AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of , 2006 (the "Amendment") to the Amended and Restated Deposit Agreement dated
as of March 16, 1998 (the "Original Deposit Agreement" and, as so amended,
the
"Deposit Agreement"), among Canon Inc., incorporated under the laws of Japan
(the "Company"), JPMorgan Chase Bank, N.A. (fka Xxxxxx Guaranty Trust Company
of
New York), as depositary (the "Depositary"), and all Holders from time to time
of American Depositary Receipts ("ADRs") issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Original Deposit Agreement for
the
purposes set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in exhibit A of the
Original Deposit Agreement, the Company and the Depositary desire to amend
the
terms of the Original Deposit Agreement and the ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Original
Deposit Agreement and the ADRs as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Original Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. Deposit
Agreement.
All
references in the Original Deposit Agreement to the term "Deposit Agreement"
shall, as of the Effective Date (as herein defined), refer to the Original
Deposit Agreement as amended by this Amendment.
SECTION
2.02. All
references in the Original Deposit Agreement to the Depositary or Xxxxxx
Guaranty Trust Company of New York shall be references to JPMorgan Chase Bank,
N.A.
SECTION
2.03. Section
1
of the Original Deposit Agreement is amended as follows:
| (a) |
Section
1(b) of the Original Deposit Agreement is amended to read as
follows:
|
(b) "ADRs"
mean
the American Depositary Receipts issued hereunder. ADRs may be either in
physical certificated form or Direct Registration ADRs. ADRs in physical
certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the form
set forth in Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
| (b) |
Section
1(j) of the Original Deposit Agreement is amended to read as
follows:
|
(j)
"Stock" means
the
shares of common stock of the Company, and shall include the
rights to receive Stock specified in paragraph (1) of the form of
ADR.
| (c) |
Section
1(l) of the Original Deposit Agreement is amended to read as
follows:
|
(l) "Unit"
means
100 shares 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.
| (d) |
Section
1 of the Original Deposit Agreement is amended to include the following
definitions:
|
|
The
terms "deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or "cancel",
when used with respect to Direct Registration ADRs, shall refer to
an
entry or entries or an electronic transfer or transfers in the Direct
Registration System, and, when used with respect to ADRs in physical
certificated form, shall refer to the physical delivery, execution,
issuance, registration, surrender, transfer or cancellation of
certificates representing the
ADRs.
|
2
|
Direct
Registration System"
means the system for the uncertificated registration of ownership
of
securities established by The Depository Trust Company ("DTC") and
utilized by the Depositary pursuant to which the Depositary may record
the
ownership of ADRs without the issuance of a certificate, which ownership
shall be evidenced by periodic statements issued by the Depositary
to the
Holders entitled thereto. For purposes hereof, the Direct Registration
System shall include access to the Profile Modification System maintained
by DTC which provides for automated transfer of ownership between
DTC and
the Depositary.
|
SECTION
2.04. Section
2
of the Original Deposit Agreement is amended to read as follows:
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at
the discretion of the Depositary in accordance with its customary practices
in
its American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder,
any
applicable law, regulation or usage or to indicate any special limitations
or
restrictions to which any particular ADRs are subject. ADRs may be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the form of ADR to
the
contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the form of ADR, regardless of whether their ADRs are Direct Registration
ADRs or certificated ADRs.
SECTION
2.05. Section
3
of the Original Deposit Agreement is amended to read as
follows:
3
Deposit
of Stock.
In
connection with the deposit of Stock hereunder, the Depositary or the Custodian
may require the following in form satisfactory to it: (a) a written order
directing the Depositary to issue to, or upon the written order of, the person
or persons designated in such order a Direct Registration ADR or ADRs evidencing
the number of ADSs representing such deposited Stock (a "Delivery Order");
(b)
proper endorsements or duly executed instruments of transfer in respect of
such
deposited Stock; (c) instruments assigning to the Custodian or its nominee
any
distribution on or in respect of such deposited Stock or indemnity therefor;
and
(d) proxies entitling the Custodian to vote such deposited Stock. As soon as
practicable after the Custodian receives Deposited Securities pursuant to any
such deposit or pursuant to paragraph (10) or (13) of the form of ADR, the
Custodian shall present such Deposited Securities for registration of transfer
into the name of the Custodian or its nominee, to the extent such registration
is practicable, at the cost and expense of the person making such deposit (or
for whose benefit such deposit is made) and shall obtain evidence satisfactory
to it of such registration. Deposited Securities shall be held by the Custodian
for the account and to the order of the Depositary at such place or places
and
in such manner as the Depositary shall determine. Deposited Securities may
be
delivered by the Custodian to any person only under the circumstances expressly
contemplated in this Deposit Agreement. Stock may be deposited hereunder by
electronic book-entry means, together with delivery of the documents, payments
and Delivery Order referred to herein to the Custodian or the Depositary. Stock
may also be deposited hereunder in connection with the delivery of ADRs to
represent distributions referred to in paragraph (10) of the form of ADR or
upon
exercise of the Rights referred to in paragraph (10) of the form of ADR;
provided, however, that in such event if by operation of applicable provisions
of the Japanese Commercial Code no certificate for any number of Stock issued
upon such distribution or upon such exercise is issuable, such number of Stock
which would form a part of the Deposited Securities in respect of the ADRs
to be
delivered pursuant to paragraph (10) of the form of ADR shall be deemed to
be
deposited hereunder without delivery of such certificate to the Custodian if
such Stock is registered in the name of the Depositary or its nominee on the
books of the Company at the time of the issue of such Stock.
SECTION
2.06. Section
4
of the Original Deposit Agreement is amended by replacing "execute and deliver"
with "properly issue".
SECTION
2.07. Section
6
of the Original Deposit Agreement is amended by inserting the following at
the
end of the last sentence thereof:
,
including, without limitation, by transfer of record ownership thereof to an
account designated in the Withdrawal Order maintained either by the Company
or
an accredited intermediary, such as a bank, acting as a registrar for the
Deposited Securities
SECTION
2.08. Section
7
of the Original Deposit Agreement is amended to read as
follows:
4
Substitution
of ADRs.
The
Depositary shall issue a new Direct Registration ADR in exchange and
substitution for any mutilated certificated ADR upon cancellation thereof or
in
lieu of and in substitution for such destroyed, lost or stolen certificated
ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon the Holder thereof filing with the Depositary a request for
such
execution and delivery and a sufficient indemnity bond and satisfying any other
reasonable requirements imposed by the Depositary.
SECTION
2.09. Section
14 of the Original Deposit Agreement is amended to read as follows:
Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or any securities regulatory authority or stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy thereof in English or with an English translation or summary.
The Company has delivered to the Depositary, the Custodian and any Transfer
Office, a copy of all provisions of or governing the Stock and any other
Deposited Securities issued by the Company or any affiliate of the Company
and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary and its agents
may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
SECTION
2.10. The
address of the Depositary set forth in Section 17(a) of the
Original
Deposit Agreement shall read as follows:
|
JPMorgan
Chase Bank, N.A.
|
|
|
Four
Xxx Xxxx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
ADR Administration
|
|
|
Fax:
(000) 000-0000
|
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01. The
legend on the face of the form of ADR is amended by replacing
"1000"
with "100".
SECTION
3.02. The
initial paragraph of the form of ADR is amended to read as
follows:
5
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America , as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one
share of common stock (including the rights to receive Stock described in
paragraph (1), "Stock" and, together with any other securities, cash or property
from time to time held by the Depositary in respect or in lieu of deposited
Shares, the "Deposited Securities"), of Canon Inc., a corporation organized
under the laws of Japan (the "Company"), deposited under the Amended and
Restated Deposit Agreement dated as of March 16, 1998 (as amended from time
to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State
of
New York.
SECTION
3.02. Paragraph
(2) of the form of ADR is amended to read as follows:
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Upon surrender of
an
ADR or ADRs by a Holder to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese Commercial
Code, the Depositary will effect the delivery to such Holder of only that
portion of Stock (and any other Deposited Securities relating to such Stock)
comprising a Unit or an integral multiple thereof (the "deliverable portion"
of
such ADR or ADRs). As of the date of the Deposit Agreement, a Unit is comprised
of 100 shares of Stock (a "Unit of Shares"). For the purpose of the foregoing
sentence, the deliverable portion shall be determined on the basis of the
aggregate number of shares of Stock represented by the entire amount of the
ADSs
evidenced by the ADR or ADRs surrendered by the same Holder at the same time.
The Depositary will promptly advise such Holder as to the amount of Stock and
Deposited Securities, if any, represented by the non-deliverable portion of
such
ADR or ADRs and shall deliver to such Holder a new ADR evidencing such
non-deliverable portion. In addition, the Depositary shall notify such Holder
of
the additional amount of ADSs which such Holder would be required to surrender
in order for the Depositary to effect delivery of all the Stock and Deposited
Securities represented by the ADSs of such Holder. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
6
SECTION
3.03. Paragraph
(3) of the form of ADR is amended to include the following
sentence
at the conclusion thereof:
At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated ADR with a Direct Registration ADR, or vice versa, issue a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR,
as
the case may be, substituted.
SECTION
3.04. References
in the form of ADR to the "Foreign Exchange and Foreign Trade Control Law of
Japan" shall be references to the "Foreign Exchange and Foreign Trade Law of
Japan".
SECTION
3.05. The
address of the Securities and Exchange Commission set forth in paragraph (8)
of
the form of ADR is amended to "100 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000."
SECTION
3.06. The
last
sentence of paragraph (10) of the form of ADR is amended to read as
follows:
Such
U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
SECTION
3.07. The
address of the Depositary set forth on the bottom portion of the
form
of
ADR is amended to read as follows:
As
of the
date of the Deposit Agreement, the address of the Depositary's Office is 0
Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
7
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and
warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in Japan, neither of such
agreements need to be filed or recorded with any court or other authority in
Japan, nor does any stamp or similar tax or governmental charge need to be
paid
in Japan on or in respect of such agreements; and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated, and shall be effective, as of the date set forth above
(the
"Effective Date").
SECTION
5.02. Outstanding
Receipts.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby (as set forth in Exhibit A hereto), need
not
be called in for exchange.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Original Deposit Agreement in connection with
any and all liability it or they may incur as a result of the terms of this
Amendment and the transactions contemplated herein.
8
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
By:_________________________
| Name: |
|
|
Title:
|
JPMORGAN
CHASE BANK, N.A.
By:_________________________
| Name: |
|
|
Title:
Vice President
|
9
Exhibit
A
[FORM
OF
FACE OF RECEIPT]
|
____
Number
|
No. of ADSs:
Each ADS represents
one share of Stock
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES
OF
COMMON STOCK
of
(Incorporated
under the
laws
of
Japan)
THE
RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6)
AND
(12) BELOW. PURSUANT TO THE COMMERCIAL CODE OF JAPAN AND TO CANON'S ARTICLES
OF
INCORPORATION, THE RELEASE OF THE SHARES OF STOCK OF CANON INC. UNDERLYING
THE
ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A UNIT OF 100 SUCH SHARES OF
STOCK (OR SUCH OTHER NUMBER OF SHARES OF STOCK AS THE ARTICLES OF INCORPORATION
MAY FROM TIME TO TIME DESIGNATE AS A "UNIT OF SHARES") OR INTEGRAL MULTIPLES
THEREOF.
1
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America , as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one
share of common stock (including the rights to receive Stock described in
paragraph (1), "Stock" and, together with any other securities, cash or property
from time to time held by the Depositary in respect or in lieu of deposited
Shares, the "Deposited Securities"), of Canon Inc., a corporation organized
under the laws of Japan (the "Company"), deposited under the Amended and
Restated Deposit Agreement dated as of March 16, 1998 (as amended from time
to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State
of
New York.
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Stock
in form satisfactory to the Custodian; (b) rights to receive Stock from the
Company or any registrar, transfer agent, clearing agent or other entity acting
on behalf of the Company recording Share ownership or transactions; or, (c)
other rights to receive Stock (until such Stock is actually deposited pursuant
to (a) or (b) above, ADRs issued pursuant to this clause (c) shall be referred
to as "Pre-released ADRs") only if (i) Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of Holders (but such collateral shall
not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
agrees in writing with the Depositary that such recipient (a) owns such Stock,
(b) assigns all beneficial right, title and interest therein to the Depositary,
(c) holds such Stock for the account of the Depositary and (d) will deliver
such
Stock to the Custodian as soon as practicable and promptly upon demand therefor
and (iii) all Pre-released ADRs evidence not more than 20% of all ADSs
(excluding those evidenced by Pre-released ADRs), except to the extent that
the
Depositary (in its sole discretion) determines that unusual market conditions
require the issuance of Pre-released ADRs in addition to 20% of all such ADSs.
The Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and its charges for issuance thereof. At the request, risk
and
expense of the person depositing Stock, the Depositary may accept deposits
for
forwarding to the Custodian and may deliver ADRs at a place other than its
office. No Stock shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that it is owned by a non-resident of Japan.
Every person depositing Stock under the Deposit Agreement represents and
warrants that such Stock is validly issued and outstanding, fully paid,
nonassessable and free of pre-emptive rights, the person making such deposit
is
duly authorized so to do and that such Stock is not "restricted securities"
as
such term is defined in Rule 144 under the Securities Act of 1933 and that
such
Stock is owned by a non-resident of Japan. Such representations and warranties
shall survive the deposit of Stock and issuance of ADRs. The Depositary will
not
knowingly accept for deposit under the Deposit Agreement any Stock required
to
be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Stock or rights to receive
such Stock identified by the Company in order to facilitate the Company's
compliance with such Act.
2
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Upon surrender of
an
ADR or ADRs by a Holder to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese Commercial
Code, the Depositary will effect the delivery to such Holder of only that
portion of Stock (and any other Deposited Securities relating to such Stock)
comprising a Unit or an integral multiple thereof (the "deliverable portion"
of
such ADR or ADRs). As of the date of the Deposit Agreement, a Unit is comprised
of 100 shares of Stock (a "Unit of Shares"). For the purpose of the foregoing
sentence, the deliverable portion shall be determined on the basis of the
aggregate number of shares of Stock represented by the entire amount of the
ADSs
evidenced by the ADR or ADRs surrendered by the same Holder at the same time.
The Depositary will promptly advise such Holder as to the amount of Stock and
Deposited Securities, if any, represented by the non-deliverable portion of
such
ADR or ADRs and shall deliver to such Holder a new ADR evidencing such
non-deliverable portion. In addition, the Depositary shall notify such Holder
of
the additional amount of ADSs which such Holder would be required to surrender
in order for the Depositary to effect delivery of all the Stock and Deposited
Securities represented by the ADSs of such Holder. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, and registration of
transfer, combination and split-up, of ADRs, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. Title to this ADR (and to the Deposited Securities represented
by the ADSs evidenced hereby), when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as
in
the case of negotiable instruments under the laws of the State of New York;
provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced
by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender
of
this ADR at the Transfer Office properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, issue a certificated ADR or a Direct
Registration ADR, as the case may be, for any authorized number of ADSs
requested, evidencing the same aggregate number of ADSs as those evidenced
by
the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
3
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Stock or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law (including, without
limitation, the Foreign Exchange and Foreign Trade Law of Japan), regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. No Stock shall be accepted for deposit unless accompanied
by
evidence satisfactory to the Depositary that it is owned by a non-resident
of
Japan. The issuance of ADRs or the acceptance of deposits of Stock may be
refused, the registration, registration of transfer, split-up or combination
of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or
when
any such action is deemed advisable by the Depositary or the
Company.
4
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Stock. In connection with any distribution to Holders, the Company
will remit to the appropriate governmental authority or agency all amounts
(if
any) required to be withheld and owing to such authority or agency by the
Company; and the Depositary and the Custodian will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Depositary or the Custodian. If
the
Depositary determines that any distribution in property other than cash
(including Stock or rights) on Deposited Securities is subject to any tax that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto. The Depositary will forward to the Company in
a
timely fashion such information from its records as the Company may reasonably
request to enable the Company to file necessary reports with governmental
authorities or agencies, and either the Company or the Depositary may file
any
such reports necessary to obtain benefits under any applicable tax treaties
for
Holders.
(6)
Disclosure
of Beneficial Ownership. (a) Without
prejudice to the requirements of applicable law concerning disclosure of
beneficial ownership of shares of Stock, any Beneficial Owner (as defined below)
of ADSs who becomes, or ceases to be, directly or indirectly, the Beneficial
Owner of more than 5% of all outstanding shares of Stock (whether such interest
is held in whole or only in part through ADRs) shall, within five days
(excluding Saturdays, Sundays and legal holidays in Japan) following such event,
send written notice to the Depositary at its Transfer Office and to the Company
at its principal office in Japan at 00-0, Xxxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx
000, Xxxxx containing the following information:
(i) the
name,
address and nationality of such Beneficial Owner and all other persons by whom
or on whose behalf such shares of Stock have been acquired or are held; the
number of ADSs and total shares of Stock (including ADSs) beneficially owned,
directly or indirectly, by such Beneficial Owner immediately before and
immediately after the event requiring notification; the names and addresses
of
any persons other than the Depositary, the Custodian, or either of their
nominees, through whom such beneficially owned shares of Stock are held, or
in
whose name such shares of Stock are registered in the Company's share register,
and the respective numbers of shares of Stock beneficially held through each
such person; the date or dates of acquisition of the beneficial interest in
such
shares of Stock; and the number of any shares of Stock in which such Beneficial
Owner has the right to acquire, directly or indirectly, beneficial ownership
and
material information as to such right(s) of acquisition; and
5
(ii) the
names, addresses and nationalities of any persons with whom such Beneficial
Owner is acting as a partnership, limited partnership, syndicate or other group
for the purpose of acquiring, holding, voting or disposing of a beneficial
interest in shares of Stock; and the number of shares of Stock being acquired,
held, voted or disposed of as a result of such association (being the total
number held by such group).
Any
Beneficial Owner of more than 5% of all outstanding shares of Stock shall
promptly notify the Depositary and the Company as provided above of any material
change in the information previously notified, including, without limitation,
a
change of more than 1% of the percentage of total shares of Stock to which
the
beneficial ownership relates.
As
used
herein, the "Beneficial Owner" of shares of Stock means a person who, directly
or indirectly, through any contract, trust, arrangement, understanding,
relationship, or otherwise, has an interest in any shares of Stock, including
any shares of Stock which underlie any ADS issued hereunder (including having
the right to exercise or control the exercise of any right conferred by the
holding of such shares of Stock or the power to vote or to direct voting or
the
power to dispose or to direct disposition), and includes any Holder of an
ADS.
(b) Without
prejudice to the requirements of applicable law and the provisions of the
Company's Articles of Incorporation, any Beneficial Owner of shares of Stock
shall, if so requested in writing by the Company, provide such information
with
respect to the beneficial ownership of shares of Stock (including not only
shares of Stock underlying ADSs, but also any other shares of Stock in which
such Beneficial Owner has an interest and including any security convertible
into, exchangeable for or exercisable for shares of Stock) by such Beneficial
Owner as is requested by the Company. Such Beneficial Owner shall provide such
information to the Company in writing within the time specified by the Company.
Copies of any such request and responses shall be contemporaneously sent to
the
Depositary at its Transfer Office.
(c) If
the
Company notifies the Depositary in writing that a particular Beneficial Owner
has not complied with subsections (a) or (b) above, the Depositary shall use
reasonable efforts not to vote or cause to be voted any shares of Stock held
by
it or any Custodian as to which such Beneficial Owner of such shares of Stock
shall have failed to comply with the provisions of subsections (a) or (b) above
but only to the extent that such Beneficial Owner is the Beneficial Owner of
an
ADR or ADRs.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued against deposits
of
Stock, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADRs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered.
The Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The Company will pay
all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing Stock),
(ii) cable, telex and facsimile transmission and delivery charges incurred
at
the request of persons depositing, or Holders delivering, Stock, ADRs or
Deposited Securities (which are payable by such persons or Holders), (iii)
transfer or registration fees for the registration of transfer of Deposited
Securities on any applicable register in connection with the deposit or
withdrawal of Deposited Securities (which are payable by persons depositing
Stock or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Stock as of the date of the Deposit Agreement) and (iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which are paid out of such foreign currency). These charges may
be
changed in the manner indicated in paragraph (16).
6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will mail copies of such communications (or
English translations or summaries thereof) to Holders when furnished by the
Company. The Company agrees to furnish to the Depositary, and the Depositary
will, at the Company's expense, arrange for mailing to all Holders of ADRs
(1)
promptly after the end of the first six-month accounting period in each fiscal
year, a semiannual report in the English language which shall include a
consolidated balance sheet and statement of income (which need not be audited)
for the Company as at the end of and for such six-month period, all in
reasonable detail and (2) promptly after the end of each fiscal year, an annual
report in the English language which shall include consolidated balance sheet
and statement of income for the Company as at the end of and for such year,
all
in reasonable detail and certified by independent public accountants. All such
interim and year-end statements shall be prepared in accordance with accounting
principles generally accepted in the United States applied on a basis consistent
with those used in the preparation of the financial statements in registration
statements filed by the Company under the Securities Act of 1933 relating to
shares of Stock (except to the extent exceptions from such accounting principles
are permitted in periodic reports filed by the Company with the Securities
and
Exchange Commission). The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the Commission. Such reports and other information may
be
inspected and copied at public reference facilities maintained by the Commission
located at the date of the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx,
XX
00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
|
By
.................................................
|
|
|
Authorized
Officer
|
As
of the
date of the Deposit Agreement, the address of the Depositary's Office is 0
Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute by mail to each Holder entitled thereto on the record date set by
the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to appropriate adjustments for (i) taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Stock.
(i)
Additional ADRs evidencing whole ADSs representing any Stock available to the
Depositary resulting from a stock split on Deposited Securities consisting
of
Stock (a "Share Distribution") and (ii) U.S. dollars available to it resulting
from the net proceeds of sales of Stock received in a Share Distribution, which
Stock would give rise to fractional ADSs if additional ADRs were issued
therefor, as in the case of Cash. In connection with any sale of Stock hereunder
by the Depositary, the Company shall purchase such portion of such amount of
shares of Stock which is insufficient in number to constitute a full Unit of
Shares in accordance with the applicable provisions of the Japanese Commercial
Code and its Share Handling Regulations. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Stock or rights of any nature available to the Depositary as a result
of a distribution on Deposited Securities ("Rights"), to the extent that the
Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute same under the Securities
Act of 1933 and any other applicable law (the Company has no obligation to
so
furnish such evidence), or (ii) to the extent the Company does not so furnish
such evidence and sales of Rights are practicable, any U.S. dollars available
to
the Depositary from the net proceeds of sales of Rights as in the case of Cash,
or (iii) to the extent the Company does not so furnish such evidence and such
sales cannot practicably be accomplished by reason of the nontransferability
of
the Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse). 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. (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional cents will be withheld without liability and dealt with by
the
Depositary in accordance with its then current practices.
8
(11)
Record
Dates.
The
Depositary may, after consultation with the Company, if practicable, fix a
record date (which shall be as near as practicable to any corresponding record
date set by the Company) for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters, and only Holders of record as
of
the close of business on such record date shall be so entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Stock or other Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials in
English, (b) that each Holder on the record date set by the Depositary therefor
will be entitled to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by the ADSs
evidenced by such Holder's ADRs and (c) the manner in which such instructions
may be given, including instructions (or deemed instructions in accordance
with
the third following sentence in this paragraph) to give a discretionary proxy
to
a person designated by the Company. Upon receipt of instructions of a Holder
on
such record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted (or to grant a discretionary proxy
to a
person designated by the Company to vote) the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs in accordance with such
instructions. The Depositary will not itself exercise any voting discretion
in
respect of any Deposited Securities. To the extent such instructions are not
so
received by the Depositary from any Holder, the Depositary shall deem such
Holder to have so instructed the Depositary to give a discretionary proxy to
a
person designated by the Company and the Depositary shall endeavor insofar
as
practicable and permitted under the provisions of or governing Deposited
Securities to give a discretionary proxy to a person designated by the Company
to vote the Deposited Securities represented by the ADSs evidenced by such
Holder's ADRs as to which such instructions are so given; provided
that no
such instruction shall be deemed given and no such discretionary proxy shall
be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information promptly in writing) that
(x) the Company does not wish such proxy given, (y) substantial opposition
exists to such matter or (z) such matter materially affects the rights of
holders of Shares. Under the Commercial Code of Japan, votes may only be cast
in
respect of a Unit of Shares. Instructions received from all Holders shall be
aggregated and the Depositary shall endeavor insofar as is practicable to vote
or cause to be voted, the number of whole Units in respect of which instructions
have been received, in accordance with such instructions. After aggregation
of
all instructions, the votes remaining which constitute less than a whole Unit
of
Shares with respect to any particular instruction shall remain
uncast.
9
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR, after consultation with the Company to the extent practicable, or
distribute additional or amended ADRs (with or without calling this ADR for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to
Holders
or any cash, securities or property available to the Depositary in respect
of
Deposited Securities from (and the Depositary is hereby authorized to surrender
any Deposited Securities to any person and to sell by public or private sale
any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted. The Company agrees
that it shall give notice to Holders of ADRs of any amendment to its Articles
of
Incorporation changing the number of shares of Stock previously designated
as a
Unit 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 Holders
of
ADRs of such amendment at least two weeks prior to the effectiveness of such
amendment.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Security, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of
the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Stock for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, the Company, their agents and each
of them may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to
have
been signed or presented by the proper party or parties. The Depositary and
its
agents will not be responsible for any failure to carry out any instructions
to
vote any of the Deposited Securities, for the manner in which any such vote
is
cast or for the effect of any such vote. The Depositary and its agents may
own
and deal in any class of securities of the Company and its affiliates and in
ADRs. The Company has agreed to indemnify the Depositary and its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
against losses incurred by the Company to the extent such losses are due to
the
negligence or bad faith of the Depositary or its agents hereunder (acting as
such). No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians
and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
10
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to this Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
(17)
Termination.
The
Depositary shall at the written direction of the Company terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may terminate the Deposit Agreement after giving the notice set
forth
in the preceding sentence of this paragraph (17) at any time after 45 days
has
elapsed after the Depositary shall have delivered to the Company its written
resignation, provided
that no
successor depositary shall have been appointed and accepted its appointment
as
provided in Section 13 of the Deposit Agreement before the end of such 45 days.
After the date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit Agreement and this ADR, except to
advise Holders of such termination, receive and hold (or sell) distributions
on
Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account
the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the
pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under this Deposit Agreement except for its obligations to
the
Depositary and its agents.
11
