EXECUTION COPY
DEPOSIT AGREEMENT
by and among
ORIX Corporation
and
CITIBANK, N.A., as Depositary,
and
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of September 16, 1998
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
Section 1.1. "Affiliate"...................................................2
Section 1.2. "American Depositary Share(s)" and "ADS(s)"...................2
Section 1.3. "ADS Record Date".............................................2
Section 1.4. "Applicant"...................................................2
Section 1.5. "Beneficial Owner"............................................2
Section 1.6. "Business Day"................................................2
Section 1.7. "Commission"..................................................2
Section 1.8. "Company".....................................................2
Section 1.9. "Custodian"...................................................2
Section 1.10. "Deliver" and "Delivery".....................................2
Section 1.11. "Deposit Agreement"..........................................3
Section 1.12. "Depositary".................................................3
Section 1.13. "Deposited Securities".......................................3
Section 1.14. "Dollars" and "$"............................................3
Section 1.15. "DTC"........................................................3
Section 1.16. "DTC Participant"............................................3
Section 1.17. "Exchange Act"...............................................3
Section 1.18. "Foreign Currency"...........................................3
Section 1.19. "Holder".....................................................3
Section 1.20. "JASDEC".....................................................3
Section 1.21. "Pre-Release Transaction"....................................3
Section 1.22. "Principal Office"...........................................3
Section 1.23. "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"..4
Section 1.24. "Registrar"..................................................4
Section 1.25. "Restricted Securities"......................................4
Section 1.27. "Share Registrar"............................................4
Section 1.28. "Shares".....................................................4
Section 1.29. "Unit".......................................................5
Section 1.30. "Yen" and "(Y)"..............................................5
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS..............................................5
Section 2.1. Appointment of Depositary.....................................5
Section 2.2. Form and Transferability of Receipts..........................5
Section 2.3. Deposit with Custodian........................................7
Section 2.4. Registration of Shares........................................8
Section 2.5. Execution and Delivery of Receipts............................8
Section 2.6. Transfer of Receipts; Combination and Split-up, of Receipts...9
Section 2.7. Surrender of Receipts and Withdrawal of Deposited
Securities....................................................9
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Section 2.8. Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc. ............11
Section 2.9. Lost Receipts, etc...........................................11
Section 2.10. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records......................................12
Section 2.11. Partial Entitlement ADSs....................................12
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
RECEIPTS.........................................................12
Section 3.1. Proofs, Certificates and Other Information...................12
Section 3.2. Liability for Taxes and Other Charges........................13
Section 3.3. Representations and Warranties on Deposit of Shares..........14
Section 3.4. Compliance with Information Requests.........................14
Section 3.5. Ownership Restrictions.......................................14
ARTICLE IV THE DEPOSITED SECURITIES..........................................15
Section 4.1. Cash Distributions...........................................15
Section 4.2. Distribution in Shares.......................................15
Section 4.3. Elective Distributions in Cash or Shares.....................16
Section 4.4. Distribution of Rights.......................................16
Section 4.5. Distributions Other Than Cash, Shares or Rights to
Purchase Shares..............................................18
Section 4.6. Distributions with Respect to Deposited Securities in
Bearer Form..................................................19
Section 4.7. Redemption...................................................19
Section 4.8. Conversion of Foreign Currency...............................19
Section 4.9. Fixing of ADS Record Date....................................20
Section 4.10. Voting of Deposited Securities..............................20
Section 4.11. Changes Affecting Deposited Securities......................21
Section 4.12. Available Information.......................................22
Section 4.13. Reports.....................................................22
Section 4.14. List of Holders.............................................22
Section 4.15. Taxation....................................................23
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY......................23
Section 5.1. Maintenance of Office and Transfer Books by the Registrar...23
Section 5.2. Exoneration..................................................24
Section 5.3. Standard of Care.............................................25
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary.........................................25
Section 5.5. The Custodian................................................26
Section 5.6. Notices and Reports..........................................27
Section 5.7. Issuance of Additional Shares, ADSs, etc.....................27
Section 5.8. Indemnification..............................................28
Section 5.9. Fees and Charges of Depositary...............................29
Section 5.10. Pre-Release Transaction.....................................30
Section 5.11. Restricted Securities Owners................................30
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ARTICLE VI AMENDMENT AND TERMINATION.........................................30
Section 6.1. Amendment/Supplement.........................................30
Section 6.2. Termination..................................................31
ARTICLE VII MISCELLANEOUS....................................................32
Section 7.1. Counterparts.................................................32
Section 7.2. No Third-Party Beneficiaries.................................32
Section 7.3. Severability.................................................33
Section 7.4. Holders and Beneficial Owners as Parties; Binding Effect.....33
Section 7.5. Notices......................................................33
Section 7.6. Governing Law and Jurisdiction...............................33
Section 7.7. Assignment...................................................35
Section 7.8. Compliance with U.S. Securities Laws.........................35
Section 7.9. Titles.......................................................35
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of September 16, 1998, by and among ORIX
Corporation, a joint stock company (Kabushiki Kaisha) organized under the laws
of Japan, and its successors (the "Company"), CITIBANK, N.A., a national banking
association organized under the laws of the United States of America acting in
its capacity as depositary, and any successor depositary hereunder (the
"Depositary"), and all Holders and Beneficial Owners of American Depositary
Shares evidenced by American Depositary Receipts issued hereunder (all such
capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding 64,870,299
shares, par value (Y)50 each (the "Shares") which are listed for trading on the
First Sections of the Tokyo Stock Exchange, The Osaka Securities Exchange and
The Nagoya Stock Exchange, respectively; and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms
of this Deposit Agreement are to be listed on The New York Stock Exchange, Inc.;
and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company, and the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1. "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.2. "American Depositary Share(s)" and "ADS(s)" shall mean with
respect to any American Depositary Receipt, the rights and interests in the
Deposited Securities granted to the Holders and Beneficial Owners pursuant to
the terms and conditions of this Deposit Agreement and the American Depositary
Receipts issued hereunder. Two American Depositary Shares shall represent one
Share, until there shall occur a distribution upon Deposited Securities referred
to in Section 4.2 or a change in Deposited Securities referred to in Section
4.11 with respect to which additional American Depositary Receipts are not
executed and delivered, and thereafter each American Depositary Share shall
represent the Shares or Deposited Securities specified in such Sections.
Section 1.3. "ADS Record Date" shall have the meaning given to such term
in Section 4.9.
Section 1.4. "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.5. "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR evidencing such ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADR(s) evidencing
the ADSs owned by such Beneficial Owner.
Section 1.6. "Business Day" shall mean any day on which banks in Tokyo,
Japan and banks in New York are open for business.
Section 1.7. "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
Section 1.8. "Company" shall mean ORIX Corporation, a Joint Stock company
(Kabushiki Kaisha) incorporated and existing under the laws of Japan, and its
successors.
Section 1.9. "Custodian" shall mean, as of the date hereof, Citibank N.A.
Tokyo, having its principal office at Citicorp Center, 2-3-14 Higashi-Shinagawa,
Shinagawa-Ku, Tokyo Japan 140, as the custodian for the purposes of this Deposit
Agreement, and any other firm or corporation which may be appointed by the
Depositary pursuant to the terms of Section 5.5 as a successor or an additional
custodian or custodians hereunder, as the context shall require. The term
"Custodians" shall mean all custodians, collectively.
Section 1.10. "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the delivery
of such security by means of book-entry transfer, if available.
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Section 1.11. "Deposit Agreement" shall mean this Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
Section 1.12. "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
Section 1.13. "Deposited Securities" at any time shall mean Shares at such
time deposited under this Deposit Agreement and any and all other securities,
property and cash at such time held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of Section 4.8.
The collateral delivered in connection with Pre-Release Transactions described
in Section 5.10 hereof shall not constitute Deposited Securities.
Section 1.14. "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.15. "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.16. "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.17. "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.18. "Foreign Currency" shall mean currency other than Dollars.
Section 1.19. "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADSs evidenced by the Receipt registered in its
name, such person shall be deemed to have all requisite authority to act on
behalf of the Beneficial Owners of such ADSs.
Section 1.20. "JASDEC" shall mean the Japan Securities Depositary Center.
Section 1.21. "Pre-Release Transaction" shall have the meaning set forth
in Section 5.10 hereof.
Section 1.22. "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
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Section 1.23. "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) issued by the Depositary evidencing the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
Section 1.24. "Registrar" shall mean the Depositary or, with the approval
of the Company, any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed by the Depositary to
register ownership of Receipts and transfers of Receipts as herein provided, and
shall include any co-registrar appointed by the Depositary, with the approval of
the Company, for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary with the approval of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall be required to give notice in writing to the Depositary
and the Company accepting such appointment and agreeing to be/bound by the
applicable terms of this Deposit Agreement.
Section 1.25. "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States,
Japan, or under a shareholder agreement or the Articles of Incorporation and
Share Handling Regulations of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares are being sold
to persons other than an Affiliate of the Company in a transaction (i) covered
by an effective resale registration statement or (ii) exempt from the
registration requirements of the Securities Act (as hereinafter defined), and
the Shares are not, when held by such person, Restricted Securities.
Section 1.26. "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
Section 1.27. "Share Registrar" shall mean The Tokyo Trust and Banking
Company, Ltd. or a depository institution organized under the laws of Japan,
which carries out the duties of registrar for the Shares or any successor as
Share Registrar for such Shares appointed by the Company.
Section 1.28. "Shares" shall mean the Company's shares of common stock,
par value (Y)50 per share, validly issued and outstanding and fully paid and
may, if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have
theretofore not been validly waived or exercised; provided further, however,
that, if there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.11, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event.
4
Section 1.29. "Unit" shall mean 100 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.
Section 1.30. "Yen" and (Y) shall refer to the lawful' currency of Japan.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1. Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof).
Section 2.2. Form and Transferability of Receipts.
(a) Form. American Depositary Shares shall be evidenced by
definitive Receipts which shall be printed or lithographed or shall be in such
other form as may be agreed upon by the Company and the Depositary, and in any
event shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed and dated by the Depositary by
the manual signature of a duly authorized officer of the Depositary; provided,
however, that the signature of such officer of the Depositary may be a facsimile
if such Receipts are countersigned by the manual signature of a duly authorized
employee of the Registrar and dated by such employee. No Receipt and no American
Depositary Share evidenced thereby shall be entitled to any benefits under this
Deposit Agreement or be valid or enforceable for any purpose, unless such
Receipt shall have been executed by the manual signature of a duly authorized
officer of the Depositary or the Registrar, and such execution of any Receipt by
manual signature shall be conclusive evidence, and the only evidence, that such
Receipt has been duly executed and delivered hereunder. The Registrar shall
maintain separate books in which is registered each Receipt evidencing American
Depositary Shares so executed and delivered and the transfer of each American
Depositary Receipt. Receipts bearing the manual or facsimile signature of a
duly-authorized officer of the Depositary, who was at the time of signature a
proper officer of the Depositary, shall bind the Depositary, notwithstanding the
fact that such officer has ceased to hold such office prior to the execution of
such Receipt by the Depositary or the Registrar or the delivery of such Receipt.
The Receipts shall bear a CUSIP number that is different from any CUSIP number
that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company which are not Receipts issued hereunder.
5
(b) Legends. The Receipts may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) may be required to comply
with any applicable law or regulations, or with the rules and regulations of any
securities exchange or market upon which American Depositary Shares may be
traded, listed or quoted or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or American Depositary Shares are subject by
reason of the date of issuance of the Deposited Securities, or (iv) may be
required by any book-entry system in which the ADRs are held.
(c) Title. Subject to the limitations contained herein and in the
Receipt, title to a Receipt (and to each American Depositary Share evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
deem and treat the Holder of a Receipt (that is, the person in whose name a
Receipt is registered on the books of the Depositary) as the absolute owner
thereof for all purposes, and the Depositary shall have no obligation or be
subject to any liability under this Deposit Agreement to any holder of a Receipt
or any beneficial owner unless such holder is the registered Holder of such
Receipt on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the American Depositary Shares into DTC. A single ADR in the
form of a "Balance Certificate" will evidence all ADSs held through DTC and will
be registered in the name of the nominee for DTC (currently "Cede & Co."). As
such, the nominee for DTC will be the only "Holder" of the ADR evidencing all
ADSs held through DTC. Each Beneficial Owner of ADSs held through DTC must rely
upon the procedures of DTC and the DTC Participants to exercise or be entitled
to any rights attributable to such ADSs. The DTC Participants shall for all
purposes be deemed to have all requisite power and authority to act on behalf of
the Beneficial Owners of the ADSs held in the DTC Participants' respective
accounts in DTC and the Depositary shall for all purposes be authorized to rely
upon any instructions and information given to it by DTC Participants on behalf
of Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC (or
its nominee), or (ii) DTC Participants (or their nominees).
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Section 2.3. Deposit with Custodian. Subject to the terms and conditions
of this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares issued by the Company (other than Restricted Securities) may be
deposited by any person (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the Company, to
Section 5.7 hereof) at any time, whether or not the transfer books of the
Company or the Share Registrar, if any, are closed, by delivery of the Shares to
the Custodian, and (A) appropriate instruments of transfer or endorsement, in a
form satisfactory to the Custodian, or, (B) such certifications and payments
(including, without limitation, the Depositary's fees and related charges) and
evidence of such payments (including, without limitation, stamping or otherwise
marking such Shares by way of receipt) as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, (C)
if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of American Depositary
Shares representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in Japan, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument satisfactory
to the Depositary or the Custodian which provides for the prompt transfer to the
Custodian of any dividend or distribution or right to subscribe for additional
Shares or to receive other property in respect of any such deposited Shares or,
in lieu thereof, such indemnity or other agreement as shall be satisfactory to
the Depositary or the Custodian and (ii) if the Shares are registered in the
name of the person on whose behalf they are presented for deposit, a proxy or
proxies entitling the Custodian to exercise voting rights in respect of the
Shares for any and all purposes until the Shares so deposited are registered in
the name of the Depositary, the Custodian or any nominee.
The Depositary and the Custodian will each refuse to accept for physical
deposit Shares or other securities that it reasonably believes to be Restricted
Securities. Persons depositing Shares, other than the Company depositing Shares
constituting a free distribution of Shares by way of dividend or stock split,
will be required to present appropriate evidence (including opinions of counsel
if requested) satisfactory to the Depositary and the Company that such Shares
and the issuance of the ADRs evidencing the ADSs issuable upon such deposit are
not Restricted Securities. In addition, the Depositary and the Custodian shall
refuse to accept physical deposit of Shares for deposit whenever notified, as
hereafter provided, that the Company has restricted transfer of such Shares to
comply with delivery or transfer requirements and/or ownership restrictions
referred to in this Deposit Agreement or under applicable law. The Company shall
notify the Depositary and the Custodian in writing with respect to any such
restrictions on transfer of its Shares for deposit hereunder or transfer of
Receipts to any Holder.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any fractional Shares or fractional Deposited
Securities nor (b) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No
Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of Japan and any
necessary approval has been granted by any governmental body in Japan, if any,
which is then performing the function of the regulator of currency exchange. The
Depositary may issue Receipts against evidence of rights to receive Shares from
the Company, any agent of the Company or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof.
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Section 2.4. Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of certificates representing registered Shares
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), together with the other documents above
specified, to present such certificate or certificates, together with the
appropriate instrument or instruments of transfer or endorsement, duly stamped,
to the Share Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
for whom the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Articles of Incorporation and Share Handling
Regulations of the Company.
Section 2.5. Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Depositary, Custodian
or a nominee of either on the shareholders' register maintained by or on behalf
of the Company if registered Shares have been deposited or if deposit is made by
book-entry transfer, confirmation of such transfer in the books of JASDEC, (iii)
that all required documents have been received, and (iv) the person or persons
to whom or upon whose written order American Depositary Shares are deliverable
in respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification may be made by letter, cable, telex, swift message
or, at the risk and expense of the person making the deposit, by facsimile or
other means of electronic transmission. Upon receiving such notice from such
Custodian, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall issue the American Depositary Shares representing the Shares so
deposited to or upon the order of the person(s) named in the notice delivered to
the Depositary and shall execute and deliver a Receipt or Receipts, registered
in the name or names requested by such person(s) and evidencing the aggregate
number of American Depositary Shares to which such person(s) are entitled, but
only upon payment to the Depositary of the charges of the Depositary for
accepting a deposit, issuing American Depositary Shares and executing and
delivering such Receipt or Receipts (as set forth in Section 5.9 and Exhibit B
hereto) and all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Shares and the issuance of the Receipt
or Receipts. The Depositary shall only issue American Depositary Shares in whole
numbers and deliver American Depositary Receipts evidencing whole numbers of
American Depositary Shares. Nothing in this Section 2.5 shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
8
Section 2.6. Transfer of Receipts; Combination and Split-up, of Receipts.
(a) Transfer. The Registrar, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard industry practice) and duly stamped as may be required
by the laws of the State of New York and of the United States of America.
Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9
and Exhibit B hereto, the Depositary shall execute and, if the Depositary's
signature is by facsimile, the Registrar shall manually countersign, a new
Receipt or Receipts and the Depositary shall deliver the same to or upon the
order of the person entitled thereto evidencing the same aggregate number of
American Depositary Shares as those evidenced by the Receipts surrendered.
(b) Combination & Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit B hereto, execute and, if the
Depositary's signature is by facsimile, the Registrar shall manually
countersign, and the Depositary shall deliver, a new Receipt or Receipts for any
authorized number of American Depositary Shares requested, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
(c) Co-Transfer Agents. The Depositary may, with the approval of the
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the approval of the Company. Each co-transfer agent appointed under this
Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
Section 2.7. Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees, charges and expenses of
the Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section, 5.9 and Exhibit B hereof) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Articles of Incorporation and Share Handling
Regulations, Section 7.8 hereof and any other provisions of or governing the
Deposited Securities and other applicable laws, the Holder of such American
Depositary Shares shall be entitled to delivery, to him or upon his order, of
the Deposited Securities at the time represented by the American Depositary
Shares so surrendered. American Depositary Shares may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such American Depositary Shares (if held in registered form) or by book-entry
delivery of such American Depositary Shares to the Depositary.
9
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank (if held in registered form), and if the Depositary so
requires, the Holder thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the Custodian
to deliver (without unreasonable delay) at the designated office of the
Custodian, subject to Sections 2.8, 3.1, 3.2, 5.9, and to the other terms and
conditions of this Deposit Agreement, to the Articles of Incorporation and Share
Handling Regulations of the Company, and the provisions of or governing the
Deposited Securities and applicable laws, now or hereafter in effect, to or upon
the written order of the person or persons designated in the order delivered to
the Depositary as provided above, the Deposited Securities represented by such
American Depositary Shares together with any certificate or other proper
documents of or relating to title of the Deposited Securities, or evidence of
the electronic transfer thereof (if available), as the case may be, to or for
the account of such person. The Depositary may make delivery to such person or
persons at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt or Receipts
evidencing American Depositary Shares representing in the aggregate less than
one Share. The Depositary may, in its discretion, refuse to accept for surrender
a number of American Depositary Shares representing a number other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
10
Section 2.8. Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B hereof, (ii) the production
of proof satisfactory to it as to the identity and genuineness of any signature
or any other matter contemplated by Section 3.1 hereof and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of this Deposit Agreement and
applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange on
which the Receipts or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject in all
cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this
Deposit Agreement or any Receipt to the contrary, the Holders of Receipts are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
any time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges and (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
Section 2.9. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
11
Section 2.10. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Section 2.11. Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the record date holders thereof to receive a per-Share
distribution or other entitlement in an amount different from the Shares then on
deposit (the Shares then on deposit collectively, "Full Entitlement Shares" and
the Shares with different entitlement, "Partial Entitlement Shares"), the
Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares
separate and distinct from Full Entitlement Shares, and (ii) subject to the
terms of this Agreement, issue ADSs representing Partial Entitlement Shares and
deliver ADRs evidencing such ADSs which ADSs and ADRs are separate and distinct
from the ADSs and ADRs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) ("Partial Entitlement
ADSs/ADRs" and "Full Entitlement ADSs/ADRs", respectively). If and when Partial
Entitlement Shares become Full Entitlement Shares, the Depositary shall (a) give
notice thereof to Holders of Partial Entitlement ADSs and give Holders of
Partial Entitlement ADRs the opportunity to exchange such Partial Entitlement
ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c) take
such actions as are necessary to remove the distinctions between (i) the Partial
Entitlement ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs
and ADSs on the other. Holders and Beneficial Owners of Partial Entitlement ADSs
shall only be entitled to the entitlement of Partial Entitlement Shares. Holders
and Beneficial Owners of Full Entitlement ADSs shall be entitled only to the
entitlements of Full Entitlement Shares. All provisions and conditions of this
Agreement shall apply to Partial Entitlement ADRs and ADSs to the same extent as
Full Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on Receipts) to
give effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF RECEIPTS
Section 3.1. Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the appointed agent of the Company for the registration and
transfer of Shares) as the Depositary or the Custodian may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any Receipt or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
by the terms of Section 7.8 hereof, the delivery of any Deposited Securities
until such proof or other information is filed or such certifications are
executed, or such representations are made, or such other documentation or
information provided, in each case to the Depositary's, the Registrar's and the
Company's satisfaction. The Depositary shall provide the Company, in a timely
manner, with copies or originals if necessary and appropriate of (i) any such
proofs of citizenship or residence, taxpayer status, or exchange control
approval which it or the Registrar receives from Holders and Beneficial Owners,
and (ii) any other information or documents which the Company may reasonably
request and which the Depositary or the Registrar shall request and receive from
any Holder or Beneficial Owner or any person presenting Shares for deposit or
ADSs for cancellation and withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
Section 3.2. Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary with respect to any
ADR or any Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer, split-up or combination of
ADRs and (subject to Section 7.8) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to release from liability each of the
Depositary, the Custodian, and any of their agents, officers, employees and
Affiliates from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any foreign tax credit obtained for such
Holder and/or Beneficial Owner excluding any claims (a) arising from the
negligence or bad faith of the Depositary, the Custodian and any of their agents
officers, employees and Affiliates, (b) relating to any Pre-Release Transaction
not engaged in on behalf of such Holder or Beneficial Owner or (c) arising from
the failure of the Depositary, the Custodian and any of their agents, officers,
employees and Affiliates to, reasonably provide information, upon the request of
a Holder or Beneficial Owner, as may be necessary for such Holder or Beneficial
Owner to obtain foreign tax credits with respect to any taxes imposed on the
Deposited Securities.
13
Section 3.3. Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do and (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
Section 3.4. Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to Japanese law, the
rules and requirements of The New York Stock Exchange, and any other stock
exchange on which the Shares are, or will be, registered, traded or listed or
the Articles of Incorporation and Share Handling Regulations of the Company,
which are made to provide information, inter alia, as to the capacity in which
such Holder or Beneficial Owner owns American Depositary Shares (and Shares as
the case may be) and regarding the identity of any other person interested in
such American Depositary Shares and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
Section 3.5. Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Incorporation and Share Handling Regulations
of the Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where such transfer may
result in the total number of Shares represented by the American Depositary
Shares owned by a single Holder or Beneficial Owner to exceed any such limits.
The Company may, in its sole discretion but subject to applicable law, instruct
the Depositary to take action with respect to the ownership interest of any
Holder or Beneficial Owner in excess of the limits set forth in the preceding
sentence, including, but not limited to, the imposition of restrictions on the
transfer of American Depositary Shares, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the American Depositary Shares held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of
Incorporation and Share Handling Regulations of the Company.
14
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1. Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary (pursuant to Section 4.8
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.8)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of American Depositary Shares held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of Receipts outstanding
at the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section 4.2. Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement, or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby. In lieu of
delivering fractional American Depositary Shares, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the net proceeds upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company, in the fulfillment of its obligation
under Section 5.7 hereof, has furnished an opinion of U.S. counsel determining
that Shares must be registered under the Securities Act or other laws in order
to be distributed to Holders (and no such registration statement has been
declared effective), the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of (a) any such taxes and (b) any such fees
and charges of, and expenses incurred by, the Depositary as provided herein) to
Holders entitled thereto upon the terms described in Section 4.1. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of this Deposit Agreement.
15
Section 4.3. Elective Distributions in Cash or Shares. Whenever the
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall give notice thereof
to the Depositary at least 30 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders and Beneficial Owners of ADSs. Upon receipt of notice indicating that
the Company wishes such elective distribution to be made available to Holders
and Beneficial Owners of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders and Beneficial Owners of ADSs. The
Depositary shall make such elective distribution available to Holders and
Beneficial Owners only if (i) the Depositary shall have determined that such
distribution is reasonably practicable and (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders and Beneficial Owners, on the basis
of the same determination as is made in the local market in respect of the
Shares for which no election is made, either (X) cash upon the terms described
in Section 4.1 or (Y) additional ADSs representing such additional Shares upon
the terms described in Section 4.2. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described in Section
4.9) and establish procedures to enable Holders and Beneficial Owners to elect
the receipt of the proposed dividend in cash or in additional ADSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed dividend (X) in cash, the
dividend shall be distributed upon the terms described in Section 4.1, or (Y) in
ADSs, the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
16
Section 4.4. Distribution of Rights.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 30 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such rights available to the Holders.
The Depositary shall make such rights available to Holders only if (i) the
Company shall have requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall proceed with
the sale of the rights as contemplated in Section 4.4(b) below. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.9) and establish procedures
to distribute such rights (by means of warrants or otherwise) and to enable the
Holders to exercise the rights (upon payment of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes). The Company shall
assist the Depositary to the extent reasonably necessary in establishing such
procedures. Nothing herein shall obligate the Depositary to make available to
the Holders a method to exercise such rights to subscribe for Shares (rather
than ADSs).
(b) Sale of Rights. If (i) the Company does not request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem proper. The Company
shall assist the Depositary to the extent reasonably necessary to determine such
legality and practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders unless and until a registration statement under the
Securities Act covering such offering is in effect. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
17
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights or otherwise.
Section 4.5. Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company decides to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of
the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall distribute
the property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment of the applicable fees and charges of, and expenses incurred
by, the Depositary, and (ii) net of any taxes withheld. The Depositary may
dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
sell or cause such property to be sold in a public or private sale, after
consultation with the Company, at such place or places and upon such terms as it
may deem proper and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances after consultation with the
Company.
18
Section 4.6. Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7. Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 30 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such (i) notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7, and only
if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall mail to each Holder a notice setting forth the
intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. The Depositary
shall instruct the Custodian to present to the Company the Deposited Securities
in respect of which redemption rights are being exercised against payment of the
applicable redemption price. Upon receipt of confirmation from the Custodian
that the redemption has taken place and that funds representing the redemption
price have been received, the Depositary shall convert, transfer, and distribute
the proceeds (net of applicable (a) fees and charges of, and the expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1
and 6.2 hereof. If less than all outstanding Deposited Securities are redeemed,
the ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
Section 4.8 hereof and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section 4.8. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted (at the prevailing market rate), by sale or in any
other manner that it may determine, such Foreign Currency into Dollars, and
shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of this Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of any application of exchange restrictions or otherwise.
19
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.9. Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall, after
consultation with the Company, fix a record date (the "ADS Record Date") for the
determination of the Holders of Receipts who shall be entitled to receive such
dividend, distribution, give instructions for the exercise of voting rights at
any such meeting, or to give or withhold such consent, or to receive such notice
or solicitation or to otherwise take action, or to exercise the rights of
Holders with respect to such changed number of Shares represented by each
American Depositary Share. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any). Subject to applicable law and the
provisions of Section 4.1 through 4.8 and to the other terms and conditions of
this Deposit Agreement, only the Holders of Receipts at the close of business on
such ADS Record Date shall be entitled to receive such distribution, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
20
Section 4.10. Voting of Deposited Securities. Upon receipt by the
Depositary from the Company of an English translation of (i) a notice of a
meeting of holders of Shares or other Deposited Securities (the "Company
Notice") and (ii) the voting card issued (or to be issued) by, or on behalf of,
the Company to its shareholders in Japan for purposes of such meeting, which
voting card shall set forth the matters to be voted on at such meeting and the
manner in which unvoted Shares will be treated by the Company under Japanese law
(the "Japanese Voting Card"), the Depositary shall, as soon as practicable
thereafter, but only upon the timely receipt of such materials in each case,
mail to each Holder of a Receipt as of the ADS Record Date established for such
purpose (a) a copy of the Company Notice together with the Japanese Voting Card,
(b) a card to be used by Holders of Receipts to deliver voting instructions to
the Depositary (the "Voting Instructions Card") and (c) a Depositary's Notice of
the Shareholders' Meeting stating, inter alia, that the Holders of Receipts as
of the ADS Record Date established for such purpose will be entitled, subject to
any applicable provisions of law and of the Articles of Incorporation and Share
Handling Regulations of the Company, to instruct the Depositary as to the
exercise of the voting rights pertaining to the Shares or other Deposited
Securities represented by their American Depositary Shares, and describing the
manner in which such instructions may be given to the Depositary, including an
express indication that in the absence of any instructions from the Holder of a
Receipt, such Holder shall be deemed to have authorized and instructed the
Depositary to allow the Shares or other Deposited Securities represented by such
Receipt to be voted in the manner unvoted Shares are contemplated to be voted in
the Japanese Voting Card. The Company undertakes to deliver to the Depositary
the English translations of the Company Notice and the Japanese Voting Card on a
timely basis. The Company agrees that, notwithstanding anything else contained
in this Deposit Agreement, it shall not knowingly allow any Shares held under
the terms of this Deposit Agreement to be voted without specific instructions of
a Holder if the Company shall not have provided the Company Notice together with
the Japanese Voting Card to the Depositary for distribution to Holders on a
timely basis.
Upon the timely delivery to the Depositary by a Holder of a Receipt of a
duly completed Voting Instructions Card, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by such Receipt(s) in accordance with the
instructions set forth in such Voting Instructions Card. To the extent the
aggregate of the American Depositary Shares voted for and against a proposal do
not constitute integral multiples of a Unit, the remainders in excess of the
highest integral multiple of a Unit will be disregarded. In the absence of a
timely delivery to the to the Depositary of a Voting Instructions Card by the
Holder of a Receipt, such Holder shall be deemed, and the Depositary shall deem
such Holder, to have authorized and instructed the Depositary to allow the
Shares or other Deposited Securities represented by such Receipt to be voted in
the manner unvoted Shares are contemplated to be voted in the Japanese Voting
Card.
There can be no assurance that Holders generally or any Holder in
particular will receive the Notice of Shareholders' Meeting and the Voting
Instructions Card with sufficient time to enable the Holder to return the Voting
Instructions Card to the Depositary in a timely manner.
21
Section 4.11. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. The Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of an opinion of counsel to the
Company satisfactory to the Depositary that such distributions are not in
violation of any applicable laws or regulations, execute and deliver additional
Receipts as in the case of a stock dividend on the Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts, in either
case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
Section 4.12. Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X.
00000 and at the Commission's New York City office located at Seven World Trade
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 4.13. Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail to Holders copies of such reports when furnished by the Company pursuant to
Section 5.6.
Section 4.14. List of Holders. Promptly after March 31 and September 30 in
each year after the date hereof, and at other times promptly upon written
request by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of American Depositary Shares
of all registered Holders and such information relating to DTC participant
positions as the Depositary may reasonably obtain from DTC.
22
Section 4.15. Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information (including
information that it may reasonably obtain from Holders and Beneficial Owners of
ADSs) as the Company may reasonably request to enable the Company or its agents
to file the necessary tax reports with governmental authorities or agencies. The
Depositary, the Custodian or the Company and its agents shall undertake
reasonable efforts to file such reports as are necessary to reduce or eliminate
applicable taxes on dividends and on other distributions in respect of Deposited
Securities under applicable tax treaties or laws for the Holders and Beneficial
Owners. In accordance with instructions from the Company and to the extent
reasonable and practicable, the Depositary or the Custodian will take reasonable
administrative actions to obtain tax refunds, reduced withholding of tax at
source on dividends and other benefits under applicable tax treaties or laws
with respect to (a) dividends and other distributions on the Deposited
Securities and (b) dispositions of Deposited Securities. Holders and Beneficial
Owners of American Depositary Shares may be required front time to time, and in
a timely manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
If the Company (or any of its agents) withholds from any distribution or
other payment any amount on account of taxes or governmental charges, or pays
any other tax in respect of such distribution or other payment (i.e. stamp duty
tax, capital gains or other similar tax), the Company shall (and shall cause
such agent to) remit promptly to the Depositary information about such taxes or
governmental charges withheld or paid, and, if so requested, the tax receipt (or
other proof of payment to the applicable governmental authority) therefor, in
each case, in a form satisfactory to the Depositary. The Depositary shall (i)
report to Holders any taxes withheld by it or the Custodian, and, if such
information is provided to it by the Company, any taxes withheld by the Company
and (ii) provide Holders with evidence of the remittance or payment thereof by
it, the Custodian, or, to the extent such evidence is received from the Company,
by the Company.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company
unless such information is provided by the Company. The Depositary shall not
incur any liability for any tax consequences that may be incurred by Holders and
Beneficial Owners on account of the tax status of the Company, including without
limitation, tax consequences resulting from the Company (or any of its
subsidiaries) being treated as a "Foreign Personal Holding Company," or as a
"Passive Foreign Investment Company" (in each case as defined in the U.S.
Internal Revenue Code and the regulations issued thereunder).
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1. Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
23
The Registrar shall keep books for the registration and transfer of
Receipts which at all reasonable times shall be open for inspection by the
Company and by the Holders of such Receipts, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such Receipts in the interest of a business or object other than the
business of the Company or other than a matter related to this Deposit Agreement
or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company, subject, in all cases, to Section 7.8
hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, with the approval of
the Company, appoint a Registrar or one or more co-registrars for registration
of Receipts and transfers, combinations and split-ups, and to countersign such
Receipts in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary with the approval of the Company.
Section 5.2. Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Japan or any other country, or of any other governmental authority or regulatory
authority or stock exchange, or on account of the possible criminal or civil
penalties or restraint, or by reason of any provision, present or future of the
Articles of Incorporation and Share Handling Regulations of the Company or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions and explosions), (ii)
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement or in the Articles of Incorporation and Share
Handling Regulations of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of American Depositary Shares or
(v) for any consequential or punitive damages for any breach of the terms of
this Deposit Agreement.
24
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons (if any) and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3. Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement. The Depositary shall not incur any liability for any failure
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the tax status of the Company, for
the credit-worthiness of any third party, for allowing any rights to lapse upon
the terms of this Deposit Agreement or for the failure or timeliness of any
notice from the Company.
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
25
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its reasonable best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5. The Custodian. The Depositary has initially appointed
Citibank N.A. Tokyo as Custodian for the purpose of this Deposit Agreement. The
Custodian or its successors in acting hereunder shall be subject at all times
and in all respects to the direction of the Depositary for the Shares and other
Deposited Securities and other property for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian that is organized under the laws
of Japan and obtain the approval of the Company of such appointment. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained xx.xx
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may, with the
approval of the Company, appoint an additional custodian with respect to any
Deposited Securities, or, with the approval of the Company, discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of Receipts, each other Custodian
and the Company.
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Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6. Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Incorporation and Share Handling
Regulations of the Company that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual reports
prepared in accordance with the applicable requirements of the Commission. The
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing of copies thereof to all Registered Holders or make
such notices, reports and other communications available to all Holders on a
basis similar to that for holders of Shares or other Deposited Securities or on
such other basis as the Company may advise the Depositary or as may be required
by any applicable law, regulation or stock exchange requirement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
Section 5.7. Issuance of Additional Shares, ADSs, etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
27
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will upon the request of the Depositary furnish to the
Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (1) requires a registration statement under the Securities
Act to be in effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of Japanese counsel stating that (1) making
the transaction available to Holders and Beneficial Owners does not violate the
laws or regulations of Japan and (2) all requisite regulatory consents and
approvals have been obtained in Japan. If the filing of a registration statement
under the Securities Act is required, the Depositary shall not have any
obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction so that the registration requirements of the
Securities Act are not applicable or (iii) direct the Depositary to take
specific measures, in each case as contemplated in this Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act and, if applicable, the Exchange Act or have been registered under the
Securities Act and, if applicable, the Exchange Act and such registration
statement has been declared effective.
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8. Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary in connection with this Agreement due to the negligence or bad
faith of the Depositary.
28
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as the
case may be, in accordance with this Deposit Agreement, (b) out of or as a
result of any offering documents in respect thereof or (c) out of acts performed
or omitted, including, but not limited to, any delivery by the Depositary on
behalf of the Company of information regarding the Company in connection with
this Deposit Agreement, the Receipts, the American Depositary Shares, the
Shares, or any Deposited Securities, in any such case (i) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent such loss, liability, tax, charge or expense is
due to the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
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
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9. Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above accrued prior to any termination of this Deposit
Agreement shall survive such termination. As to any Depositary, upon the
resignation or removal of such Depositary as described in Section 5.4 hereof,
such right shall extend for those fees, charges and expenses incurred prior to
the effectiveness of such resignation or removal.
29
Section 5.10. Pre-Release Transaction. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt and cancellation of ADRs pursuant to
Section 2.7 hereof including ADRs which were issued under (i) above but for
which Shares may not have been received (each such transaction a "Pre-Release
Transaction"), subject to the terms and conditions of this Deposit Agreement and
any limitations established by the Depositary. The Depositary may receive ADRs
in lieu of Shares under (i) above and receive Shares in lieu of ADRs under (ii)
above in satisfaction of a Pre-Release Transaction. Each such Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs to be delivered (w) represents that at the
time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) assigns all beneficial right, title and interest in the Shares
to the Depositary for the benefit of the Holders and Beneficial Owners and
agrees to hold such Shares in trust for the Depositary until such Shares are
delivered to the Depositary or the Custodian, (y) unconditionally guarantees to
deliver to the Depositary or the Custodian such Shares and (z) agrees not to
take any action with respect to such Shares that is inconsistent with the
transfer of beneficial ownership and to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized (marked to market daily) with cash, United States government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as the market conditions may
dictate. The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
Section 5.11. Restricted Securities Owners. The Company agrees to advise
in writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder.
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ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached
thereto and to be issued under the terms thereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for the
American Depositary Shares or Shares to be traded solely in 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 materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such American Depositary Shares or Shares, to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
as amended and supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed laws,
rules or regulations. 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 with such laws, rules or regulations.
Section 6.2. Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination as specified by
the Company. If 60 days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the
Company shall have delivered to the Depositary a written notice of the removal
of the Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.7 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
31
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in Section 2.7, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement with respect to the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2. No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
and other commercial relationships with the Company and its Affiliates, (ii) the
Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company or the Holders or Beneficial Owners may
have interests and (iii) nothing contained in this Agreement shall (a) preclude
the Depositary or any of its Affiliates from engaging in such transactions or
establishing or maintaining such relationships, (b) obligate the Depositary or
any of its Affiliates to disclose such transactions or relationships or to
account for any profit made or payment received in such transactions or
relationships.
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Section 7.3. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4. Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
Section 7.5. Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to World Trade Center Building, 0-0-0 Xxxxxxxxx-xxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx, Attention: Manager, General Affairs Department or to any other
address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 111 Wall Street, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention:
ADR Department, or to any other address which the Depositary may specify in
writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank N.A.
Tokyo, Citicorp Center 2-3-14 Higashi-Shinagawa, Shinagawa-Ku, Tokyo Japan 140,
or to any other address which the Custodian may specify in writing to the
Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
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Section 7.6. Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Xxxxxx Xxxxxxxx (the "Agent") now
at ORIX USA Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
as its authorized agent to receive and accept for and on its behalf, and on
behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
as described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be stationed in the State of New
York and otherwise available to act as such, the Company agrees to designate a
new agent in New York on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 hereof. The Company agrees that the failure of the Agent
to give any notice of such service to it shall not impair or affect in any way
the validity of such service or any judgment rendered in any action or
proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
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The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
Section 7.7. Assignment. Subject to the provisions Section 5.4 hereof,
this Deposit Agreement may not be assigned either the Company or the Depositary.
Section 7.8. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9. Titles. All references in this Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
35
IN WITNESS WHEREOF, ORIX CORPORATION and CITIBANK, N.A. have duly executed
this Deposit Agreement as of the day and year first above set forth and all
Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of American Depositary Shares evidenced by Receipts issued in accordance
with the terms hereof.
ORIX CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
CITIBANK, N.A.
By: /s/ Xxxxx X. XxXxxxxxx
-------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
36
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing Shares or Holders and Beneficial
Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
37
Number
CUSIP
American Depositary
Shares (Two American
Depositary Shares
representing one
Share of common stock,
par value (Y)50 per share)
38
EXHIBIT A
FORM OF FACE OF RECEIPT
AMERICAN DEPOSITARY RECEIPT
EVIDENCING
AMERICAN DEPOSITARY SHARES
REPRESENTING
COMMON SHARES PAR VALUE (Y)50 PER SHARE
of
ORIX CORPORATION, A JOINT STOCK COMPANY
(KABUSHIKI KAISHA)
ORGANIZED UNDER THE LAWS OF JAPAN
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that _____________ is the owner of ___________
American Depositary Shares (hereinafter "ADSs"), representing shares of Common
Stock, par value (Y)50 per share, including evidence of rights to receive such
shares (the "Shares") of ORIX Corporation, a Joint Stock company (Kabushiki
Kaisha) organized under the laws of Japan (the "Company"). As of the date of the
Deposit Agreement (hereinafter referred to), two ADSs represent one Share
deposited under the Deposit Agreement with the Custodian which at the date of
execution of the Deposit Agreement is Citibank N.A. Tokyo (the "Custodian"). The
ratio of Depositary Shares to shares of stock is subject to subsequent amendment
as provided in Article IV of the Deposit Agreement. The Depositary's Principal
Office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(a) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
September 16, 1998 (as amended from time to time, the "Deposit Agreement"), by
and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time, received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and the Custodian.
A-1
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Incorporation
and Share Handling Regulations of the Company (as in effect on the date of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement, to which reference is hereby made. All capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the
American Depositary Shares into DTC. Each Beneficial Owner of American
Depositary Shares held through DTC must rely on the procedures of DTC and the
DTC Participants to exercise and be entitled to any rights attributable to such
American Depositary Shares. The Receipt evidencing the American Depositary
Shares held through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt registered in
the name of DTC (or its nominee) will be shown on, and transfers of such
ownership will be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
(b) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fees, charges and expenses of the
Depositary for the making of withdrawals and cancellation of Receipts (as set
forth in Article (10) hereof and in Section 5.9 and Exhibit B of the Deposit
Agreement) and (ii) all applicable taxes and governmental charges payable in
connection with such surrender and withdrawal, and, subject to the terms and
conditions of the Deposit Agreement, the Company's Articles of Incorporation and
Share Handling Regulations, Section 7.8 of the Deposit Agreement, Article (24)
of this Receipt and any other provisions of or governing the Deposited
Securities and other applicable laws, the Holder of such American Depositary
Shares shall be entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the ADSs so surrendered. ADSs may be
surrendered for the purpose of withdrawing Deposited Securities by delivery of a
Receipt evidencing such ADSs (if held in registered form) or by book-entry
delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank (if held in registered form), and if the Depositary so
requires, the Holder thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the Custodian
to deliver (without unreasonable delay) at the designated office of the
Custodian, subject to the terms and conditions of the Deposit Agreement, the
Articles of Incorporation and Share Handling Regulations of the Company, and the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such ADSs together with any certificate or
other proper documents of or relating to title of the Deposited Securities or
evidence of the electronic transfer thereof (if available), as the case may be,
to or for the account of such person. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends or
cash distributions with respect to the Deposited Securities represented by such
Receipts, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
A-2
The Depositary shall not accept for surrender a Receipt or Receipts
evidencing ADSs representing less than one Share. The Depositary may, in its
discretion, refuse to accept for surrender a number of American Depositary
Shares representing a number other than a whole number of Shares. In the case of
surrender of a Receipt evidencing a number of ADSs representing other than a
whole number of Shares, the Depositary shall cause ownership of the appropriate
whole number of Shares to be delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) issue and deliver to the
person surrendering such Receipt a new Receipt evidencing American Depositary
Shares representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Shares represented by the Receipt so surrendered and remit
the proceeds of such sale (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the Receipt. At the request, risk and expense of any Holder so
surrendering a Receipt, and for the account of such Holder, the Depositary shall
direct the Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held in respect of, and any certificate
or certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such Receipt to the Depositary for delivery
at the Principal Office of the Depositary, and for further delivery to such
Holder. Such direction shall be given by letter or, at the request, risk and
expense of such Holder, by cable, telex or facsimile transmission.
(c) Transfers, Split-Ups and Combinations of Receipts. The Registrar,
subject to the terms and conditions of the Deposit Agreement, shall register
transfers of Receipts on its books upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by the laws of the State of New York and of
the United States of America. Subject to the terms and conditions of the Deposit
Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and, if the Depositary's signature is
by facsimile; the Registrar shall manually countersign, a new Receipt or
Receipts and the Depositary shall deliver the same to or upon the order of the
person entitled thereto evidencing the same aggregate number of ADSs as those
evidenced by the Receipts surrendered. The Depositary, subject to the terms and
conditions of the Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in the Deposit Agreement, execute and, if the Depositary's
signature is by facsimile, the Registrar shall manually countersign, and the
Depositary shall deliver, a new Receipt or Receipts for any authorized number of
ADSs requested, evidencing the same aggregate number of ADSs as the Receipt or
Receipts surrendered.
(d) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the Deposit Agreement and applicable law.
A-3
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the Share
Registrar are closed or if any such action 4s deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the Receipts or Shares are
listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities, or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or any Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
(e) Compliance With Information Requests. Notwithstanding any provision of
the Deposit Agreement or this Receipt, each Holder and Beneficial Owner agrees
to comply with requests from the Company pursuant to Japanese law, the rules and
requirements of The New York Stock Exchange, and any other stock exchange on
which the Shares are, or will be, registered, traded or listed or the Articles
of Incorporation and Share Handling Regulations of the Company, which are made
to provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns American Depositary Shares (and Shares as the case may be)
and regarding the identity of any other person interested in such American
Depositary Shares and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its reasonable efforts to forward upon the
request of the Company, at the Company's expense, any such request from the
Company to the Holders and to forward to the Company any such responses to such
requests received by the Depositary.
(f) Ownership Restrictions. Notwithstanding any provision in the Deposit
Agreement the Company may restrict transfers of the Shares where such transfer
might result in ownership of Shares exceeding limits imposed by applicable law
or the Articles of Incorporation and Share Handling Regulations of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of ADSs where such transfer may result in the total number of Shares represented
by the ADSs owned by a single Holder or Beneficial Owner to exceed any such
limits. The Company may, in its sole discretion, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including, but not
limited to the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of
Incorporation and Share Handling Regulations of the Company.
A-4
(g) Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary with respect-to any
Receipt or any Deposited Securities or ADSs, such tax, or other governmental
charge shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner remaining liable for any deficiency. The Custodian may
refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver Receipts, register the transfer, split-up or combination of ADRs and
(subject to Article (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to release from liability each of the
Depositary, the Custodian, and any of their agents, officers, employees and
Affiliates from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any foreign tax credit obtained for such
Holder and/or Beneficial Owner excluding any claims (a) arising from the
negligence or bad faith of the Depositary, the Custodian and any of their agents
officers, employees and Affiliates (b) relating to any Pre-Release Transaction
not engaged in on behalf of such Holder or Beneficial Owner (c) arising from the
failure of the Depositary, the Custodian and any of their agents, officers,
employees and Affiliates to, reasonably provide information, upon the request of
a Holder or Beneficial Owner, as may be necessary for such Holder or Beneficial
Owner to obtain foreign fax credits with respect to any taxes imposed on the
Deposited Securities.
(h) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares,
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do and (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities and have not been stripped of any rights or entitlements.
Such representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and Depositary shall be authorized, at the cost and expense
of the person depositing Shares, to take any and all actions necessary to
correct the consequences thereof.
A-5
(i) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the appointed agent of the Company for the registration and
transfer of Shares) as the Depositary or the Custodian may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any Receipt or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
by the terms of Section 7.8 of the Deposit Agreement, the delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it or the Registrar receives from Holders and
Beneficial Owners, and (ii) any other information or documents which the Company
may reasonably request and which the Depositary or the Registrar shall request
and receive from any Holder or Beneficial Owner or any person presenting Shares
for deposit or ADSs for cancellation and withdrawal. Nothing herein shall
obligate the Depositary to (i) obtain any information for the Company if not
provided by the Holders or Beneficial Owners or (ii) verify or vouch for the
accuracy of the information so provided by the Holders or Beneficial Owners.
(j) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of $5.00 per 100 ADSs (or portion thereof) so issued
under the terms of the Deposit Agreement (excluding issuances pursuant to
paragraph (iii) and (iv) below);
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities, a fee not in excess of $5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of $2.00 per 100
ADSs (or portion thereof) held for the distribution of cash proceeds (i.e. upon
the sale of rights and other entitlements); no fee shall be payable for the
distribution of cash dividends or the distribution of ADSs pursuant to stock
dividends or other free distributions of shares as long as such fees prohibited
by the exchange upon which the ADSs are listed.
(iv) to any holder of ADRs, a fee not in the excess of $5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
A-6
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited Securities to
or from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at the expense
of the person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs and
ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(k) Title to Receipts. Subject to the limitations contained in the Deposit
Agreement and herein, title to a Receipt (and to each American Depositary Share
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the
contrary, may deem and treat the Holder of a Receipt (that is, the person in
whose name a Receipt is registered on the books of the Depositary) as the
absolute owner thereof for all purposes, and the Depositary shall have no
obligation or be subject to any liability under the Deposit Agreement to any
holder of a Receipt or any beneficial owner unless such holder is the registered
Holder of such Receipt on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner's representative
is the Holder registered on the books of the Depositary.
(l) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar.
A-7
(m) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000 and at the Commission's New York City office located at
Seven World Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
A-8
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties under the Deposit
Agreement, or at the reasonable written request of the Company subject, in all
cases, to Article (24) hereof.
Dated: CITIBANK, N.A.
as Depositary
Countersigned
By: _________________________
By: ________________________ Vice President
Authorized Officer
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
A-9
FORM OF REVERSE OF RECEIPT
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(a) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights, securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts outstanding at the time of
the next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or any of their nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall establish
the ADS Record Date upon the terms described in the Deposit Agreement and either
(i) distribute to the Holders as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of the Deposit Agreement, or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional Shares distributed upon the
Deposited Securities represented thereby. In lieu of delivering fractional ADSs,
the Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
A-10
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) any such
taxes and (b) any such fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit Agreement.
The Depositary shall hold and/or distribute any unsold balance of such property
in accordance with the provisions of the Deposit Agreement.
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the Company
shall give notice thereof to the Depositary at least 30 days prior to the
proposed distribution stating whether or not it wishes such elective
distribution to be made available to Holders and Beneficial Owners of ADSs. Upon
receipt of notice indicating that the Company wishes such elective distribution
to be made available to Holders and Beneficial Owners of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders and Beneficial
Owners of ADSs. The Depositary shall make such elective distribution available
to Holders and Beneficial Owners only if (i) the Depositary shall have
determined that such distribution is reasonably practicable and (ii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7 of the Deposit Agreement. If the above conditions are not satisfied,
the Depositary shall, to the extent permitted by law, distribute to the Holders
and Beneficial Owners, on the basis of the same determination as is made in the
local market in respect of the Shares for which no election is made, either (X)
cash upon the terms described in Section 4.1 of the Deposit Agreement or (Y)
additional ADSs representing such additional Shares upon the terms described in
Section 4.2 of the Deposit Agreement. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described in Section
4.9 of the Deposit Agreement) and establish procedures to enable Holders and
Beneficial Owners to elect the receipt of the proposed dividend in cash or in
additional ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. If a Holder elects to receive the proposed
dividend (X) in cash, the dividend shall be distributed upon the terms described
in Section 4.1 of the Deposit Agreement, or (Y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2 of the Deposit Agreement.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Whenever the Company intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Company shall give
notice thereof to the Depositary at least 30 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have requested that
A-11
such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall proceed with
the sale of the rights as contemplated in Section 4.4(b) of the Deposit
Agreement. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9 of the Deposit Agreement) and establish procedures to distribute
such rights (by means of warrants or otherwise) and to enable the Holders to
exercise the rights (upon payment of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes). The Company shall assist
the Depositary to the extent reasonably necessary in establishing such
procedures. Nothing herein shall obligate the Depositary to make available to
the Holders a method to exercise such rights to subscribe for Shares (rather
than ADSs).
If (i) the Company does not request the Depositary to make the rights
available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.7 of the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem proper. The Company
shall assist the Depositary to the extent reasonably necessary to determine such
legality and practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1 of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders upon
the terms described in Section 4.4(a) of the Deposit Agreement or to arrange for
the sale of the rights upon the terms described in Section 4.4(b) of the Deposit
Agreement, the Depositary shall allow such rights to lapse. The Depositary shall
not be responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in Section 4.4 of the Deposit
Agreement, if registration (under the Securities Act or any other applicable
law) of the rights or the securities to which any rights relate may be required
in order for the Company to offer such rights or such securities to Holders and
to sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders unless and until a registration statement
under the Securities Act covering such offering is in effect. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges. There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights or otherwise.
A-12
Whenever the Company decides to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
Upon receipt of satisfactory documentation and the request of the Company
to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment of the applicable fees and charges of, and expenses incurred
by, the Depositary, and (ii) net of any taxes withheld. The Depositary may
dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7 of the Deposit Agreement, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable or feasible,
the Depositary shall sell or cause such property to be sold in a public or
private sale, after consultation with the Company, at such place or places and
upon such terms as it may deem proper and shall (i) cause the proceeds of such
sale, if any, to be converted into Dollars and (ii) distribute the proceeds of
such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date upon the terms of Section 4.1 of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary may
dispose of such property in any way it deems reasonably practicable under the
circumstances after consultation with the Company.
A-13
(b) Redemption. If the Company intends to exercise any right of redemption
in respect of any of the Deposited Securities, the Company shall give notice
thereof to the Depositary at least 30 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such (i) notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7 of the
Deposit Agreement, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall mail to each Holder a
notice setting forth the intended exercise by the Company of the redemption
rights and any other particulars set forth in the Company's notice to the
Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 of the Deposit Agreement. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the per share amount received by the
Depositary upon the redemption of the Deposited Securities represented by
American Depositary Shares (subject to the terms of Section 4.8 of the Deposit
Agreement and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(c) Fixing of Record Date. Whenever the Depositary shall receive notice of
the fixing of a record date by the Company for the determination of holders of
Deposited Securities entitled to receive any distribution (whether in cash,
Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of or solicitation of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall, after consultation with the Company, fix the
ADS Record Date for the determination of the Holders of Receipts who shall be
entitled to receive such dividend, distribution, give instructions for the
exercise of voting rights at any such meeting, or to give or withhold such
consent, or to receive such notice or solicitation or to otherwise take action,
or to exercise the rights of Holders with respect to such changed number of
Shares represented by each American Depositary Share. The Depositary shall make
reasonable efforts to establish the ADS Record Date as closely as possible to
the applicable record date for the Deposited Securities (if any). Subject to
applicable law and the provisions of Section 4.1 through 4.8 of the Deposit
Agreement and to the other terms and conditions of the Deposit Agreement, only
the Holders of Receipts at the close of business on such ADS Record Date shall
be entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
A-14
(d) Voting of Deposited Securities. Upon receipt by the Depositary from
the Company of an English translation of (i) the Company Notice and (ii) the
Japanese Voting Card, the Depositary shall, as soon as practicable thereafter,
but only upon the timely receipt of such materials in each case, mail to each
Holder of a Receipt as of the ADS Record Date established for such purpose (a) a
copy of the Company Notice together with the Japanese Voting Card, (b) the
Voting Instructions Card and (c) a Depositary's Notice of the Shareholders'
Meeting stating, inter alia, that the Holders of Receipts as of the ADS Record
Date established for such purpose will be entitled, subject to any applicable
provisions of law and of the Articles of Incorporation and Share Handling
Regulations of the Company, to instruct the Depositary as to the exercise of the
voting rights pertaining to the Shares or other Deposited Securities represented
by their American Depositary Shares, and describing the manner in which such
instructions may be given to the Depositary, including an express indication
that in the absence of any instructions from the Holder of a Receipt, such
Holder shall be deemed to have authorized and instructed the Depositary to allow
the Shares or other Deposited Securities represented by such Receipt to be voted
in the manner unvoted Shares are contemplated to be voted in the Japanese Voting
Card. The Company undertakes to deliver to the Depositary the English
translations of the Company Notice and the Japanese Voting Card on a timely
basis. The Company agrees that, notwithstanding anything else contained in the
Deposit Agreement, it shall not knowingly allow any Shares held under the terms
of the Deposit Agreement to be voted without specific instructions of a Holder
if the Company shall not have provided the Company Notice together with the
Japanese Voting Card to the Depositary for distribution to Holders on a timely
basis. Upon the timely delivery to the Depositary by a Holder of a Receipt of a
duly completed Voting Instructions Card, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by such Receipt(s) in accordance with the
instructions set forth in such Voting Instructions Card. To the extent the
aggregate of the American Depositary Shares voted for and against a proposal do
not constitute integral multiples of a Unit, the remainders in excess of the
highest integral multiple of a Unit will be disregarded. In the absence of
timely delivery to the Depositary of a Voting Instructions Card by the Holder of
a Receipt, such Holder shall be deemed, and the Depositary shall deem such
Holder, to have authorized and instructed the Depositary to allow the Shares or
other Deposited Securities represented by such Receipt to be voted in the manner
unvoted Shares are contemplated to be voted in the Japanese Voting Card. There
can be no assurance that Holders generally or any Holder in particular will
receive the Notice of Shareholders' Meeting and the Voting Instructions Card
with sufficient time to enable the Holder to return the Voting Instructions Card
to the Depositary in a timely manner.
(e) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. The Depositary may, with the Company's approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company satisfactory to the Depositary
that such distributions are not in violation of any applicable laws or
regulations, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of Receipt contained
in Exhibit A to the Deposit Agreement, specifically describing such new
A-15
Deposited Securities or corporate change. The Company agrees to, jointly with
the Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled, to such securities upon an averaged
or other practicable basis without regard to any distinctions among such Holders
and distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary shall not be responsible for (1) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(f) Exoneration. Neither the Depositary nor the Company shall be obligated
to do or perform any act which is inconsistent with the provisions of the
Deposit Agreement or this Receipt or incur any liability (i) if the Depositary
or the Company shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement or
this Receipt, by reason of any provision of any present or future law or
regulation of the United States, Japan or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or on account
of the possible criminal or civil penalties or restraint, or by reason of any
provision, present or future of the Articles of Incorporation and Share Handling
Regulations of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions and explosions), (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, this Receipt or
in the Articles of Incorporation and Share Handling Regulations of the Company
or provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement or this Receipt, made available to Holders of American Depositary
Shares or (v) for any consequential or punitive damages for any breach of the
terms of the Deposit Agreement. The Depositary, its controlling persons, its
agents, any Custodian and the Company, its controlling persons (if any) and its
agents may rely and shall be protected in acting upon any written notice,
request or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties. No disclaimer of liability under
the Securities Act is intended by any provision of the Deposit Agreement.
A-16
(g) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or this
Receipt to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or this Receipt to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. Without limitation of the foregoing, neither the Depositary, nor
the Company, nor any of their respective controlling persons, or agents, shall
be under any obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be required
(and no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary). The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the tax status of the Company, for
the credit-worthiness of any third party, for allowing any rights to lapse upon
the terms of the Deposit Agreement or for the failure or timeliness of any
notice from the Company.
(h) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
upon the appointment by the Company of a successor depositary and its acceptance
of such appointment as provided in the Deposit Agreement. The Depositary may at
any time be removed by the Company by written notice of such removal, which
removal shall be effective on the earlier of (i) the 60th day after delivery
thereof to the Depositary (whereupon the Depositary shall be entitled to take
the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. In case at any time the
Depositary acting under the Deposit Agreement shall resign or be removed, the
Company shall use its reasonable best efforts to appoint a successor depositary,
which shall be a bank or trust company having an office in the Borough of
Manhattan, the City of New York. Every successor depositary shall be required by
the Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment under the Deposit Agreement, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor under the Deposit Agreement (other than as
contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
A-17
(i) Amendment, Supplement. This Receipt, the Receipts outstanding at any
time, the provisions of the Deposit Agreement and the form of Receipt attached
thereto and to be issued under the terms thereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for the
American Depositary Shares or Shares to be traded solely in 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 materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such American Depositary Share or Shares, to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
as amended and supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed laws,
rules or regulations. 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 with Such laws, rules or regulations.
A-18
(j) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination as specified by
the Company. If 60 days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the
Company shall have delivered to the Depositary a written notice of the removal
of the Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.7 of the Deposit Agreement and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7 of the Deposit Agreement, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case,
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination of the Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of the Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary under Sections
5.8, 5.9 and 7.6 of the Deposit Agreement.
(k) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
A-19
(l) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of Section 5.10 of the Deposit Agreement, the Depositary,
its Affiliates and their agents, on their own behalf, may own and deal in any
class of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior
to the receipt and cancellation of ADRs pursuant to Section 2.7 of the Deposit
Agreement including ADRs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction"),
subject to the terms and conditions of the Deposit Agreement and any limitations
established by the Depositary. The Depositary may receive ADRs in lieu of Shares
under (i) above and receive Shares in lieu of ADRs under (ii) above in
satisfaction of a Pre-Release Transaction. Each such Pre-Release Transaction
will be (a) subject to a written agreement whereby the Applicant to whom ADSs to
be delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Shares or ADSs that are to be delivered by
the Applicant under such Pre-Release Transaction, (x) assigns all beneficial
right, title and interest in the Shares to the Depositary for the benefit of the
Holders and Beneficial Owners and agrees to hold such Shares in trust for the
Depositary until such Shares are delivered to the Depositary or the Custodian,
(y) unconditionally guarantees to deliver to the Depositary or the Custodian
such Shares and (z) agrees not to take any action with respect to such Shares
that is inconsistent with the transfer of beneficial ownership and to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized (marked to market daily) with cash, United
States government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as the
market conditions may dictate. The Depositary may also set limits with respect
to the number of ADSs and Shares involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant).
A-20
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto __________________________ whose taxpayer identification number
is ___________ and whose address including postal zip code is ______ the within
Receipt and all rights thereunder, hereby irrevocably constituting and
appointing ___________ attorney-in-fact to transfer said Receipt on the books of
the Depositary with full power of substitution in the premises.
Dated: _______________________
Signature: _____________________________
NOTE: The signature to any endorsement
hereon must correspond with the name as
written upon the face of this Receipt in
every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his full title in such
capacity and proper evidence of authority to
act in such capacity, if not on file with
the Depositary, must be forwarded with this
Receipt. All endorsements or assignments of
Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
SIGNATURE GUARANTEED
_____________________________________
A-21
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall
have the meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
Service
Rate
By Whom Paid
(1) Issuance of ADSs upon deposit of Shares (excluding issuances
contemplated by paragraphs (3)(b) and (5) below).
Up to $5.00 per 100 ADSs (or fraction thereof) issued Person
for whom deposits are made or party receiving ADSs
(2) Delivery of Deposited Securities, property and cash against
surrender of ADSs.
Up to $5.00 per 100 ADSs (or fraction thereof) surrendered.
Person surrendering ADSs or making withdrawal.
(3) Distribution of (a) cash dividend or (b) ADSs pursuant to
stock dividends (or other free distribution of stock).
No fee, so long as prohibited by the exchange upon which the
ADSs are listed. Person to whom distribution is made.
(4) Distribution of cash proceeds (i.e. upon sale of rights and
other entitlements).
Up to $2.00 per 100 ADSs held. Person to whom distribution is
made.
(5) Distribution of ADSs pursuant to exercise of rights.
Up to $5.00 per 100 ADSs issued. Person to whom distribution
is made.
B-1
