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KAO CORPORATION
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of March , 2004
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TABLE OF CONTENTS
Page
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PARTIES......................................................................... 1
RECITALS........................................................................ 1
Section 1. Certain Definitions
(a) ADR Register......................................... 1
(b) ADRs; Direct Registration ADRs....................... 1
(c) ADS.................................................. 1
(d) Custodian............................................ 1
(e) Deliver, execute, issue et al........................ 1
(f) Delivery Order....................................... 1
(g) Deposited Securities................................. 1
(h) Direct Registration System........................... 1
(i) Holder............................................... 2
(j) Securities Act of 1933............................... 2
(k) Securities Exchange Act of 1934...................... 2
(l) Shares............................................... 2
(m) Transfer Office...................................... 2
(n) Unit................................................. 2
(o) Withdrawal Order..................................... 2
Section 2. ADRs.......................................................... 2
Section 3. Deposit of Shares............................................. 3
Section 4. Issue of ADRs................................................. 3
Section 5. Distributions on Deposited Securities......................... 3
Section 6. Withdrawal of Deposited Securities............................ 3
Section 7. Substitution of ADRs.......................................... 4
Section 8. Cancellation and Destruction of ADRs.......................... 4
Section 9. The Custodian................................................. 4
Section 10. Co-Registrars and Co-Transfer Agents.......................... 4
Section 11. Lists of Holders. ............................................ 5
Section 12. Depositary's Agents........................................... 5
Section 13. Successor Depositary.......................................... 5
Section 14. Reports....................................................... 5
Section 15. Additional Shares............................................. 5
Section 16. Indemnification............................................... 5
Section 17. Notices....................................................... 7
Section 18. Miscellaneous................................................. 7
TESTIMONIUM..................................................................... 8
SIGNATURES...................................................................... 8
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Page
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EXHIBIT A
FORM OF FACE OF ADR............................................................... A-1
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Introductory Paragraph................................................... A-1
(1) Issuance of ADRs.............................................. A-2
(2) Withdrawal of Deposited Securities............................ A-2
(3) Transfers of ADRs............................................. A-3
(4) Certain Limitations........................................... A-4
(5) Taxes......................................................... A-4
(6) Disclosure of Interests....................................... A-5
(7) Charges of Depositary......................................... A-6
(8) Available Information......................................... A-7
(9) Execution..................................................... A-7
Signature of Depositary.................................................. A-7
Address of Depositary's Office .......................................... A-7
FORM OF REVERSE OF ADR............................................................ A-8
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(10) Distributions on Deposited Securities......................... A-8
(11) Record Dates.................................................. A-9
(12) Voting of Deposited Securities................................ A-9
(13) Changes Affecting Deposited Securities........................ A-9
(14) Exoneration.................................................. A-10
(15) Resignation and Removal of Depositary; the Custodian......... A-10
(16) Amendment.................................................... A-11
(17) Termination.................................................. A-11
(18) Unit......................................................... A-11
- ii -
DEPOSIT AGREEMENT dated as of March , 2004 (the "Deposit Agreement")
among KAO CORPORATION and its successors (the "Company"), JPMORGAN CHASE BANK,
as depositary hereunder (the "Depositary"), and all holders from time to time of
American Depositary Receipts issued hereunder ("ADRs") evidencing American
Depositary Shares ("ADSs") representing deposited Shares (defined below). The
parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
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 of 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.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive ten Shares and a pro rata share in any
other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) 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.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "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.
(i) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the shares of common stock of the Company and shall
include the rights to receive Shares specified in paragraph (1) of the form of
ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Unit" means 1,000 Shares or such other number of Shares 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.
(o) "Withdrawal Order" is defined in Section 6.
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.
2
3. Deposit of Shares. In connection with the deposit of Shares
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 Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. 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. To the extent that the provisions of or governing the
Shares make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably accept, including, without limitation, by causing them to be
credited to an account maintained by the Custodian for such purpose with the
Company or an accredited intermediary, such as a bank, acting as a registrar for
the Shares, together with delivery of the documents, payments and Delivery Order
referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the
3
Deposited Securities represented by the ADSs evidenced by such ADR to be
withdrawn and delivered to, or upon the written order of, any person designated
in such order (a "Withdrawal Order"). Directions from the Depositary to the
Custodian to deliver Deposited Securities shall be given by letter, first class
airmail postage prepaid, or, at the request, risk and expense of the Holder, by
cable, telex or facsimile transmission. Delivery of 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
or, if such certificates may be registered, registered in the name of such
Holder or as ordered by such Holder in any Withdrawal Order) or by such other
means as the Depositary may deem practicable, 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.
7. Substitution of ADRs. The Depositary shall execute and deliver 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.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than JPMorgan Chase
Bank) shall give written notice to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary. The Depositary may discharge any Custodian at any time
upon notice to the Custodian being discharged. Any Custodian ceasing to act
hereunder as Custodian shall deliver, upon the instruction of the Depositary,
all Deposited Securities held by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
4
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. 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. The Depositary may at any time be removed by the Company by written
notice of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement pursuant to paragraph (17) of the form of ADR. Any bank
or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
14. Reports. As soon as possible after 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 Shares 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.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable commercial efforts to comply with written instructions of the
Company not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with securities laws in the United States.
16. Indemnification. Subject to the fourth paragraph of this Section
16, the Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss,
5
liability or expense (including reasonable fees and expenses of counsel) which
may arise out of acts performed or omitted, in accordance with the provisions of
this Deposit Agreement and of the ADRs, as the same may be amended, modified or
supplemented from time to time in accordance herewith, (i) by either the
Depositary or its agents acting hereunder or their respective officers,
directors, employees, agents and affiliates, except for any loss, liability or
expense directly arising out of the negligence or bad faith of such person or
entity, or (ii) by the Company or any of its officers, directors, employees,
agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
Subject to the next succeeding paragraph, the Depositary shall
indemnify, defend and save harmless the Company against any loss, liability or
expense (including reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted by the Depositary, its agents or their respective
officers, directors, employees, agents and affiliates, in each case acting
hereunder, in accordance with the provisions of this Deposit Agreement and of
the ADRs, as the same may be amended, modified or supplemented from time to time
in accordance herewith, but only to the extent such such loss, liability or
expense is due to the negligence or bad faith of the Depositary, or any of its
officers, directors, employees, agents or affiliates acting hereunder.
Notwithstanding any other provision of this Deposit Agreement or the
form of ADR to the contrary, neither the Company nor the Depositary, nor any of
their agents, shall be liable to the other for any indirect, special, punitive
or consequential damages (collectively "Special Damages") except (i) to the
extent such Special Damages arise from the fraud, gross negligence or willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Holders) against the Depositary or its agents,
except to the extent such Special Damages arise out of the fraud, gross
negligence or willful misconduct of the party seeking indemnification hereunder
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim, which such defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle any
such action or claim without the consent in writing of the Indemnifying Person,
which consent shall not be unreasonably withheld or delayed.
6
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx (00xx Xxxxx)
New York, New York 10004
Attention: ADR Administration
Fax: (000) 000-0000
(b) Kao Corporation
14-10, Nihonbashi Xxxxxxxxx 0-xxxxx
Xxxx-xx, Xxxxx 000-0000
Xxxxx
Attention: Legal Department
Fax: 00-0-0000-0000
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, KAO CORPORATION and JPMORGAN CHASE BANK have duly
executed this Deposit Agreement as of the day and year first above set forth and
all holders of ADRs shall become parties hereto upon acceptance by them of ADRs
issued in accordance with the terms hereof.
KAO CORPORATION
By:
-------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
------------------------------------------
Name:
Title: Vice President
8
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
--------
Number
--------------
Each ADS represents
10 Shares
CUSIP:
THE RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE COMMERCIAL CODE OF
JAPAN AND TO THE COMPANY'S ARTICLES OF INCORPORATION, THE RELEASE OF THE SHARES
UNDERLYING THE ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A UNIT OF 1,000
SUCH SHARES (OR SUCH OTHER NUMBER OF SHARES AS THE ARTICLES OF INCORPORATION MAY
FROM TIME TO TIME DESIGNATE AS A "UNIT OF SHARES") OR INTEGRAL MULTIPLES
THEREOF.
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
SHARES OF COMMON STOCK
of
KAO CORPORATION
(Incorporated under the laws of Japan)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that is the registered owner (a
"Holder") of American Depositary Shares ("ADSs"), each (subject to
paragraph (13)) representing ten shares of common stock (including the rights to
receive Shares described in paragraph (1), "Shares" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Shares, the "Deposited Securities"), of KAO CORPORATION,
a
A-1
corporation organized under the laws of Japan (the "Company"), deposited under
the Deposit Agreement dated as of March , 2004 (as amended from time to time,
the "Deposit Agreement") among the Company, the Depositary and all Holders from
time to time of American Depositary Receipts issued thereunder ("ADRs"), each of
whom by accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR (which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the case
of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian's office of the Deposited Securities at the time represented by the
ADSs evidenced by this ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other place
as may have been requested by the Holder. Upon surrender of an ADR or ADRs by a
Holder to the
A-2
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 Shares (and any other
Deposited Securities relating to such Shares) comprising a Unit or an integral
multiple thereof (the "deliverable portion" of such ADR or ADRs). As of the date
of the Deposit Agreement, a Unit is comprised of 1,000 Shares. For the purpose
of the foregoing sentence, the deliverable portion shall be determined on the
basis of the aggregate number of Shares represented by the entire amount of the
ADSs evidenced by the ADR or ADRs surrendered by the same Holder at the same
time. The Depositary will promptly advise such Holder as to the number of Shares
and Deposited Securities, if any, represented by the non- deliverable portion of
such ADR or ADRs and shall deliver to such Holder a new ADR evidencing such
non-deliverable portion. In addition, the Depositary shall notify such Holder of
the additional amount of ADSs which such Holder would be required to surrender
in order for the Depositary to effect delivery of all the Shares and Deposited
Securities represented by the ADSs of such Holder. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
A-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 Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law (including, without limitation, the
Foreign Exchange and Foreign Trade Law of Japan), regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. The Depositary shall, and shall instruct the
Custodian to, forward to the Company or its agent such information from its or
the Custodian's records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental authorities or
agencies. If the Depositary determines that any distribution in property other
than cash (including Shares 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
A-4
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 or its agent will make
reasonable efforts to submit two Application Forms for Income Tax Convention, or
successor forms, as required by Japanese tax laws, to enable Holders to receive
a reduced rate of Japanese withholding tax on dividends or other benefits under
the income tax treaty between the United States and Japan and any other Japanese
tax laws with respect to (a) dividends and other distributions on Deposited
Securities and (b) dispositions of Deposited Securities. Holders may be required
from time to time to file proof of such Holders' country of tax residence, or to
make representations or provide other information or documents requested by the
Depositary. The Holders and Beneficial Owners (as defined in Paragraph (6)
below) may be asked by the Company, the Depositary and/or the Custodian to
indemnify it and its respective directors, employees and agents against, and
hold each of them harmless from, any claims by any governmental authority with
respect to taxes, addition to tax, penalties or interest arising out of the
inaccuracy of any information provided by such Holder and/or Beneficial Owner in
order to obtain any refund of taxes, reduced rate of withholding at source or
other tax benefit on behalf of such Holder and/or Beneficial Owner.
(6) Disclosure of Interests. (a) Without prejudice to the requirements of
applicable law concerning disclosure of beneficial ownership of Shares, any
Beneficial Owner (as defined below) of ADSs who becomes, or ceases to be,
directly or indirectly, the Beneficial Owner of more than 5% of all outstanding
Shares (whether such interest is held in whole or only in part through ADRs)
shall, within five days (excluding Saturdays, Sundays and legal holidays in
Japan) following such event, send written notice to the Depositary at its
Transfer Office and to the Company at its principal office in Japan at 14-10,
Nihonbashi Xxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx 000-0000, Xxxxx containing the
following information:
(i) the name, address and nationality of such Beneficial Owner
and all other persons by whom or on whose behalf such Shares have been
acquired or are held; the number of ADSs and total Shares (including ADSs)
beneficially owned, directly or indirectly, by such Beneficial Owner
immediately before and immediately after the event requiring notification;
the names and addresses of any persons other than the Depositary, the
Custodian, or either of their nominees, through whom such beneficially
owned Shares are held, or in whose name such Shares are registered in the
Company's shareholders' register, and the respective numbers of Shares
beneficially held through each such person; the date or dates of
acquisition of the beneficial interest in such Shares; and the number of
any Shares in which such Beneficial Owner has the right to acquire,
directly or indirectly, beneficial ownership and material information as to
such right(s) of acquisition; and
(ii) the names, addresses and nationalities of any persons
with whom such Beneficial Owner is acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring,
holding, voting or disposing of a beneficial interest in Shares; and the
number of Shares being acquired, held, voted or disposed of as a result of
such association (being the total number held by such group).
A-5
Any Beneficial Owner of more than 5% of all outstanding Shares shall
promptly notify the Depositary and the Company as provided above of any material
change in the information previously notified, including, without limitation, a
change of more than 1% of the percentage of total Shares to which the beneficial
ownership relates.
As used herein, the "Beneficial Owner" of shares of Stock means a
person who, directly or indirectly, through any contract, trust, arrangement,
understanding, relationship, or otherwise, has an interest in any Shares,
including any Shares which underlie any ADS issued hereunder (including having
the right to exercise or control the exercise of any right conferred by the
holding of such Shares or the power to vote or to direct voting or the power to
dispose or to direct disposition), and includes any Holder of an ADS.
(b) Without prejudice to the requirements of applicable law and the
provisions of the Company's Articles of Incorporation, any Beneficial Owner of
Shares shall, if so requested in writing by the Company, provide such
information with respect to the beneficial ownership of Shares (including not
only Shares underlying ADSs, but also any other Shares in which such Beneficial
Owner has an interest and including any security convertible into, exchangeable
for or exercisable for Shares) by such Beneficial Owner as is requested by the
Company. Such Beneficial Owner shall provide such information to the Company in
writing within the time specified by the Company. Copies of any such request and
responses shall be contemporaneously sent to the Depositary at its Transfer
Office.
(c) If the Company notifies the Depositary in writing that a particular
Beneficial Owner has not complied with subsections (a) or (b) above, the
Depositary shall use reasonable efforts not to vote or cause to be voted any
Shares held by it or any Custodian as to which such Beneficial Owner of such
Shares shall have failed to comply with the provisions of subsections (a) or (b)
above but only to the extent that such Beneficial Owner is the Beneficial Owner
of an ADR or ADRs.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADSs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs are issued (including, without limitation, issuance pursuant to a stock
dividend or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is applicable (i) to the extent not
prohibited by the rules of any stock exchange or interdealer quotation system
upon which the ADSs are traded a fee of $.02 or less per ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement, (ii)
to the extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are traded, a fee of $1.50 per ADR or ADRs
for transfers made pursuant to paragraph (3) hereof and (iii) a fee for the
distribution of securities pursuant to paragraph (10) hereof, such fee being in
an amount equal to the fee for the execution and delivery of ADSs referred to
above
A-6
which would have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating all such securities as if they were
Shares) but which securities or the net cash proceeds from the sale thereof are
instead distributed by the Depositary to Holders entitled thereto. The Company
will pay all other charges and expenses of the Depositary and any agent of the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company and the Depositary, except (i) stock transfer or other taxes
and other governmental charges (which are payable by Holders or persons
depositing Shares), (ii) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration of transfer
of Deposited Securities on any applicable register in connection with the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares or Holders withdrawing Deposited Securities; there are no such
fees in respect of the Shares as of the date of the Deposit Agreement), (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency)and (v) such fees
and expenses as are incurred by the Depositary (including without limitation
expenses incurred on behalf of Holders in connection with compliance with
foreign exchange control regulations or any law or regulation relating to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company furnishes the United States
Securities and Exchange Commission (the "Commission") with certain public
reports and documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Securities Exchange Act of 1934. Such reports and documents may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of the Deposit Agreement at Judiciary Plaza, 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ..................................
Authorized Officer
The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
A-7
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute by mail to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
A-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
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Stock or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given. 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, insofar as practicable and
permitted under applicable law and the provisions of the Articles of
Incorporation and Share Handling Regulations of the Company and the provisions
of or governing Deposited Securities, through the appropriate channels and in a
timely manner, vote or cause to be voted the Deposited Securities represented by
the ADSs evidenced by such Holder's ADRs in accordance with such instructions.
The Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
To the extent such instructions are not so received by the Depositary from
any Holder, the Depositary shall 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, insofar as practicable and permitted under the
provisions of or governing the Deposited Securities, 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 deemed to have been so given, provided that no such instruction
shall be deemed given and no discretionary proxy shall be given with respect to
any matter (x) if the Company does not wish such proxy to be given, (y) if there
is substantial opposition to such matter or (z) if such matter materially
adversely affects the rights of holders of Shares.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described in the paragraph above in time to
ensure that the Depositary will vote the Stock or Deposited Securities in
accordance with the provisions set forth in the preceding paragraph.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any 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
A-9
surrender any Deposited Securities to any person and to sell by public or
private sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or bad faith; (c) in the
case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, the Company and their respective
agents acting hereunder 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.
Regardless of its responsibilities in paragraph (12), 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, provided that any such action or nonaction is in good faith, 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 under certain circumstances. In no event shall
the Depositary, the Company or any of their agents be liable to any Holder or
other third party for any indirect, special, punitive or consequential damages.
No disclaimer of liability under the Securities Act of 1933 is intended by any
provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary. The Depositary may appoint substitute
or additional Custodians and the term "Custodian" refers to each Custodian or
all Custodians as the context requires.
A-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 the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
(18) Change in Unit. The Company agrees that it shall give notice to
Holders of ADRs of any amendment to its Articles of Incorporation changing the
number of Shares previously designated as a Unit as soon as practicable but no
later than two weeks after the adoption of a shareholders' resolution giving
effect to such change in Unit.
A-11
