
the Company. Neither the Depositary, any Subdepositary, the Custodian nor the
Company assumes any obligation or shall be subject to any liability under the
Deposit Agreement to holders of Receipts except that each has agreed to use its
best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
Neither the Depositary, any subdepositary nor the Company 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 expense and liability be furnished as often as
may be required, and the Custodian shall not be under any obligation whatsoever
with respect to such proceedings, the responsibility of the Custodian being
solely to the Depositary. Neither the Depositary, any such Subdepositary, the
Custodian nor the Company shall be liable for any action or non-action by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt, or any other
person believed by it in good faith to be competent to give such advice or
information, or for translation or any notice, report or other document made by
a translator believed by it to be competent. The Depositary, any such
Subdepositary, the Custodian or the Company may rely and shall be protected in
acting upon any written notice, request, direction, or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. Neither the Depositary nor the Custodian will be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities or
for the manner or effect of any such vote made, as long as any such action or
non-action is in good faith.
51
The Company will indemnify the Depositary, any Registrar, any Subdepositary
and the Custodian against, and hold each of them harmless from, any liability
which may arise out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement or this Receipt, (i) by the Company or any
of its agents, or (ii) by the Depositary, such Registrar or any of their agents
(including the Custodian and the Subdepositaries), except for any liability
arising out of negligence or bad faith.
The Depositary will indemnify the Company against any liability which may
arise out of acts performed or omitted by the Depositary or its agents
(including the Custodian and the Subdepositaries) due to negligence or bad
faith.
The Depositary, any Subdepositary and the Custodian may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
(20) Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign by written notice of its election so to do
delivered to the Company and the Custodian, such resignation to take effect upon
the appointment of a successor depositary and its acceptance of such
appointment. The Depositary may at any time be removed by the Company by written
notice, such removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment. In the case of such
resignation or removal, the Company shall, within 30 days after the delivery of
the notice thereof, appoint a successor depositary. The Depositary may at any
time appoint a substitute Custodian.
(21) Termination of Deposit Agreement. The Depositary will, if at any time
the Company so requests, terminate the Deposit Agreement by mailing notice of
such termination to the record holders of all American Depositary Receipts then
outstanding and by publishing notice, in each case at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement in accordance with the same notice requirements
if at any time 30 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor
52
depositary shall not have been appointed and accepted its appointment. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of Receipts, except as provided below,
will suspend the distribution of dividends to the holders thereof, and will not
give any further notices (other than notice of such termination) or perform any
further acts under the Deposit Agreement, except as provided below and expect
that the Depositary will continue to collect dividends and other distributions
pertaining to Deposited Securities, will sell rights as provided in the Deposit
Agreement and will continue to deliver Deposited Securities 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. Upon termination of the Deposit Agreement, the
Depositary shall deliver Stock in respect of deliverable portions of such
Receipts so surrendered and deliver Receipts in respect of the non-deliverable
portion of Receipts so surrendered pursuant to the Deposit Agreement and, except
as provided below, will continue to effect transfers of Receipts representing
non-deliverable portions in accordance with the Deposit Agreement. At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held under the Deposit Agreement at
public or private sale, at such place or places and upon such terms as it deems
proper or, if any portion of such Deposited Securities consists of shares of
Stock which are insufficient in number to constitute a full Unit, sell such
portion to the Company in accordance with the applicable provisions of the
Japanese Commercial Code or any other Japanese law or regulation, and may
thereafter hold the net proceeds of any such sale, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, for
the pro rata benefit of the holders of Receipts which have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash. Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations thereunder except for its obligations to the
Depositary, any Registrar and the Custodian with respect to indemnification and
the Depositary's charges and expenses.
53
(22) Subdepositaries. The Depositary has initially appointed the principal
offices of Citibank, N.A. in Amsterdam, Brussels, Frankfurt am Main, Milan and
Paris, Citibank (Luxembourg) S.A., the principal office of Kredietbank S.A.
Luxembourgeoise in Luxembourg and the principal offices of The Bank of Tokyo,
Ltd. in Brussels, Dusseldorf, Hong Kong, London, Milan and Paris as
Subdepositaries for all the purposes of the Deposit Agreement. The Depositary
may vary or terminate the appointment of such Subdepositaries.
54
(23) Governing Law. This Receipt, and all rights hereunder and provisions
hereof, shall be governed by and construed in accordance with the laws of the
State of New York, United States of America. It is understood that
notwithstanding any present or future provision of the laws of the State of New
York, the rights of holders of Stock and other Deposited Securities, and the
duties and obligations of the Company in respect of such holders, as such, shall
be governed by the laws of Japan. This American Depositary Receipt shall not be
entitled to any benefits under the Deposit Agreement or be valid or obligatory
for any purpose, unless this American Depositary Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if a Registrar for the Receipts shall have been appointed, by the manual
signature of a duly authorized officer of such Registrar.
Dated:
--------------------------
CITIBANK, N.A.,
Depositary
By
--------------------------------
Vice President
Countersigned:
--------------------------------
Authorized Officer
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- Custodian
----------------- ----------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------
(State)
Additional abbreviations may also be used though not in the above list.
Please Insert Social Security or Other
Identifying Number of Assignee
--------------------------------------
--------------------------------------
55
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within American Depositary Receipt and all rights and interests
represented thereby, and hereby irrevocably constitutes and appoints
attorney, to transfer the same on the books of
the within named Depositary, with full power of substitution in the premises.
Dated:
-------------------------
Signature
------------------------------
Signature Guaranteed:
NOTE: The signature to any endorsement hereon must correspond with the name as
written upon the face of the Receipt, in every particular, without
alteration or enlargement, or any change whatever.
56
EXHIBIT B
EUROPEAN DEPOSITARY RECEIPT
For Common Stock of
MITSUI & CO., LTD.
(Mitsui Xxxxxx Kabushiki Kaisha)
(Incorporated under the Laws of Japan)
No Depositary Shares
----------------- ----------------
(Each such share representing 20
shares in registered form of Common
Stock, each having a par value of 50
yen)
(1) CITIBANK, N.A., a national banking association incorporated under the
laws of the United States of America, having its corporate trust office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and its principal office in London at 000
Xxxxxx, Xxxxxx, X.X. 0X 0XX, Xxxxxxx, as Depositary (the "Depositary"), hereby
certifies that the holder (the term "holder" when used herein with respect to
Receipts, including this Receipt, or to the coupons or talon appertaining
thereto shall mean the then bearer thereof) hereof is the owner of
European Depositary Shares (the "Depositary Shares"), representing shares in
registered form of the Common Stock, par value 50 yen per share (the "Stock"),
of Mitsui & Co., Ltd. (Mitsui Xxxxxx Kabushiki Kaisha), incorporated under the
laws of Japan (the "Company"). Each such Depositary Share represents 20 shares
of Stock at the date hereof, deposited at the Kabutocho Branch of The Fuji Bank,
Limited or the Head Office of The Mitsui Bank, Limited, Tokyo, Japan (herein
collectively or individually as the context may require, called the "Custodian"
and such offices, collectively or individually as the context may require,
called the "designated office" of the Custodian), as agent of the Depositary.
(2) The Deposit Agreement. European Depositary Receipts (the "Receipts"),
of which this Receipt is one, and American Depositary Receipts are made
available to shareholders of the Company who are not residents of Japan, upon
the terms and conditions set forth in the Deposit Agreement, dated as of October
1, 1982 (the "Deposit Agreement"), among the Company, the Depositary and all
holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
holders of the Receipts and the rights and duties of the Depositary in respect
of the Stock deposited thereunder and any and all other securities, property and
cash from time to
57
time received in respect of any of such Stock and held thereunder (the
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
principal office of the Depositary in London, the offices of the Subdepositaries
appointed as provided in the Deposit Agreement and the designated office of the
Custodian in Tokyo. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
subject to the detailed provisions thereof, to which reference is hereby made
and the terms used herein have the meanings set forth therein unless otherwise
defined herein.
(3) Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt at the principal office of the Depositary in London or at the office of
a Subdepositary, and upon payment of the fee of the Depositary provided in
paragraph (10) of this Receipt, and subject to the terms and conditions of the
Deposit Agreement, the holder hereof is entitled to delivery to him or upon his
order of the amount of Stock and any other Deposited Securities at the time
represented hereby; provided, however, that upon surrender of a Receipt or
Receipts by a holder thereof to the Depositary, then as a result of, and to the
extent required by, the operation of applicable provisions of the Japanese
Commercial Code or any other Japanese law the Depositary will affect the
delivery to such holder of only that portion of Stock (and any other Deposited
Securities relating to such Stock) comprising a unit of 1,000 shares of Stock
(or such other number of shares of Stock as the Articles of Incorporation of the
Company may designate as a "Unit of Shares") or an integral multiple thereof
(the "deliverable portion" of such Receipt or Receipts). 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
American Depositary Shares and European Depositary Shares evidenced by such
Receipt or Receipts and by any American Depositary Receipt or Receipts
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 Receipt or Receipts and shall
deliver to such holder a new Receipt evidencing such non-deliverable portion. In
addition, the Depositary shall notify such holder of the additional amount of
Depositary Shares 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 Depositary Shares of such holder.
(4) Combinations and Split-ups of Receipts; Interchangeability of American
and European Depositary Receipts. This Receipt may be split into other Receipts
or may be combined with other European Depositary
58
Receipts into one European Depositary Receipt, evidencing the same aggregate
number of European Depositary Shares as the Receipt or Receipts surrendered upon
payment of any taxes and other charges contemplated by the last sentence of
paragraph (10) hereof.
Upon surrender of this Receipt at the corporate trust office of the
Depositary or at the principal office of the Depositary in London or at the
office of a Subdepositary, and upon payment of the fee of the Depositary
provided in paragraph (10) of this Receipt, and subject to the terms and
conditions of the Deposit Agreement, the holder hereof is entitled to delivery
to him or upon his order of an American Depositary Receipt or Receipts
evidencing American Depositary Shares representing the Deposited Securities
represented hereby. Such delivery will be made without unreasonable delay. Each
European Depositary Share and each American Depositary Share represents 20
shares of Stock of the Company deposited pursuant to the Deposit Agreement.
(5) Conditions to Execution and Delivery, Etc. of Receipts. As a condition
precedent to the execution and delivery, split-up, combination or surrender or
interchange of any Receipt, the Depositary, any Subdepositary or the Custodian
may require payment of a sum sufficient for reimbursement of 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 Stock being
deposited or withdrawn) and payment of any fees as provided in paragraph (10) of
this Receipt, may require proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as may be established consistent with the provisions of the
Deposit Agreement. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of citizenship or
residence, evidence of the number of shares of the Stock beneficially owned or
any other matters necessary or appropriate to evidence compliance with the
Foreign Exchange and Foreign Trade Control Law of Japan or other information and
to execute such certificates and make such representations and warranties as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery of any Receipt or the distribution or sale of any dividend or other
distribution or rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filled or such
certificates are executed or such representations or warranties are made.
(6) Suspension of Delivery, Etc. The delivery of Receipts against deposits
of Stock generally may be suspended, or the delivery of Receipts against
deposits of particular Stock may be withheld, or the surrender or
59
interchange of outstanding Receipts generally or in particular cases may be
suspended, during any period when the register of shareholders of the Company is
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission or under any
provision of the Deposit Agreement or for any other reason. Without limitation
of the foregoing, the Depositary will not knowingly accept for deposit under the
Deposit Agreement any Stock required to be registered under the United States
Securities Act of 1933, unless a registration statement is in effect as to such
Stock.
(7) Liability of Holder for Taxes. If any or other governmental charge
shall become payable by the Depositary or any Subdepositary with respect to this
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the holder hereof to the Depositary or
such Subdepositary. The Depositary or any Subdepositary may refuse to effect any
transfer or interchange of this Receipt or any withdrawal of Deposited
Securities represented hereby, until such payment is made, and may withhold any
dividends or other distributions, or may sell (after attempting by reasonable
means to notify the holder prior to such sale), for the account of the holder
hereof, any part or all of the Deposited Securities represented hereby, and may
apply such dividends or other distributions or the proceeds of any such sale
toward such tax or charge, the holder hereof remaining liable for any
deficiency.
(8) Warranties by Depositor. Every person depositing Stock under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock is validly issued and outstanding, fully paid and non-assessable, that
such Stock is owned by a non-resident of Japan and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Stock, and the issuance of Receipts in respect thereof.
(9) Amendment of Deposit Agreement. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges payable by the holders of Receipts (other than
taxes or other governmental charges, registration fees, and cable, telex or
facsimile transmission and delivery expenses and any other fees provided for in
the Deposit Agreement) or which shall otherwise prejudice any substantial
existing right of holders of Receipts shall not become effective as to
outstanding Receipts until the expiration of three
60
months after notice of such amendment shall have been given to record holders of
American Depositary Receipts and published as hereinafter provided. Every holder
of a Receipt at the time any such amendment so becomes effective shall be deemed
by continuing to hold such Receipt, 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 hereof to surrender this Receipt and
receive therefor the Deposited Securities represented hereby, except in order to
comply with mandatory provisions of applicable law.
(10) Charges of Depositary. The Depositary will charge the party to whom
Receipts are delivered against deposits of Stock (other than Stock deposited
pursuant to Sections 4.03 and 4.04 of the Deposit Agreement relating to stock
dividends, free distributions of Stock and rights offerings) and the party
surrendering Receipts for delivery of Stock and other Deposited Securities, as
follows:
RATE PER EACH 100
MARKET PRICE PER EUROPEAN DEPOSITARY
EUROPEAN DEPOSITARY SHARES OR FRACTION
SHARE ON DELIVERY THEREOF DELIVERED
OR SURRENDER OR SURRENDERED
------------------- -------------------
Below $5.00 .............................. $3.00
$5.00 - $10.00 .............................. 4.00
Over $10.00 .............................. 5.00
The Depositary will charge the party interchanging Receipts for American
Depositary Receipts a fee of $1.00 per 100 Depositary Shares or fraction thereof
represented by such Receipts offered for interchange, but not exceeding $6.00
per Receipt so offered. The Company will pay other charges of the Depositary
(subject to consultation and agreement between the Company and the Depositary),
with the exception of taxes and other governmental charges, stock transfer or
registration fees on deposits or transfers of Stock, and such cable, telex or
facsimile transmission and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Stock or holders of
Receipts.
(11) Title to Receipts. Title to this Receipt (and to the Depositary
Shares evidenced hereby) and to any coupons and talon appertaining hereto is
transferable by delivery and the Depositary and the Subdepositaries,
notwithstanding any notice to the contrary, may treat the holder hereof and the
holder of any coupons or talon for the time being as the absolute owner hereof
and thereof for the purpose of determining the person entitled to distribution
of dividends or other distributions and for all other purposes.
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(12) Dividends and Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Deposited Securities, the
Depositary will, if at the time of receipt thereof any non-dollar currency
amounts so received can in its judgment be converted (at the official or other
rate of exchange) on a reasonable basis into United States dollars convert such
dividend or distribution into United States dollars and will make available for
distribution the amount thus received to the holders of Receipts entitled
thereto, in proportion to the number of Depositary Shares held by them,
respectively; provided, however, that the amount distributed on any Receipt will
be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes in respect of the Deposited Securities
represented by such Receipt. If any distribution consists of a dividend in, or
free distribution of, Stock, the Depositary may in its discretion, with the
approval of the Company, make available for distribution to the holders of
Receipts entitled thereto, proportionately as aforesaid, additional Receipts for
an aggregate number of Depositary Shares representing the amount of Stock
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional Depositary Shares in any such case, the Depositary may, in its
discretion, sell the amount of Stock, or the amount of Depositary Shares,
represented by the aggregate of such fractions at public or private sale, at
such place or places and upon such terms as it may deem proper or, if any
portion of such amount consists of shares of Stock which are insufficient in
number to constitute a full Unit, sell such portion to the Company in accordance
with the applicable provisions of the Japanese Commercial Code or any other
Japanese law, and make available for distribution the net proceeds of any such
sale, all in the manner and subject to the conditions described in the Deposit
Agreement.
Payments in United States dollars in respect of this Receipt will be made,
subject to applicable laws and regulations, by check drawn on, or transfer to a
Unite States dollar account maintained by the payee with, a bank in New York
City.
(13) Rights. Whenever the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Stock or any rights of any other nature, such rights shall be made available by
the Depositary to the holders of Receipts in such manner as the Depositary may
determine, either by the issue to such holders of warrants representing such
rights or by such other method as may be approved by the Depositary in its
discretion; provided, however, that if at the time of issue or offer of any
rights the Depositary determines that it is not lawful or not feasible to make
such rights available to holders of
62
Receipts by the issue of warrants or otherwise, or if and to the extent so
instructed by holders of Receipts who do not desire to exercise such rights, the
Depositary in its discretion may, if applicable laws permit, sell such rights at
public or private sale, at such place or places and upon such terms as it may
deem proper, and distribute the net proceeds to the holders of Receipts entitled
thereto as in the case of a distribution received in cash.
So long as the aggregate number of shares of Stock held by or for United
States residents exceeds 1% of the total number of shares of Stock then
outstanding, if registration under the United States Securities Act of 1933 of
the securities to which any rights relate is required in order for holders of
Receipts to be offered or sold the securities covered by such rights, the
Company has agreed that it will file promptly a registration statement with
respect to such rights and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
at least 21 days before such rights shall expire. In no event shall the
Depositary make available such rights to the holders of Receipts unless and
until such a registration statement is in effect, or unless the offering and
sale of such securities to the holders of such Receipts are exempt in the
opinion of counsel from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
of administrative authorization, consent or permit is required in order for such
rights to be made available to holders of Receipts in any such jurisdiction, the
Company has agreed that it will use its best efforts, to the extent not unduly
burdensome in the judgment of the Company, to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
the rights to enable holders of Receipts to exercise such rights.
(14) Presentation of Coupons; Notices to Receipt Holders. Upon any
distribution under paragraph (12) or upon the offer of any rights under
paragraph (13), the Depositary shall not be obliged to make any such
distribution or to offer any such rights except upon delivery to it of such
coupon as it shall designate. Whenever any cash distribution shall become
payable or any distribution other than cash shall be made or any rights shall be
offered with respect to the Deposited Securities, the Depositary shall publish
notice thereof. Whenever it is provided herein or in the Deposit Agreement that
notice shall be given to Receipt holders, such notice shall, subject to
applicable law, be given by publication at least once each in New York City and
in London and, to the extent required by law or applicable stock exchange
regulation, in Luxembourg.
(15) Voting Rights. Upon receipt of notice of any meeting of holders of
Stock or other Deposited Securities the Depositary will, as soon as
63
practicable thereafter, publish notice thereof, which notice will contain (a)
such information as is contained in such notice of meeting and, in the judgment
of the Depositary, is material to the exercise of voting rights, or a brief
summary of the matters to be acted upon at such meeting together with a
statement that a copy of an English translation of said notice is available for
inspection at certain designated places (which shall be identified in such
notice), and (b) a statement that the holders of Receipts will be entitled,
subject to any applicable provisions of law and of the Articles of Incorporation
of the Company, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock or other Deposited Securities
represented by their respective Depositary Shares, and a brief statement as to
the procedure by which such instructions may be given, including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of a holder of a Receipt, received on or before the date established by
the Depositary for such purpose, and, if required by the Depositary, upon
deposit of his Receipt or the coupon appertaining thereto at such place as is
designated by the Depositary for such purpose, received on or before the date
established by the Depositary for such purpose, the Depositary will endeavor
insofar as practicable to vote or cause to be voted the amount of Stock or other
Deposited Securities represented by such Receipt in accordance with the
instructions set forth in such request. In the absence of instructions from the
holder of a Receipt the Depositary has agreed to use its best efforts to give a
discretionary proxy to a person designated by the Company; provided, however,
such discretionary proxy shall not be given with respect to any proposition (a)
as to which the Depositary has knowledge of any contest to the action to be
taken at the meeting or (b) for the purpose of authorizing a merger,
consolidation or amalgamation (except an amalgamation between the Company and
one or more of its 100% owned Japanese subsidiaries) or on any other matter
which may affect substantially the rights or privileges of the holder of such
Stock or other Deposited Securities. The Company has agreed to take all
reasonable action which shall at any time be deemed necessary in order to enable
the Depositary to vote or cause to be voted the amount of Stock or other
Deposited Securities represented by every European Depositary Receipt, the
holder of which shall, if required by the Depositary, have deposited such
Receipt or coupon designated for such purpose and shall have furnished a written
request setting forth instruction to the Depositary as aforesaid, in accordance
with the instructions set forth in such request.
(16) Changes Affecting Deposited Securities. Upon any change in par value
or other attribute of Deposited Securities, or upon any
64
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of assets affecting the Company or to which it is a party, the Depositary may in
its discretion with the approval of the Company, and in such manner as the
Depositary may deem equitable, treat any securities received by the Depositary
in exchange for or on conversion of or in respect of Deposited Securities as new
Deposited Securities under the Deposit Agreement, and Receipts then outstanding
shall thenceforth represent such new Deposited Securities so received in
exchange or conversion. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts as in
the case of a Stock dividend, or may call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
(17) Reports. The Company will furnish to the Depositary certain notices,
financial statements and reports of the Company, and the Depositary is required
to make available for inspection by holders of Receipts at its corporate trust
office, at its principal office in London and at the offices of the
Subdepositaries, and will furnish to the Securities and Exchange Commission in
Washington, D.C. to the extent required by applicable rules and regulations, any
reports and communications received from the Company which are both (a) received
by the Depositary or its nominee as the holder of the Deposited Securities, and
(b) made generally available to the holders of Stock by the Company.
(18) Liability of the Company, the Depositary, the Subdepositaries and the
Custodian. Neither the Depositary, any Subdepositary, the Custodian nor the
Company shall incur any liability to any holder of this Receipt, if 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 action of any other governmental
authority, or in the case of the Depositary, a Subdepositary or the Custodian,
by reason of any provision, present or future, of the Articles of Incorporation
or the Share Handling Regulations of the Company, or by reason of any act of God
or war or other circumstances beyond its control, the Depositary, any
Subdepositary, the Custodian or the Company shall be prevented or forbidden
from, or subjected to any civil or criminal penalty on account of, doing or
performing any act which the Deposit Agreement provides shall be done or
performed; nor shall the Depositary, any Subdepositary, the Custodian or the
Company incur any liability to any holder hereof by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act
which the Deposit Agreement provides shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement.
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(19) Obligations of the Depositary, the Subdepositaries, the Custodian and
Company. Neither the Depositary, any Subdepositary, the Custodian nor the
Company assumes any obligation or shall be subject to any liability under the
Deposit Agreement to holders of Receipts except that each has agreed to use its
best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
Neither the Depositary, any Subdepositary nor the Company 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 expense and liability be furnished as often as
may be required, and the Custodian shall not be under any obligation whatsoever
with respect to such proceedings, the responsibility of the Custodian being
solely to the Depositary. Neither the Depositary, any Subdepositary, the
Custodian nor the Company shall be liable for any action or non-action by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information,
or for any translation of any notice, report or other document made by a
translator believed by it to be competent. The Depositary, any Subdepositary,
the Custodian and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
Neither the Depositary nor the Custodian will be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities or for the
manner or effect of any such vote made, as long as any such action or non-action
is in good faith.
The Company will indemnify the Depositary, any Registrar, any Subdepositary
and the Custodian against, and hold each of them harmless from, any liability
which may arise out of acts performed or omitted, in accordance with the Deposit
Agreement and this Receipt (i) by the Company or any of its agents, or (ii) by
either the Depositary, such Registrar or any of their agents (including the
Custodian and the Subdepositaries), except for any liability arising out of
negligence or bad faith.
The Depositary will indemnify the Company against, and hold it harmless
from, any liability which may arise out of acts performed or omitted by the
Depositary or its agents (including the Custodian and the Subdepositaries) due
to negligence or bad faith.
The Depositary, any Subdepositary and the Custodian may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
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(20) Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign as Depositary by written notice of its
election so to do delivered to the Company and the Custodian, such resignation
to take effect upon the appointment of a successor depositary and its acceptance
of such appointment. The Depositary may at any time be removed by the Company by
written notice of such removal, such removal to take effect upon the appointment
of a successor depositary and its acceptance of such appointment. In the case of
such resignation or removal, the Company shall, within 30 days after the
delivery of the notice thereof, appoint a successor depositary. The Depositary
may, after consultation with the Company, at any time appoint a substitute
Custodian.
(21) Termination of Deposit Agreement. The Depositary will, if at any time
the Company so requests, terminate the Deposit Agreement by publishing notice of
such termination to the holders of Receipts at least 30 days prior to the date
fixes in such notice for such termination. The Depositary may likewise terminate
the Deposit Agreement in accordance with the same notice requirements if at any
time 30 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment. If any Receipts
shall remain outstanding after the date of termination, the Depositary
thereafter will suspend the distribution of dividends to the holders thereof,
and will not give any further notices (other than notice of such termination) or
perform any further acts under the Deposit Agreement, except as provided below
and except that the Depositary will continue to collect dividends and other
distributions pertaining to Deposited Securities, will sell rights as provided
in the Deposit Agreement and will continue to deliver Deposited Securities
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. Upon termination of the Deposit
Agreement, the Depositary shall deliver Stock in respect of deliverable portions
of such Receipts so surrendered and deliver Receipts in respect of the
non-deliverable portion of Receipts so surrendered pursuant to the Deposit
Agreement. At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement at public or private sale, at such place or places and
upon such terms as it deems proper or, if any portion of such Deposited
Securities consists of shares of Stock which are insufficient in number to
constitute a full Unit, sell such portion to the Company in accordance with the
applicable
67
provisions of the Japanese Commercial Code or any other Japanese law,
and may thereafter hold the net proceeds of any such sale, together with any
other cash then held by it under the Deposit Agreement, without liability for
interest, for the pro rata benefit of the holders of Receipts which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement (except to account
for such net proceeds and other cash). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Registrar and the Custodian
with respect to indemnification and the Depositary's charges and expenses.
(22) Subdepositaries. The Depositary has initially appointed the principal
offices of Citibank, N.A. in Amsterdam, Brussels, Frankfurt am Main, Milan and
Paris, Citibank (Luxembourg) S.A., the principal offices of The Bank of Tokyo,
Ltd. in Brussels, Dusseldorf, Hong Kong, London, Milan and Paris and the
principal office of Kredietbank S.A. Luxembourgeoise in Luxembourg as
Subdepositaries for all the purposes of the Deposit Agreement. The Depositary
may vary or terminate the appointment of such Subdepositaries.
(23) Governing Law. This Receipt, and all rights hereunder and provisions
hereof, shall be governed by and construed in accordance with the laws of the
State of New York, United States of America. It is understood that
notwithstanding any present or future provision of the laws of the State of New
York, the rights of holders of Stock and other Deposited Securities, and the
duties and obligations of the Company in respect of such holders, as such, shall
be governed by the laws of Japan.
This European Depositary Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or obligatory for any purpose, unless
this European Depositary Receipt shall bear the manual or facsimile signature of
a duly authorized officer of the Depositary and shall have been countersigned in
its name by the manual signature of a duly authorized officer thereof.
Dated:
---------------------
CITIBANK, N.A.,
Depositary
By
-----------------------------
Vice President
Countersigned:
----------------------------
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Authorized Officer
69
[FORM OF TALON]
European Depositary Shares
---------------
MITSUI & CO., LTD.
EUROPEAN DEPOSITARY RECEIPT
CITIBANK, N.A. as DEPOSITARY
An additional supply of coupons and a talon will be delivered when all
coupons heretofore attached have been exhausted or notice published regarding
the exchange of talons, at the office of the Depositary, 000 Xxxxxx, Xxxxxx X.X.
0X 0XX, Xxxxxxx, or at the office of one of the Subdepositaries, or at such
other place as may be designated in the notice.
Receipt No.
-------------
CITIBANK, N.A.
Talon No.
---------------
________________
[FORM OF COUPON]
Coupon No. European Depositary Shares
-------------- -------------
MITSUI & CO., LTD.
CITIBANK, N.A.
Presentable at the office of the Depositary, 000 Xxxxxx, Xxxxxx X.X. 0X
0XX, Xxxxxxx, or at the office of one of the Subdepositaries, as and when
declared by notice, or at such other place as may be designated in the notice
announcing a distribution or officer in respect of the coupon. Coupon from
European Depositary Receipt No.
-----------------
CITIBANK, N.A.
70
EXHIBIT C
LEGEND TO BE INCLUDED ON FACE OF
AMERICAN DEPOSITARY RECEIPT
AND
EUROPEAN DEPOSITARY RECEIPT
_______________
SUBSCRIPTION RIGHTS: Offerings of rights to subscribe to additional
underlying securities have been made under Japanese practice in substantial
amounts, with a subscription price substantially below the current market price
of the security. The Company has agreed in the Deposit Agreement that if any
action under the laws of any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such rights to be made
available to holders of Receipts in any such jurisdiction, that it will use its
best efforts, to the extent not unduly burdensome in the judgment of the
Company, to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of the rights to enable holders of
Receipts to exercise such rights. Should such distribution not be possible, the
Depositary intends to endeavor to dispose of the rights for the benefit of
holders of Receipts as provided in the Deposit Agreement. Any disposal of rights
may substantially dilute the equity of holders of Receipts. The attention of
holders is especially directed to the provisions of paragraph (13) of the terms
and conditions of this Receipt.
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