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EXHIBIT 10.4
(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
FORM OF
AGREEMENT ON GRANT OF SUBSCRIPTION RIGHTS OF NEW SHARES
Jupiter Telecommunications Co., Ltd. (hereinafter referred to as "A") and
____________ (hereinafter referred to as "B") hereby agree as follows as to the
grant of subscription rights based on the resolutions of A's shareholders'
meeting on August 23, 2000 and A's board of directors' meeting on the same day.
Article 1 (Grant of Subscription Rights)
1. On September 11, 2000, A shall grant B subscription rights of new
shares with specifics as follows (hereinafter referred to as "the
Subscription Rights").
(1) Distinction between par value shares and non-par value shares, as
well as the type of the shares to be issued:
Common non-par value shares issued by A (hereinafter referred to
as the "Shares")
(2) Number of shares to be issued (hereinafter referred to as "number
of shares granted"):
___ shares
(3) Issue price per share:
276,000 yen per share
(4) Exercise period:
The exercise period shall be from September 11,
2000 to August 23, 2010, provided, however, that the
Subscription Rights shall be exercisable only when A's
stock certificates have been registered with the Japan
Securities Dealers Association or listed on any of the
stock exchanges, and, further provided, that for the
period between September 11, 2000 and September 11,
2001, the Subscription Rights shall be exercisable only
when the provisions under Article 2, Paragraph 2, Item 3
are applicable.
2. In any of the following cases, the specifics of the
Subscription Rights shall be adjusted, restricted or invalidated,
subject to the provisions in the attachment.
(1) When A's stocks become subject to stock split (including
capitalization of profits available for dividend payments or
capital reserve; the same applies hereinafter) or reverse stock
split.
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(2) When A issues new shares (except for the cases of conversion of
convertible bonds and the exercise of the rights under the
subscription certificate of new shares and Subscription Rights
pursuant to Article 280-19 of the Commercial Code) at a price
below the market value (however, prior to the public offering of
A's shares, this provision shall apply by substituting the
market price with the unadjusted issue price at the time).
(3) When A issues the securities convertible to stock or the
securities with the rights to subscribe new shares at a price
below the market price (however, prior to the public offering of
A's shares, this provision shall apply by substituting the
market price with the unadjusted issue price at the time).
(4) When A merges with any other company or a new company
incorporated for consolidation, or implements a stock swap or
stock transfer, or if any other adjustments become necessary.
Article 2 (Number of Shares on Which the Subscription Rights are Exercisable by
Different Exercise Period)
1. When A's stocks have been registered with the Japan Securities
Dealers Association or have been listed on any of the stock
exchanges, B's Subscription Rights shall become exercisable after
September 12, 2002 and B may exercise the number of Shares granted in
whole or in part on and after that date.
2. The provisions of the preceding Paragraph shall not apply in the
following cases and the Subscription Rights shall become exercisable
after September 12, 2001 under Item 1 or Item 2, and immediately
under Item 3.
(1) Article 6 Paragraph 3 (long-continued disease, etc.) or Article
6, Paragraph 4 (retirement under the age limit),
(2) B dies and the Subscription Rights are inherited under Article
7, Paragraph 1, or
(3) The board of directors of A determines that the total number of
shares owned, directly or indirectly, by corporate groups each
of which owns, directly or indirectly, twenty percent (20%) or
more of the outstanding shares of A as of the date hereof falls
below one third of the then outstanding shares of A and that it
is appropriate not to apply the provisions of the preceding
Paragraph, and B is notified to that effect.
Article 3 (Exercise of the Subscription Rights)
1. The Subscription Rights may be exercised for an integral multiple of
the number of one share.
2. B shall, when it exercises the Subscription Rights, complete the
"Request Form for New Share Issue" as prescribed by A, and submit the
form signed and sealed to the Human Resources Department of A.
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3. B shall credit in cash the entire amount of the issue price of the
shares to be acquired through the exercise of the Subscription Rights
to A's designated account by the date specified by A.
4. If any withholding tax on the economic benefits available upon the
exercise of the Subscription Rights shall be withheld by A, B shall
credit an amount equal to such tax to A's designated account by the
date specified by A, according to A's demand for payment
Article 4 (Treatment of Dividends)
The first or interim dividend payments on the shares issued pursuant
to exercise of the Subscription Rights shall be made regarding that
the shares are issued on January 1 of the relevant year for the
exercise of the Subscription Rights between January 1 and June 30,
and on July 1 of the relevant year for the exercise of the
Subscription Rights between July 1 and December 31 of each year.
Article 5 (Consignment of Custody of Stock Certificates)
1. A shall deliver the stock certificates acquired by B through the
exercise of the Subscription Rights directly to B's account wherein
those stock certificates are managed ( which is referred to as the
"Account" in the following Paragraph) to be opened by B in its own
name with the securities company designated by A (hereinafter
referred to as the "Designated Securities Company").
2. B shall consign a custody of the stock certificates to the Designated
Securities Company, in accordance with the standard terms of the
Account.
Article 6 (Forfeiture of the Subscription Rights)
In any of the events listed below, B shall immediately forfeit the
Subscription Rights without going through formalities. The same shall
apply when B falls under Article 6, Xxxxxxxxx 0, Xxxxxxxxx 3 or
Paragraph 4 below and subsequently falls under any item of this
Paragraph.
(1) When B ceases to be an officer (which means a director or an
auditor; the same applies hereafter) of A or an A's group
company, due to dismissal or the equivalent thereto;
(2) When B becomes an officer, employee or consultant, etc. of a
company competing with A (excluding A's group company) except
for the case where A's board of directors has approved it;
(3) When B is in breach of laws or internal regulations or duty of
loyalty to A;
(4) When B is in breach of the provisions of this Agreement; or
(5) When B offers to A in the form designated by A to waive all or a
part of the Subscription Rights granted hereunder, or to cancel
this Agreement.
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2. B shall forfeit the Subscription Rights on the date as specified
under each item for the number of shares as follows, if B ceases to
be an officer or employee of A or an A's group company due to an
expiration of the term of office, a voluntary resignation, or the
equivalent thereto, provided, however, that if at A's board of
directors meeting a decision that all or part of the provisions in
this Paragraph is not applicable to the extent that such decision
shall not adversely affect B's rights is made, then such decision
shall prevail and the contents of such decision shall be applied,
and, further provided, that under Paragraph 1 of this Article, the
date of forfeiture of the Subscription Rights is later than the final
date of the exercise period (i.e., August 23, 2010; hereinafter
referred to as the "Final Date of the Exercise Period") provided for
under Article 1, Paragraph 1, Item (4) above, B shall forfeit the
Subscription Rights on the Final Date of the Exercise Period.
(1) For the number of shares granted on which the Subscription
Rights are exercisable under Article 2, Paragraph 1 on the date
of loss of the position:
On the 30th day following the date of such loss of the position.
(2) For the number of shares granted on which the Subscription
Rights are not exercisable under Article 2, Paragraph 1 on the
date of loss of the position:
On the date of such loss of the position.
3. When B ceases to be an officer or employee of A or an A's group
company due to a long-continued disease or the equivalent thereto, B
shall forfeit the Subscription Rights on the date 12 months after the
date of loss of the position, or September 12, 2001, whichever comes
later. However, when the date of forfeiture of the Subscription
Rights is later than the Final Date of the Exercise Period, B shall
forfeit the Subscription Rights on the Final Date of the Exercise
Period.
4. When B ceases to be an officer or employee of A or an A's group
company due to retirement under age limit, B shall forfeit the
Subscription Rights on the date 24 months or such other extended
period as may be approved by the board of directors of A after the
date of loss of the position, or September 12, 2001, whichever comes
later. However, when the date of forfeiture of the Subscription
Rights is later than the Final Date of the Exercise Period, B shall
forfeit the Subscription Rights on the Final Date of the Exercise
Period. Even if B falls under any of Paragraph 1 through Paragraph 3
above, the provision of this paragraph shall be applicable if A's
board of directors meeting has approved to that effect.
5. The scope of A's group company provided for under Paragraph 1 through
Paragraph 4 above shall comprise the subsidiaries prescribed by the
rules on consolidated financial statements and affiliated companies
determined by A's board of directors meeting, unless A's board of
directors meeting has decided to
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exclude the relevant company from A's group company for the purpose
of this Agreement.
Article 7 (Inheritance of the Subscription Rights)
1. When B dies, B's heirs may exercise the unexercised Subscription
Rights on the condition that such heirs shall be bound by the
provisions of this Agreement and other terms and conditions to be
determined by A, except for the case where B shall have submitted to
A in the form designated by A before B dies to the effect that B does
not desire to have his/her heirs exercise the Subscription rights
granted hereunder.
2. If there are more than one heir, B's heirs who shall inherit the
Subscription Rights granted hereunder should be limited to one person
(hereinafter referred to as "Successor"), provided, however, that
more than one heirs may be Successors if the Board of Directors of A
specifically so approves.
3. When the Successor(s) dies after the succession of the Subscription
Rights, the Subscription Rights shall not be succeeded to by a
successor and thus shall immediately cease to exist without going
through formalities.
4. The exercise period for the unexercised Subscription Rights inherited
by the Successor under Paragraph 1 of this Article shall expire 12
months after the date of inheritance or September 12, 2001 whichever
comes later (hereinafter referred to as the "Succession Period");
provided, however, that, if B had fallen under Article 6, Xxxxxxxxx
0, Xxxxxxxxx 3 or Paragraph 4 above before B died, the exercise
period shall expire on the date of forfeiture of the Subscription
Rights, the Final Date of the Succession Period or the Final Date of
the Exercise Period, all of which were applicable to B prior to the
death, whichever is the first to come.
5. The Successor, or in case of being more than one Successors all
Successors, must submit to A the following documents or their
respective equivalents or the report on the following matters without
delay after the date of succession:
(1) A copy of a family register (limited to one issued within 3
months);
(2) A certificate of the seal impression of the Successor (limited
to one issued within three months);
(3) Agreement on division of the estate, or any other evidence to
show the division of the estate;
(4) Any document to confirm the name(s) and address(es) of the
Successor(s) and, if any Successor resides in a foreign country
domestic; and
(5) Any other documents or matters specified by A.
6. When B's heirs fail to reach agreement on division of the estate,
they shall report to that effect to A in the name of their
representative without delay. In this case,
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the documents provided for under the preceding Paragraph shall be
submitted to A upon reaching agreement among the heirs.
7. Under Paragraph 1 above, "B" shall be translated to the "B's
Successor," to whom each provision under this Agreement except that
this Article shall apply to the extent that the application shall not
run counter to the effect of such provisions.
Article 8 (Prohibition of Disposition of the Subscription Rights)
B may not assign, pledge or dispose of the Subscription Rights, in
whole or in part, to the third party.
Article 9 (Expenses)
B shall bear all the taxes and other expenses arising in connection
with the acquisition of the stocks following the exercise of the
Subscription Rights, as well as the sale or disposal of the stocks
acquired by B.
Article 10 (Compliance with Related Laws and Internal Regulations)
For the exercise of the Subscription Rights, sale of stocks issued
by A, purchase of stocks, etc. before and after such sale, B shall
comply with the Securities Exchange Law, Commercial Code, Tax Law
and other related laws and regulations, as well as A's internal
rules on insider tradings and other internal regulations.
Article 11 (Waiver of Any Claim for Damages)
B shall not make any claim for indemnification, extra profits,
damages or any other liability against A, A's directors, etc. and
the Designated Security Company in relation to this Agreement,
irrespective of any reasons.
Article 12 (Notice)
1. Any notice from A to B under this Agreement shall be made by means of
telephone, in writing or by email to a department to which B belongs
so long as B remains as an officer or employee of A or an affiliate
company of A. When B ceases to be an officer or employee of A or an
affiliate company of A for reasons except for a death, B shall notify
Human Resources Department of A in writing of its contact place for
every change thereof. If the whereabouts and contact place become
uncertain due to B's failure in making such notice, any notice from A
to B shall be deemed to have been effectively given under this
Agreement when such notice is put in place at A's Human Resources
Department.
2. Any notice from B to A under this Agreement shall be made in writing
to A's Human Resources Department.
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(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
Article 13 (Amendments to This Agreement)
In the event of any amendments to related laws and regulations
including the Commercial Code, Securities Exchange Law, Tax Law,
etc. after the conclusion of this Agreement, and if A considers it
necessary to make amendments to this Agreement, B shall agree to the
amendment made by B.
Article 14 (Right to Establish Detailed Rules)
1. A may establish "detailed rules regarding the agreement on the grant
of Subscription rights of new shares" (hereinafter referred to as
"detailed rules") and make amendment to or abolish detailed rules.
2. A shall notify to the public the establishment, amendment, or
abolishment of detailed rules immediately after A made it in
accordance with the provision of the preceding Paragraph.
3. The notice to the public as stipulated in the preceding Paragraph
shall be made by posting the relevant contents on a bulletin board in
A's Head Office.
4. B or its Successor may request A to see detailed rules during A's
business hours and make copies thereof at its own expense.
Article 15 (Treatment of Matters not Provided for Under This Agreement)
A and B shall discuss and determine in good faith any matters not
provided for under this Agreement.
IN WITNESS WHEREOF, A and B have executed this Agreement in duplicate, with A
keeping the original and B its copy.
September 11, 2000
A: Jupiter Telecommunications Co., Ltd.
x-chome xx - x
Higashi-Ikebukuro, Toshima-ku
Tokyo
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Tsunetoshi Ishibashi, President
B:
Address:
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Name:
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(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
Exhibit
1. A shall make adjustments specified as follows when A conducts stock
split (including capitalization of profits available for dividend
payments or capital reserve; the same applies hereinafter) or reverse
stock split.
1) Of the number of shares granted as specified under Article 1,
Paragraph 1, Item 2 of the Agreement on Grant of Subscription
Rights of New Shares (hereinafter "number of shares granted"),
the number of unexercised shares granted shall be adjusted using
the following calculation formula, and any fractions smaller
than one share resulting from the adjustment shall be omitted.
Adjusted number of shares granted = Unadjusted number of
shares granted multiplied by the ratio of (stock split
or reverse stock split)
2) The issue price as specified under Article 1, Paragraph 1, Item
3 of the Agreement on Grant of Subscription Rights of New Shares
(hereinafter the "issue price") shall be adjusted using the
following calculation formula, and any fractions smaller than
one yen resulting from the adjustment shall be rounded off.
Adjusted issue price per share = Unadjusted issue price
per share multiplied by 1/ratio of (stock split or
reverse stock split)
3) The adjustments as specified under 1) and 2) above shall be
applicable from the next day and thereafter following the
scheduled date of rights offering for the stock split or from
the next day and thereafter following the expiration of a
certain period as provided for under Article 000, Xxxxxxxxx 1 of
the Commercial Code (which will apply to Article 220, mutatis
mutandis), if the date of rights offering for the stock split is
not scheduled or in the case of reverse stock split. However,
any adjustments in the case of stock split for dividend payments
shall be made in the manner as may be otherwise specified by A.
2. When A issues new shares (except for the cases of conversion of
convertible bonds and the exercise of the rights under the subscription
certificate of new shares and Subscription Rights pursuant to Article
280-19 of the Commercial Code) at a price below the market value
(however, prior to the public offering of A's shares, this provision
shall apply by substituting the market price with the unadjusted issue
price at the time), adjustment shall be made as follows:
1) Of the number of shares granted, unexercised number of shares
shall be adjusted using the following calculation formula and
any fractions smaller than one share resulting from the
adjustment shall be omitted.
Adjusted number of shares granted = (Unadjusted number of
shares granted X Unadjusted issue price)/Adjusted issue
price
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(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
2) The issue price shall be adjusted using the following
calculation formula and any fractions smaller than one yen shall
be rounded off.
Adjusted issue price = Unadjusted issue price multiplied
by [Number of issued shares + (Number of newly issued
shares X Price paid per share)/Market price]/(Number of
issued shares + Number of newly issued shares)
a) The "Market Price" used in the calculation formula shall
be, when A's shares are registered with the Japan
Securities Dealers Association, the average price of the
most recent purchase and sales price of A's common
shares at 3 p.m. of each day (except for the day when no
trading is made) announced by the Japan Securities
Dealers Association during the 30 days starting on the
45th trading day prior to the initial day of
"Application date of adjustment" stipulated in 3) below,
and when A's shares are listed on any of the stock
markets, it shall be the average price of the daily
closing price of regular transaction at the stock market
during the above 30 trading days (except for the day
when no trading is made). Any fraction less than one yen
shall be rounded up.
b) "Number of issued shares" to be used in the calculation
formula shall be the number of issued shares on the date
of allotment to the shareholders if there is such date,
or the date one month prior to "Application date of
adjustment." in all other cases, as stipulated under 3)
below.
3) The adjustment stipulated under 1) and 2) shall be applicable
from the next day following the payment deadline (if there is a
date for shareholders allotment, then the date next day
following such date).
3. When A issues securities convertible to stock or securities with a right
to subscribe new shares at a price below the market value (however,
prior to the public offering of A's shares, this provision shall apply
by substituting the market price with the unadjusted issue price at the
time), the number of shares granted and the issue price shall be
adjusted properly according to the previous provision.
4. When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any
other adjustments become necessary, A may make reasonable adjustments as
needed to the number of shares granted, issued price, exercise period
and others, as well as limit the exercise of the right and invalidate
unexercised subscription rights of new shares.
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(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
MEMORANDUM
Jupiter Telecommunications Co., Ltd. (hereinafter referred to as "A") and
______________ (hereinafter referred to as "B") hereby agree to amend the below
provisions of the Agreement on Grant of Subscription Rights of New Shares
(hereinafter referred to as the "Agreement") between A & B, dated September 11,
2000, and its Exhibit, according to the resolutions of A's extraordinary
shareholders' meeting held on September 19, 2000, and A's board of directors'
meeting held on the same day, as follows:
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Before Amendment
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Agreement
Article 1 (Grant of Subscription Rights)
2. In any of the following cases, the specifics of the Subscription Rights
shall be adjusted, restricted or invalidated, subject to the provisions in
the attachment.
(1) When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any
other adjustments become xxxxxxxxx.xx subject to stock split (including
capitalization of profits available for dividend payments or capital
reserve; the same applies hereinafter) or reverse stock split.
(2) When A issues new shares (except for the cases of conversion of
convertible bonds and the exercise of the rights under the subscription
certificate of new shares and Subscription Rights pursuant to Article
280-19 of the Commercial Code) at a price below the market value
(however, prior to the public offering of A's shares, this provision
shall apply by substituting the market price with the unadjusted issue
price at the time).
(3) When A issues the securities convertible to stock or the securities
with the rights to subscribe new shares at a price below the market
price (however, prior to the public offering of A's shares, this
provision shall apply by substituting the market price with the
unadjusted issue price at the time).
(4) When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any
other adjustments become necessary.
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After Amendment
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Agreement
Article 1 (Grant of Subscription Rights)
In any of the following cases, the specifics of the Subscription Rights shall be
adjusted, restricted or invalidated, subject to the provisions in the
attachment.
(1) When A's stocks become subject to stock split (including capitalization
of profits available for dividend payments or capital reserve; the same
applies hereinafter) or reverse stock split.
(2) When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any
other adjustments become necessary.
(3) When A issues 2,622,857.16 new shares by shareholder allotment at the
issue price of one yen per share, with September 28, 2000 as the
allotment date, pursuant to the resolution of the board of directors'
meeting on September 12, 2000.
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(ENGLISH TRANSLATION OF JAPANESE LANGUAGE DOCUMENT FOR REFERENCE ONLY)
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Before Amendment
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Exhibit
2. When A issues new shares (except for the cases of conversion of convertible
bonds and the exercise of the rights under the subscription certificate of
new shares and Subscription Rights pursuant to Article 280-19 of the
Commercial Code) at a price below the market value (however, prior to the
public offering of A's shares, this provision shall apply by substituting
the market price with the unadjusted issue price at the time), adjustment
shall be made as follows:
1) Of the number of shares granted, unexercised number of shares shall be
adjusted using the following calculation formula and any fractions
smaller than one share resulting from the adjustment shall be omitted.
Adjusted number of shares granted = (Unadjusted number of shares
granted X Unadjusted issue price)/Adjusted issue price
2) The issue price shall be adjusted using the following calculation
formula and any fractions smaller than one yen shall be rounded off.
Adjusted issue price = Unadjusted issue price multiplied by [Number of
issued shares + (Number of newly issued shares X Price paid per
share)/Market price]/(Number of issued shares + Number of newly issued
shares)
a) The "Market Price" used in the calculation formula shall be, when
A's shares are registered with the Japan Securities Dealers
Association, the average price of the most recent purchase and sales
price of A's common shares at 3 p.m. of each day (except for the day
when no trading is made) announced by the Japan Securities Dealers
Association during the 30 days starting on the 45th trading day
prior to the initial day of "Application date of adjustment"
stipulated in 3) below, and when A's shares are listed on any of the
stock markets, it shall be the average price of the daily closing
price of regular transaction at the stock market during the above 30
trading days (except for the day when no trading is made). Any
fraction less than one yen shall be rounded up.
b) "Number of issued shares" to be used in the calculation formula
shall be the number of issued shares on the date of allotment to the
shareholders if there is such date, or the date one month prior to
"Application date of adjustment." in all other cases, as stipulated
under 3) below.
3) The application date of the adjustment stipulated under 1) and 2) shall
be date next following the payment deadline (if there is a date for
shareholders allotment, then the date next following such date).
3. When A issues securities convertible to stock or securities with a right to
subscribe new shares at a price below the market value (however, prior to
the public offering of A's shares, this provision shall apply by
substituting the market price with the unadjusted issue price at the time),
the number of shares granted and the issue price shall be adjusted properly
according to the previous provision.
4. When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any other
adjustments become necessary, A may make reasonable adjustments as needed to
the number of shares granted, issued price, exercise period and others, as
well as limit the exercise of the right and invalidate unexercised
subscription rights of new shares.
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After Amendment
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Exhibit
2. When A merges with any other company or a new company incorporated for
consolidation, or implements a stock swap or stock transfer, or if any other
adjustments become necessary, A may make reasonable adjustments as needed,
without granting additional substantial financial benefit to B, to the
number of shares granted, issued price, exercise period and others, as well
as limit the exercise of the right and invalidate unexercised subscription
rights of new shares.
3. When A issues 2,622,857.16 new shares by shareholder allotment at the issue
price of one yen per share, with September 28, 2000 as the allotment date,
pursuant to the resolution of the board of directors' meeting on September
12, 2000, the number of shares subscribed shall be adjusted to three times
the original number and the issue price to 92,000 yen, following the day
after the payment date of the new shares.
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IN WITNESS WHEREOF, A and B have executed this Agreement in duplicate, with A
keeping the original and B its copy.
September 20, 2000
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A: Tsunetoshi Ishibashi, Chairman
Jupiter Telecommunications Co., Ltd.
0-00-00 Xxxxxxx-Xxxxxxxxx, Xxxxxxx-xx Xxxxx
B: Name:
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Address:
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* * *
REPRESENTATION
The undersigned certifies that the foregoing is a fair and accurate
English translation of the original Japanese language document.
/s/ Tsunetoshi Ishibashi
_______________________________________
Tsunetoshi Ishibashi
Chairman
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