Exhibit (a)(i)
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AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
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TDK CORPORATION
(TDK Kabushiki Kaisha)
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
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Dated as of [Date], 2009
ARTICLE I
DEFINITIONS....................................................................................................... 2
SECTION 1.01 Definitions................................................................... 2
SECTION 1.02 Effective Date................................................................ 2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................................................... 2
SECTION 2.01 Deposit Agreement............................................................. 2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners....................... 3
SECTION 2.03 Deregistration of Securities.................................................. 3
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................................................... 4
SECTION 3.01 ADR Amendment................................................................. 4
SECTION 3.02 Deregistration of Securities.................................................. 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................................................... 6
SECTION 4.01 Representations and Warranties................................................ 6
ARTICLE V
MISCELLANEOUS..................................................................................................... 7
SECTION 5.01 New ADRs...................................................................... 7
SECTION 5.02 Notice of Amendment to Holders of ADSs........................................ 7
SECTION 5.03 Indemnification............................................................... 8
SECTION 5.04 Ratification.................................................................. 8
SECTION 5.05 Governing Law................................................................. 8
SECTION 5.06 Counterparts.................................................................. 8
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as
of [Date], 2009 (the "Amendment"), by and among TDK CORPORATION (TDK Kabushiki
Kaisha), a company organized and existing under the laws of Japan (the
"Company"), Citibank, N.A., a national banking association organized under the
laws of the United States of America (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Shares ("ADSs")
issued and outstanding under the Second Amended and Restated Deposit Agreement,
dated as of August 1, 2002 (the "Deposit Agreement").
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Second
Amended and Restated Deposit Agreement, dated as of August 1, 2002, for the
creation of American Depositary Shares representing the Shares (as defined in
the Deposit Agreement) so deposited and for the execution and delivery of
American Depositary Receipts ("ADRs") in respect of the certificated American
Depositary Shares, which were listed for trading on The New York Stock Exchange,
Inc.;
WHEREAS, the Company has delisted the ADSs from The New York Stock
Exchange and has filed a Form 15F with the U.S. Securities and Exchange
Commission ("SEC") in order to seek to terminate the registration of its
securities under the United States Securities and Exchange Act of 1934, as
amended ("Exchange Act"), and its obligation to file with the SEC, or submit to
the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act;
WHEREAS, the Company desires to amend the Deposit Agreement, the ADRs
currently outstanding and the form of ADR annexed to the Deposit Agreement to
reflect such change, and (y) to give notice thereof to all Holders (as defined
in the Deposit Agreement) of ADSs; and
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company and
the Depositary deem it necessary and desirable to amend the Deposit Agreement,
the ADRs currently outstanding and the form of ADR annexed to the Deposit
Agreement as Exhibit A for the purposes set forth herein;
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, the ADRs currently outstanding and
the form of ADR annexed as Exhibit A to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean the date
set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to
the terms "Deposit Agreement" shall, as of the Effective Date, refer to the
Second Amended and Restated Deposit Agreement, dated as of August 1, 2002, as
supplemented by the letter agreement, dated November 16, 2007 and as amended by
this Amendment and as further amended and supplemented after the Effective Date.
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SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners. From
and after the Effective Date, the amendments to the Deposit Agreement effected
hereby shall be binding on all Holders and Beneficial Owners of ADSs issued and
outstanding as of the Effective Date and on all Holders and Beneficial Owners of
ADSs issued after the Effective Date. Notwithstanding anything contained herein,
in the Deposit Agreement or in any ADR, from and after the Effective Date any
reference in the Deposit Agreement, any ADR or in the form of ADR attached to
the Deposit Agreement to Holders and Beneficial Owners of Receipts, ADRs or
American Depositary Receipts shall include, unless a reasonable interpretation
of the context otherwise mandates, Holders and Beneficial Owners of ADSs.
SECTION 2.03 Deregistration of Securities. To reflect the application by
the Company to terminate the registration of its securities under the Exchange
Act, the Deposit Agreement is hereby amended as of the Effective Date by
deleting Section 4.12 in its entirety and inserting the following in its stead:
"Section 4.12 Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC, certain reports that can be
retrieved from the SEC's internet website at xxx.xxx.xxx, and can be
inspected and copied at the public reference facilities maintained by the
SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a
Form 15F ("Form 15F") with the SEC, which has suspended the Company's duty
under the Exchange Act to file or submit the reports required under
Sections 13(a) or 15(d) of the Exchange Act. Upon the effectiveness of
Form 15F, the Company's duty to file or submit reports under Sections
13(a) or 15(d) of the Exchange Act will terminate. Pursuant to Rule
12g3-2(b)(1), the Company is exempt from the reporting obligations of the
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Exchange Act. In order to satisfy the conditions of Rule 12g3-2(b) the
Company intends to publish the English translations of information
contemplated in Rule 12g3-2(b)(2)(i) under the Exchange Act on its
internet website or through an electronic information delivery system
generally available to the public in the Company's primary trading market.
The Company has specified in Form 15F the internet website or the
electronic information delivery system on which it intends to publish such
information. The information so published by the Company cannot be
retrieved from the SEC's internet website, and cannot be inspected or
copied at the public reference facilities maintained by the SEC. If the
Form 15F is not declared effective, the Company will again be subject to
the periodic reporting requirements of the Exchange Act and will be
required to file with the SEC, and submit to the SEC, certain reports that
can be retrieved from the SEC's internet website at xxx.xxx.xxx, and can
be inspected and copied at the public reference facilities maintained by
the SEC."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of the
form of ADR attached as Exhibit A to the Deposit Agreement and in each of the
ADRs issued and outstanding under the terms of the Deposit Agreement is hereby
amended as of the Effective Date by deleting such sentence in its entirety and
inserting the following in its stead:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts (herein called the "Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Second Amended and Restated
Deposit Agreement, dated as of August 1, 2002, as supplemented by letter
agreement, dated November 16, 2007 and as supplemented and amended by Amendment
No. 1 To Second Amended and Restated Deposit Agreement, dated as of [Date],
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2009 (as so amended and supplemented, and as further amended and supplemented
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 American
Depositary Shares evidenced by ADRs issued thereunder."
SECTION 3.02 Deregistration of Securities. To reflect the application by
the Company to terminate the registration of its securities under the Exchange
Act, the form of ADRs attached as Exhibit A to the Deposit Agreement and each of
the ADRs issued and outstanding under the terms of the Deposit Agreement is
hereby amended as of the Effective Date by deleting paragraph (13) in its
entirety and inserting the following in its stead:
"Section (13) Available Information. The Company has been subject to
the periodic reporting requirements of the Exchange Act, and has filed
with the SEC, and submitted to the SEC certain reports that can be
retrieved from the SEC's internet website at xxx.xxx.xxx, and can be
inspected and copied at the public reference facilities maintained by the
SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a
Form 15F ("Form 15F") with the SEC, which has suspended the Company's duty
under the Exchange Act to file or submit the reports required under
Sections 13(a) or 15(d) of the Exchange Act. Upon the effectiveness of
Form 15F, the Company's duty to file or submit reports under Sections
13(a) or 15(d) of the Exchange Act will terminate. Pursuant to Rule
12g3-2(b)(1), the Company is exempt from the reporting obligations of the
Exchange Act. In order to satisfy the conditions of Rule 12g3-2(b) the
Company intends to publish English translations of the information
contemplated in Rule 12g3-2(b)(2)(i) under the Exchange Act on its
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internet website or through an electronic information delivery system
generally available to the public in the Company's primary trading market.
The Company has specified in Form 15F the internet website or the
electronic information delivery system on which it intends to publish such
information. The information so published by the Company cannot be
retrieved from the SEC's internet website, and cannot be inspected or
copied at the public reference facilities maintained by the SEC. If the
Form 15F is not declared effective, the Company will again be subject to
the periodic reporting requirements of the Exchange Act and will be
required to file with the SEC, and submit to the SEC, certain reports that
can be retrieved from the SEC's internet website at xxx.xxx.xxx, and can
be inspected and copied at the public reference facilities maintained by
the SEC."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in Japan,
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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 need be paid in Japan on
or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or split
up of existing ADRs, shall be substantially in the form of the specimen ADR
attached as Exhibit A hereto. However, 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 5.02 Notice of Amendment to Holders of ADSs. The Depositary is
hereby directed to send notices informing the Holders of ADSs (i) of the terms
of this Amendment, (ii) of the Effective Date of this Amendment, and (iii) that
the Holder of ADRs shall be given the opportunity, but that it is unnecessary,
to substitute their ADRs with new ADRs reflecting the changes effected by this
Amendment, as provided in Section 5.01 hereof. and (iv) that Holders of
Uncertificated ADSs do not need to take any action in connection with the
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Amendment, and (v) that copies of this Amendment may be retrieved from the
Commission's website at xxx.xxx.xxx and may be obtained from the Depositary and
the Company upon request. The notice to Holders of ADSs shall be substantially
in the form of Exhibit B attached hereto.
SECTION 5.03 Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein to the extent
contemplated in Section 5.8 of the Deposit Agreement.
SECTION 5.04 Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.06 Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same 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.
TDK CORPORATION (TDK Kabushiki Kaisha)
By:
-----------------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
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Name: Xxxxxx Xxxxx
Title: Director
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EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares (each
American Depositary Share
representing one (1) Fully Paid
share of common stock)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES OF COMMON STOCK
of
TDK CORPORATION
(TDK 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 (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited shares of
common stock, including evidence of rights to receive such shares of common
stock (the "Shares"), of TDK Corporation, a company organized under the laws of
Japan (the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents one (1) Share deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank, N.A., Tokyo Branch (the "Custodian"). The
ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and
VI of the Deposit Agreement. The Depositary's Principal Office is located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts (herein called the "Receipts"), all issued
and to be issued upon the terms and conditions set forth in the Second Amended
and Restated Deposit Agreement, dated as of August 1, 2002, as supplemented by
letter agreement, dated November 16, 2007 and as supplemented and amended by
Amendment No. 1 To Second Amended and Restated Deposit Agreement, dated as of
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[Date], 2009 (as so amended and supplemented, and as further amended and
supplemented 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 American Depositary Shares evidenced by ADRs issued thereunder. The Deposit
Agreement sets forth the rights and obligations of Holders and Beneficial Owners
of ADRs 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 with the Custodian. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms and conditions of the Deposit Agreement, shall be deemed for all purposes
to (a) be a party to and bound by the terms of the Deposit Agreement and
applicable ADR(s), 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 the Deposit Agreement and the applicable ADR(s), 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 the Deposit Agreement and the
applicable ADR(s), the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Incorporation of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Incorporation, 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 ADSs
into DTC. Each Beneficial Owner of ADSs 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 ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, this ADR has been
properly endorsed in blank or is accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of the
ADSs has executed and delivered 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 the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this ADR, of the Deposit Agreement,
of the Company's Articles of Incorporation, of any applicable laws and the rules
of the Japan Securities Depositary Center, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
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Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Articles of
Incorporation of the Company, of any applicable laws and the rules of the Japan
Securities Depositary Center, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Unit of Shares. In the case of the Delivery to it of ADSs representing a
number other than a Unit or integral number of Units of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares constituting a
Unit or integral number of Units to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
Shares and inform the Holder of the additional number of ADSs required to be
delivered in order to constitute an additional Unit of Shares, or (ii) to the
extent reasonably practicable, sell or cause to be sold the Shares represented
by the ADSs so surrendered that represent a number of Shares in excess of a Unit
or integral number of Units, 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 ADSs. Notwithstanding anything
else contained in this ADR or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of the Depositary of (i) any cash dividends or
cash distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so surrendering ADSs
represented by this ADR, 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 by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
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accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR 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 ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADRs in particular
instances may be refused, or the registration of transfer of ADRs 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 Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
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Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24) hereof. Notwithstanding any
provision of the Deposit Agreement or this ADR to the contrary, Holders 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, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable Japanese law, the rules and requirements of the Tokyo
Stock Exchange, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Incorporation of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
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 (including,
without limitation, the Foreign Exchange and Foreign Trade Laws of Japan, as
amended from time to time).
(6) Ownership Restrictions. Notwithstanding any other provision of this
ADR or of 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 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 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 ADSs, 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 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 of the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or
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 hereof remaining
liable for any deficiency. The Custodian may refuse the deposit of Shares and
the Depositary may refuse to issue ADSs, to deliver ADRs, to register the
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transfer, split-up or combination of ADRs and (subject to paragraph (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 indemnify the Depositary, the Company, the Custodian, and any of their
agents, officers, employees and Affiliates for, and hold each of them harmless
from, any claims with respect to taxes (including applicable interest and
penalties thereon) arising from any tax benefit obtained for such Holder and/or
Beneficial Owner.
(8) 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 are owned by a non-resident of Japan for purposes
of the Foreign Exchange and Foreign Trade Law of Japan, as amended, (ii) such
Shares and the certificates therefor are duly authorized, validly issued, fully
paid, non-assessable and legally obtained by such person, (iii) all preemptive
(and similar) rights, if any, with respect to such Shares have been validly
waived or exercised, (iv) the person making such deposit is duly authorized so
to do, (v) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, (vi) the
Shares presented for deposit are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities (except as contemplated in Section 2.12), and
(vii) 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 ADSs in respect thereof
and the transfer of such ADSs. 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.
(9) 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, the terms of
the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, 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 Share
Registrar) 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 under the Deposit Agreement. The Depositary and
the Registrar, as applicable, may withhold the execution or delivery or
registration of transfer of any ADR or the distribution or sale of any dividend
or other distribution of rights or of the proceeds thereof or, to the extent not
limited by paragraph (24) 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.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
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(i) to any person to whom ADSs are issued upon the deposit of Shares, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof)
so issued under the terms of the Deposit Agreement (excluding
issuances pursuant to paragraphs (iii) and (v) below);
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or fraction thereof) so surrendered;
(iii) no Fee shall be payable upon distribution of (a) cash dividends or
(b) ADSs pursuant to stock dividends (or other free distributions of
stock) so long as the charging of such fee is prohibited by the
exchange upon which the ADSs are listed. If charging of such fees is
not prohibited, the fees specified in (i) above shall be payable in
respect of ADS distributions pursuant to stock dividends (or other
free distributions of stock) and the fees specified in (iv) below
shall be payable in respect of distributions of cash;
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per 100
ADSs (or fraction thereof) held for the distribution of cash
proceeds (i.e., upon the sale of rights and other entitlements); and
(v) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00 per
100 ADSs (or fraction thereof) issued upon the exercise of rights to
purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay 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 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;
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(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 paragraph (22) of this ADR. 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.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that the ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the contrary, the
Depositary and the Company may deem and treat the Holder of this ADR (that is,
the person in whose name this ADR is registered on the books of the Depositary)
as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the
Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner
unless such holder is the Holder of this ADR registered 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.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the SEC, and
submitted to the SEC certain reports that can be retrieved from the SEC's
internet website at xxx.xxx.xxx, and can be inspected and copied at the public
reference facilities maintained by the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000. The Company has filed a Form 15F ("Form 15F") with the SEC, which
has suspended the Company's duty under the Exchange Act to file or submit the
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reports required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of Form 15F, the Company's duty to file or submit reports under
Sections 13(a) or 15(d) of the Exchange Act will terminate. Pursuant to Rule
12g3-2(b)(1), the Company is exempt from the reporting obligations of the
Exchange Act. In order to satisfy the conditions of Rule 12g3-2(b) the Company
intends to publish English translations of the information contemplated in Rule
12g3-2(b)(2)(i) under the Exchange Act on its internet website or through an
electronic information delivery system generally available to the public in the
Company's primary trading market. The Company has specified in Form 15F the
internet website or the electronic information delivery system on which it
intends to publish such information. The information so published by the Company
cannot be retrieved from the SEC's internet website, and cannot be inspected or
copied at the public reference facilities maintained by the SEC. If the Form 15F
is not declared effective, the Company will again be subject to the periodic
reporting requirements of the Exchange Act and will be required to file with the
SEC, and submit to the SEC, certain reports that can be retrieved from the SEC's
internet website at xxx.xxx.xxx, and can be inspected and copied at the public
reference facilities maintained by the SEC.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: ____________________________ By: ____________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) 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 in respect of any Deposited Securities, or
receives proceeds from the sale of any Deposited Securities or of any
entitlements held in respect of Deposited Securities under the terms of the
Deposit Agreement, the Depositary will (i) 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 cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii)
distribute promptly the amount thus received (net of (a) 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
integral 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 ADSs then 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.
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 their respective nominees. Upon receipt of
confirmation of the deposit from the Custodian, the Depositary shall, subject to
and in accordance with the Deposit Agreement, establish the ADS Record Date and
either (i) the Depositary shall distribute to the Holders as of the ADS Record
Date in proportion to the integral 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 (including, without limitation, (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes), 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 interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares or ADSs, as the case may be, represented by the aggregate of
such fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
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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) taxes and
(b) fees and charges of, and the 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.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS Record Date according to paragraph (16) and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the case
of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall, to the extent permitted by law, distribute to Holders, on
the basis of the same determination as is made in Japan in respect of the Shares
for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
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described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not timely
request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by 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 and private sale) as it may
deem practicable. 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 hereof and of the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described above,
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 ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, 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 (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. Because the rights may not be issued in negotiable form,
a liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights. 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
ADSs 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.
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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 to exercise such rights. Nothing
herein or in the Deposit Agreement 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.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall 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 the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, 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 or net 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 the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable 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 hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms 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 dollar equivalent of the
per share amount received by the Depositary (adjusted to reflect the
ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (subject to the terms 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.
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(16) 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
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies 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 fix a record date ("ADS Record Date") for the
determination of the Holders of ADRs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, 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 ADS. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADRs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distributions, to give such
instructions, to receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy in accordance with Section
4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company
in writing in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been received by the Depositary at
least thirty (30) days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist, distribute to
Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of
consent or proxies, (b) a statement that the Holders at the close of business on
the ADS Record Date will be entitled, subject to any applicable law, the
provisions of the Deposit Agreement, the Company's Articles of Incorporation and
the provisions of or governing Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs and (c) a brief statement
as to the manner in which such voting instructions may be given. Voting
instructions may be given only in respect of ADSs representing an integral
number of Deposited Securities. Upon the timely receipt of voting instructions
from a Holder of ADSs as of the ADS Record Date in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of the Deposit Agreement, the Articles of
Incorporation of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs in accordance with such instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Deposited
A-14
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of the items set forth in such
instructions. Deposited Securities represented by ADSs for which no timely
voting instructions are received by the Depositary from the Holder shall not be
voted. Notwithstanding anything else contained herein, the Depositary shall, if
so requested in writing by the Company, represent all Deposited Securities
(whether or not voting instructions have been received in respect of such
Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of shareholders. Notwithstanding
anything else contained in the Deposit Agreement or this ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to take any
and all actions reasonably necessary to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver
to the Depositary an opinion of U.S. counsel addressing any actions requested to
be taken if so requested by the Depositary. There can be no assurance that
Holders generally or any Holder in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
(18) 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 of 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 ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs 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
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional ADRs as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding ADRs to be exchanged for new ADRs, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of ADR contained in this Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. 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 satisfactory legal documentation contemplated in the Deposit
Agreement, 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 the Deposit Agreement. 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 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.
A-15
(19) 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 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 and this ADR, 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 possible criminal or
civil penalties or restraint, or by reason of any provision, present or future,
of the Articles of Incorporation of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God, acts of terrorism or
war or other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Articles of Incorporation 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, made available to Holders of ADSs 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 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 or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. 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 ownership of ADSs, Shares or
Deposited Securities, 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.
A-16
(21) 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, or (ii) upon the appointment 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, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its 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 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 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 ADRs and such other
information relating to ADRs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide 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.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph (22), the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement 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 the
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 ADRs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADRs. 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 (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to 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
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADR and receive therefor the Deposited Securities represented
A-17
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 an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and this ADR at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and this ADR 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.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If sixty
(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 herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (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 Holders' ADR(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADRs referred to in
paragraph (2) hereof and in 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 ADR. If any ADRs shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
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 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 ADRs 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 ADR, 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 whose
ADRs 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 ADRs, the Deposited Securities and the ADSs, 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 an ADR, 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 as set forth in the Deposit Agreement.
A-18
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR 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 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.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), 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. The Depositary may issue ADSs
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. 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 of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are 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) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. 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 it
deems appropriate. 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 earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
A-19
(26) Disclosure of Interests.
(a) Without prejudice to the requirements of applicable law concerning
disclosure of beneficial ownership of Shares, any Beneficial Owner (as defined
below) of ADSs who becomes, or ceases to be, directly or indirectly, the
Beneficial Owner of more than 5% of all outstanding Shares (whether such
interest is held in whole or only in part through ADSs) shall, within five days
(excluding Saturdays, Sundays and legal holidays in Japan) following such event,
send written notice to the Depositary at its Transfer Office and to the Company
at its principal office in Japan at 0-00-0 Xxxxxxxxxx, Xxxx-xx, Xxxxx 000-0000
Xxxxx; Attention: General Affairs Department, containing the following
information:
(i) the name, address and nationality of such Beneficial Owner and all
other persons by whom or on whose behalf such Shares have been
acquired or are held; the number of ADSs and total number of Shares
(including ADSs) beneficially owned, directly or indirectly, by such
Beneficial Owner immediately before and immediately after the event
requiring notification; the names and addresses of any person other
than the Depositary, the Custodian, or either of their nominees,
through whom such beneficially owned Shares are held, or in whose
name such Shares are registered in the Company's shareholders'
register, and the respective numbers of Shares beneficially held
through each such person; the date or dates of acquisition of the
beneficial interest in such Shares, and the number of any Shares in
which such Beneficial Owner has the right to acquire, directly or
indirectly, beneficial ownership and material information as to such
right(s) of acquisition; and
(ii) the names, addresses and nationalities of any persons with whom such
Beneficial Owner is acting as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding,
voting or disposing of a beneficial interest in Shares; and the
number of Shares being acquired, held, voted or disposed of as a
result of such association (being the total number held by such
group).
Any Beneficial Owner of more than 5% of all outstanding Shares shall
promptly notify the Depositary and the Company as provided above of any material
change in the information previously notified, including, without limitation, a
change of more than 1% of the percentage of total Shares to which the beneficial
ownership relates.
As used herein, the "Beneficial Owner" of Shares means a person who,
directly or indirectly, through any contract, trust, arrangement, understanding,
relationship, or otherwise, has an interest in any Shares, including any Shares
which underlie any ADS issued hereunder (including having the right to exercise
or control the exercise of any right conferred by the holding of such Shares or
the power to vote or to direct voting or the power to dispose or to direct
disposition), and includes any Holder of an ADS.
(b) Without prejudice to the requirements of applicable law and the
provisions of the Company's Articles of Incorporation, any Beneficial Owner of
Shares shall, if so requested in writing by the Company, provide such
A-20
information with respect to the beneficial ownership of Shares (including not
only Shares underlying ADSs, but also any other Shares in which such Beneficial
Owner has an interest and including any security convertible into, exchangeable
for or exercisable for Shares) by such Beneficial Owner as is requested by the
Company in writing within the time specified by the Company. Such Beneficial
Owner shall provide such information to the Company. Copies of any such request
and responses shall be contemporaneously sent to the Depositary.
(c) If the Company notifies the Depositary in writing that a particular
Beneficial Owner has not complied with subsections (a) or (b) above, the
Depositary shall use commercially reasonable efforts not to vote or cause to be
voted any Shares held by it or any Custodian as to which such Beneficial Owner
of such Shares shall have failed to comply with the provisions of subsections
(a) or (b) above but only to the extent that such Beneficial Owner is the
Beneficial Owner of ADR(s).
A-21
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
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 ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:
--------------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument 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/her 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 ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' shares of TDK Corporation common stock and as
such do not entitle the holders thereof to the same per-share entitlement as
other shares of TDK Corporation common stock (which are 'full entitlement'
shares of TDK Corporation common stock) issued and outstanding at such time. The
ADSs represented by this ADR shall entitle holders to distributions and
entitlements identical to other ADSs when the shares of TDK Corporation common
stock represented by such ADSs become 'full entitlement' shares of TDK
Corporation common stock."]
A-22
EXHIBIT B
NOTICE TO HOLDERS
NOTICE OF DEREGISTRATION
To the Holders of American Depositary Shares ("ADSs") representing the Deposited
Securities of the Company
--------------------------------------------------------------------------------
Company: TDK CORPORATION (TDK Kabushiki Kaisha), a company
incorporated under the laws of Japan (the "Company").
--------------------------------------------------------------------------------
Depositary: Citibank, N.A.
--------------------------------------------------------------------------------
Custodian: Citibank, N.A., Tokyo Branch
--------------------------------------------------------------------------------
Deposited Securities: Common Shares of the Company ("Shares").
--------------------------------------------------------------------------------
ADS CUSIP No.: 872351 40 8
--------------------------------------------------------------------------------
Shares to ADS Ratio: 1 Share to 1 ADS.
--------------------------------------------------------------------------------
Deposit Agreement: Second Amended and Restated Deposit Agreement, dated as of
August 1, 2002, by and among the Company, the Depositary
and the Holders and Beneficial Owners of ADSs evidenced by
ADRs issued thereunder as supplemented and amended through
the date hereof (as so supplemented and amended, the
"Deposit Agreement")..
--------------------------------------------------------------------------------
Effective Date: [Date], 2009.
--------------------------------------------------------------------------------
The Company has filed a Form 15F with the Securities and Exchange Commission
("SEC") to terminate the registration of its securities under the Securities
Exchange Act of 1934, as amended ("Exchange Act"). The filing of Form 15F
suspends the Company's obligations to file with the SEC reports pursuant to the
Exchange Act. Absent an objection from the SEC, the deregistration of the
Company's securities and the termination of the Company's obligations under the
Exchange Act will only become effective upon the expiration of 90 days after the
Company filed its Form 15F, or such shorter period as the SEC may determine. A
copy of the Company's Form 15F may be retrieved from the SEC's website at
xxx.xxx.xxx.
The Company and the Depositary have agreed to amend the Deposit Agreement (the
"Amendment") to reflect the application by the Company to de-register its
securities and terminate its reporting obligations under the Exchange Act. A
draft copy of the Amendment has been filed with the SEC under cover of
Registration Statement on Form F-6 (the "F-6 Registration Statement"). The F-6
Registration Statement has become effective immediately upon the filing of such
B-1
F-6 Registration Statement with the SEC (the "Effective Date"). As of the
Effective Date, the Deposit Agreement and all ADRs have been amended to reflect,
inter alia, the application by the Company to de-register its securities, and to
terminate its reporting obligations, under the Exchange Act.
By continuing to hold any outstanding ADS issued under the Deposit Agreement
after the Effective Date, you will be deemed to have agreed to be bound by the
terms of the Deposit Agreement as amended by the Amendment. The Depositary shall
arrange to have new American Depositary Receipts printed that reflect the
changes effected by the Amendment. However, American Depositary Receipts issued
prior to the Effective Date do not need to be surrendered for exchange. If you
hold ADSs in uncertificated form, you do not need to take any action.
Copies of the Deposit Agreement and the form of Amendment are available from the
SEC's website at xxx.xxx.xxx and from the Depositary's office located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. If you have any questions regarding
the Amendment, please call Citibank, N.A. -- ADS Holder Services at
1-877-CITI-ADR.
Citibank, N.A., as Depositary
_________________, 2009
B-2
