AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2, dated as of June , 2015 (the “Amendment”), to the Deposit Agreement dated as of July 8, 1994 (as previously amended and as amended hereby, the “Deposit Agreement”), among Nippon Telegraph and Telephone Corporation, incorporated under the laws of Japan (the "Company"), JPMorgan Chase Bank, N.A. (fka Xxxxxx Guaranty Trust Company of New York), as depositary (the “Depositary”), and all holders from time to time of American depositary receipts (“ADRs”) issued thereunder.
W I T N E S S E T H:
WHEREAS, the Company and the Depositary executed the Deposit Agreement for the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR contained in the Deposit Agreement, the Company and the Depositary desire to amend the terms of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Depositary hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all capitalized terms used, but not otherwise defined, herein shall have the meaning given to such terms in the Deposit Agreement.
ARTICLE II
SECTION 2.01. All references in the Deposit Agreement to the term “Deposit Agreement” shall, as of the Effective Date (as herein defined), refer to the Deposit Agreement as amended by this Amendment.
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SECTION 2.02. The ratio of shares per ADS set forth in Section 1(c) of the Deposit Agreement is amended so that as of the first business day after the Effective Date, each ADS represents one Share.
ARTICLE III
SECTION 3.01. All references in the form of ADR to the number of Shares represented by each ADS is amended to reflect that each ADS represents one Share.
SECTION 3.02. The form of ADR, reflecting the amendment set forth in Section 3.01 hereof, is amended and restated to read as set forth as Exhibit A hereto.
ARTICLE IV
SECTION 4.01. Representations and Warranties. The Company represents and warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, will be duly and validly authorized, executed and delivered by the Company, and it and the Deposit Agreement as amended hereby constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or admissibility into evidence of this Amendment or the Deposit Agreement as amended hereby, neither of such agreements need to be filed or recorded with any court or other authority in Japan, nor does any stamp or similar tax or governmental charge need to be paid in Japan on or in respect of such agreements.
ARTICLE V
SECTION 5.01. Effective Date. With respect to all ADRs now and hereinafter outstanding, the amendment set forth in this Amendment shall become effective as of the open of business New York time on July 1, 2015 (the “Effective Date”).
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SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the date hereof, which do not reflect the changes to the form of ADR effected hereby, do not need to be called in for exchange and may remain outstanding until such time as the Holders thereof choose to surrender them for any reason under the Deposit Agreement. The Depositary is authorized and directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to the benefits of the indemnification provisions of Section 16 of the Deposit Agreement in connection with any and all liability it or they may incur as a result of the terms of this Amendment and the transactions contemplated herein.
SECTION 5.04. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to be executed by representatives thereunto duly authorized as of the date set forth above.
NIPPON TELEGRAPH AND TELEPHONE CORPORATION
By: _____________________
Name: Takashi Hiroi
Title: Senior Vice President of the Finance
and Accounting Department
JPMORGAN CHASE BANK, N.A.
By: _____________________
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED
IN AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
THE RIGHT TO HOLD THIS RECEIPT AND TO DIRECT THE VOTING OF AND TO RECEIVE DISTRIBUTIONS WITH RESPECT TO, THE SHARES OF NIPPON TELEGRAPH AND TELEPHONE CORPORATION UNDERLYING THE AMERICAN DEPOSITARY SHARES EVIDENCED BY THIS RECEIPT IS SUBJECT TO NON-JAPANESE OWNERSHIP RESTRICTIONS UNDER APPLICABLE JAPANESE LAW, AS DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. ONLY WHOLE SHARES IN MULTIPLES OF 100 MAY BE WITHDRAWN.
No. of ADSs: | |
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Number
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Each ADS represents
one Share
CUSIP:
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AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
COMMON STOCK
of
NIPPON TELEGRAPH AND TELEPHONE CORPORATION
(Incorporated under the laws of Japan)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the laws of the United States, as depositary hereunder (the "Depositary"), hereby certifies that is the registered owner (a "Holder") of American Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one share of Common Stock (including the rights to receive Shares described in paragraph (1), "Shares" and, together with any other securities, cash or property from time to time held by the Depositary in respect or in lieu of deposited Shares, the "Deposited Securities"), of NIPPON TELEGRAPH AND TELEPHONE CORPORATION, a corporation organized under the laws of Japan (the "Company"), deposited with a Custodian appointed under the Deposit Agreement, as Custodian (subject to paragraph (15), the "Custodian"), under the Deposit Agreement dated as of July 8, 1994 (as amended from time to time, the "Deposit Agreement") among the Company, the Depositary and all Holders from time to time of American Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the reverse hereof) shall be governed by and construed in accordance with the laws of the State of New York. It is understood that notwithstanding any present or future provision of the laws of the State of New York, the rights of holders of Shares and other Deposited Securities, and the duties and obligations of the Company in respect of such holders, shall be governed by the laws of Japan.
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(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated transfer office in the Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a register (the "ADR Register") for the registration, registration of transfer, combination and split-up of ADRs, which at all reasonable times will be open for inspection by Holders and the Company for the purpose of communicating with Holders in the interest of the business of the Company or a matter relating to the Deposit Agreement and (b) facilities for the delivery and receipt of ADRs. Title to this ADR (and to the Deposited Securities represented by the ADSs evidenced hereby), when properly endorsed or accompanied by proper instruments of transfer, is transferable by delivery with the same effect as in the case of a negotiable instrument under the laws of the State of New York; provided that the Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this ADR is registered on the ADR Register as the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other ADRs or combined with other ADRs into one ADR, evidencing the same number of ADSs evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon surrender of this ADR at the Transfer Office properly endorsed or accompanied by proper instruments of transfer and duly stamped as may be required by applicable law; provided that the Depositary may close the ADR Register at any time or from time to time when deemed expedient by it or requested by the Company.
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Dated: |
JPMORGAN CHASE BANK, N.A.,
as Depositary
By ______________________________
Authorized Officer
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The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
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(19) Waiver etc. EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRs) HEREBY (1) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY) AND (2) AGREES THAT NEITHER THE COMPANY NOR THE DEPOSITARY NOR ANY OF THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.
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