Exhibit 1
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JAPAN AIRLINES CORPORATION
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _______________, 2004
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.........................................................2
SECTION 1.1 American Depositary Shares...................................2
SECTION 1.2 Article; Section.............................................2
SECTION 1.3 Commission...................................................2
SECTION 1.4 Custodian....................................................2
SECTION 1.5 Delivery; Deposit; Surrender; Transfer; Withdraw.............3
SECTION 1.6 Deposit Agreement............................................3
SECTION 1.7 Depositary; Corporate Trust Office...........................3
SECTION 1.8 Deposited Securities.........................................4
SECTION 1.9 Dollars......................................................4
SECTION 1.10 Foreign Registrar............................................4
SECTION 1.11 Issuer.......................................................4
SECTION 1.12 Owner........................................................4
SECTION 1.13 Receipts.....................................................4
SECTION 1.14 Registrar....................................................5
SECTION 1.15 Restricted Securities........................................5
SECTION 1.16 Securities Act...............................................5
SECTION 1.17 Shares.......................................................5
SECTION 1.18 Unit.........................................................6
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS..........................................6
SECTION 2.1 Form and Transferability of Receipts.........................6
SECTION 2.2 Deposit of Shares............................................7
SECTION 2.3 Execution and Delivery of Receipts...........................9
SECTION 2.4 Transfer of Receipts; Combination and
Split-up of Receipts........................................10
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares..............11
SECTION 2.6 Limitations on Execution and Delivery,
Transfer and Surrender of Receipts..........................12
SECTION 2.7 Lost Receipts, etc..........................................14
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts........14
SECTION 2.9 Pre-Release of Receipts.....................................14
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS..............16
SECTION 3.1 Filing Proofs, Certificates and Other Information...........16
SECTION 3.2 Liability of Owner for Taxes................................16
SECTION 3.3 Warranties on Deposit of Shares.............................17
SECTION 3.4 Disclosure of Ownership.....................................17
SECTION 3.5 Ownership Restrictions......................................18
ARTICLE 4. THE DEPOSITED SECURITIES...........................................19
SECTION 4.1 Cash Distributions..........................................19
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.............19
SECTION 4.3 Distributions in Shares.....................................20
SECTION 4.4 Rights......................................................21
SECTION 4.5 Conversion of Foreign Currency..............................23
SECTION 4.6 Fixing of Record Date.......................................25
SECTION 4.7 Voting of Deposited Securities..............................25
SECTION 4.8 Changes Affecting Deposited Securities......................27
SECTION 4.9 Reports.....................................................28
SECTION 4.10 Lists of Owners.............................................28
SECTION 4.11 Withholding.................................................28
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER......................29
SECTION 5.1 Maintenance of Office and Transfer Books
by the Depositary...........................................29
SECTION 5.2 Prevention or Delay in Performance by the
Depositary or the Issuer....................................30
SECTION 5.3 Obligations of the Depositary, the Custodian
and the Issuer..............................................31
SECTION 5.4 Resignation and Removal of the Depositary...................32
SECTION 5.5 The Custodians..............................................33
SECTION 5.6 Notices and Reports.........................................34
SECTION 5.7 Distribution of Additional Shares, Rights, etc..............35
SECTION 5.8 Indemnification.............................................36
SECTION 5.9 Charges of Depositary.......................................38
SECTION 5.10 Retention of Depositary Documents...........................40
SECTION 5.11 Exclusivity.................................................40
SECTION 5.12 List of Restricted Securities Owners........................40
SECTION 5.13 Change in Unit..............................................41
ARTICLE 6. AMENDMENT AND TERMINATION..........................................41
SECTION 6.1 Amendment...................................................41
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SECTION 6.2 Termination.................................................41
ARTICLE 7. MISCELLANEOUS......................................................43
SECTION 7.1 Counterparts................................................43
SECTION 7.2 No Third Party Beneficiaries................................43
SECTION 7.3 Severability................................................43
SECTION 7.4 Holders and Owners as Parties; Binding Effect...............44
SECTION 7.5 Notices.....................................................44
SECTION 7.6 Governing Law...............................................45
SECTION 7.7 Compliance with U.S. Securities Laws........................45
SECTION 7.8 Submission to Jurisdiction; Appointment of
Agent for Service of Process................................45
SECTION 7.9 Waiver of Immunities........................................46
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ___________, 2004 among JAPAN AIRLINES
CORPORATION, incorporated under the laws of Japan (herein called the Issuer),
THE BANK OF NEW YORK, a New York banking corporation (herein called the
Depositary), and all Owners and holders from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1 DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article" or
"Articles" or to a "Section" or "Sections", such references shall mean an
article or articles or a section or sections of this Deposit Agreement, unless
otherwise required by the context.
SECTION 1.3 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.4 Custodian.
The term "Custodian" shall mean the Tokyo office of Sumitomo Mitsui
Banking Corporation, as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or
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custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.5 Delivery; Deposit; Surrender; Transfer; Withdraw.
The terms "deliver", "deposit", "surrender", "transfer" or "withdraw",
when used (i) with respect to Shares: (a) in the case of book-entry Shares,
shall refer to an entry or entries in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities,
or (b) in the case of physical Share certificates, to the physical delivery,
deposit, withdrawal or transfer of certificates representing the Shares and (ii)
with respect to American Depositary Shares evidenced by Receipts, (a) in the
case of American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records maintained by (1) the Depositary, (2) The
Depository Trust Company or its nominee, or (3) institutions that have accounts
with The Depository Trust Company, as applicable, or (b) otherwise, shall refer
to the physical delivery, deposit, surrender, transfer or withdrawal of such
American Depositary Shares evidenced by Receipts.
SECTION 1.6 Deposit Agreement.
The term "Deposit Agreement" shall mean this Deposit Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.7 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and any successor as depositary hereunder. The term "Corporate Trust
Office", when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Deposit Agreement is 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000.
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SECTION 1.8 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.5.
SECTION 1.9 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.10 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.11 Issuer.
The term "Issuer" shall mean Japan Airlines Corporation, incorporated
under the laws of Japan, and its successors.
SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares, as amended from time to time in
accordance with the provisions hereof.
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SECTION 1.14 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction or chain of transactions not involving any public offering or which
are subject to resale limitations under Regulation D under that Act or both, or
which are held by an officer, director (or persons performing similar functions)
or other affiliate of the Issuer, or which would require registration under the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States or Japan, or under a shareholder agreement or the
Articles of Association and By-laws of the Issuer.
SECTION 1.16 Securities Act.
The term "Securities Act" shall mean the United States Securities Act of
1933, as from time to time amended.
SECTION 1.17 Shares.
The term "Shares" shall mean ordinary shares in registered form of the
Issuer, heretofore validly issued and outstanding and fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares or interim
certificates representing such Shares.
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SECTION 1.18 Unit.
The term "Unit" shall mean 1,000 Shares or such other number of Shares as
the Articles of Incorporation of the Issuer may provide as "Unit of Shares" for
the purpose of the Japanese Commercial Code, as such Articles of Incorporation
may be amended from time to time.
ARTICLE 2 FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform
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with any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; under the laws of the State of New York; provided,
however, that the Issuer and the Depositary, notwithstanding any notice to the
contrary, may treat the Owner thereof as the absolute owner thereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes. Neither the Issuer nor the Depositary shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.2 Deposit of Shares.
The Depositary shall not accept Shares for deposit to the extent that,
after giving effect to a deposit, the total number of Shares on deposit under
this Deposit Agreement would exceed the Facility Ceiling. "Facility Ceiling"
means a number of Shares of which the Depositary has received written notice
from the Issuer. The Issuer may establish a Facility Ceiling that is reasonably
necessary to avoid ownership of Shares by non-Japanese persons in excess of any
limit that is imposed by applicable law or the articles of association of the
Issuer. The Issuer shall notify the Depositary in writing if the existing
Facility Ceiling is no longer reasonably necessary as provided in the proceeding
sentence and shall notify the Depositary as promptly as practical of that
action. The Depositary may rely upon the most recent written notice it received
from the Issuer regarding the Facility Ceiling.
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Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in a form reasonably satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence reasonably satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in Japan which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Issuer or the Foreign Registrar,
if applicable, are closed, shall also be accompanied by an agreement or
assignment, or other instrument reasonably satisfactory to the Depositary, which
will provide for the prompt transfer to the Custodian of any dividend, or right
to subscribe for additional Shares or to receive other property which any person
in whose name the Shares are or have been recorded may thereafter receive upon
or in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be reasonably satisfactory to the
Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such
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Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Issuer or the Foreign Registrar,
if applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer that any
Deposited Securities have been recorded upon the books of the Issuer or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or
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Receipts as provided in Section 5.9, and of all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, without unreasonable delay, register transfers of Receipts on
its transfer books from time to time, upon any surrender of a Receipt, by the
Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer, and duly stamped as may be
required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the purpose
of effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. Promptly upon such appointment,
each co-transfer agent appointed under this Section 2.4 shall give notice in
writing to the Issuer and the Depositary accepting such appointment. In carrying
out its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Owners or persons
entitled to Receipts and will be entitled to protection and indemnity to the
same extent as the Depositary.
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SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the deliverable portion (as defined in Section 2.6) of the American Depositary
Shares evidenced by such Receipt, and upon payment of the fee of the Depositary
for the surrender of Receipts as provided in Section 5.9 and payment of all
taxes and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of this Deposit Agreement, the Owner of such Receipt shall be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities at the
time represented by the deliverable portion (as defined in Section 2.6) of the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. Such delivery shall
be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the Tokyo office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the deliverable
portion (as defined in Section 2.6) of the American Depositary Shares evidenced
by such Receipt, except that the Depositary may make delivery to such person or
persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
deliverable portion (as
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defined in Section 2.6) of the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates, if applicable, and other proper documents of title
for, the Deposited Securities represented by the deliverable portion (as defined
in Section 2.6) of the American Depositary Shares evidenced by such Receipt to
the Depositary for delivery at the Corporate Trust Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Owner, by cable, telex or facsimile transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
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The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of Section 7.7 hereof. Notwithstanding
any other provision of this Deposit Agreement or the Receipts, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares.
Upon surrender of a Receipt or Receipts by an Owner to the Depositary, as
a result of, and to the extent required by, the operation of applicable
provisions of the Japanese Commercial Code or any other Japanese law, the
Depositary will effect delivery to such Owner of only that portion of Shares
(and any other Deposited Securities relating to such Shares) comprising a Unit
or an integral multiple thereof (the "deliverable portion" of such Receipt or
Receipts). For the purpose of the foregoing sentence, the deliverable portion
shall be determined on the basis of the aggregate number of Shares represented
by the entire amount of American Depositary Shares evidenced by the Receipt or
Receipts surrendered by the same Owner at the same time. The Depositary
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will promptly advise such Owner as to the amount of Shares and Deposited
Securities, if any, represented by the non-deliverable portion of such Receipt
or Receipts and shall deliver to such Owner a new Receipt evidencing such
non-deliverable portion. In addition, the Depositary shall notify such Owner of
the additional amount of American Depositary Shares which such Owner would be
required to surrender in order for the Depositary to effect delivery of all the
Shares and Deposited Securities represented by the American Depositary Shares of
such Owner.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized and directed to destroy Receipts so
cancelled.
SECTION 2.9 Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the Issuer (or
any agent of the Issuer recording Share ownership) of rights to receive Shares
from the Issuer (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
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Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (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 number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Issuer, change such
limit for purposes of general application. The Depositary will also set Dollar
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes
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of enabling the Depositary to fulfill its obligations to the Owners under the
Deposit Agreement, the collateral referred to in clause (b) above shall be held
by the Depositary as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
ARTICLE 3 CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
proof of identity of any person who has legal or beneficial interest in the
Receipt and the nature of such interest or such information relating to the
registration on the books of the Issuer or the Foreign Registrar, if applicable,
to execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper or as the Issuer may require by
written request to the Depositary. The Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented by any Receipt, such tax
or other
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governmental charge shall be payable by the Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner
thereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner of such Receipt shall remain liable for
any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized to do so. Every such person shall
also be deemed to represent that such Shares and the Receipts evidencing
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
SECTION 3.4 Disclosure of Ownership.
Notwithstanding any other provision of this Deposit Agreement, each Owner
and holder agrees to comply with requests from the Issuer pursuant to applicable
law or the Articles of Association to provide information, inter alia, as to the
capacity in which such Owner or holder owns American Depositary Shares (and
Shares as the case may be) and regarding the identity of any other person(s)
interested in such American Depositary Shares (and Shares, as the case may be)
and the nature of such interest and various other matters, whether or not they
are Owners or holders at the time of such request. The Depositary agrees to use
its reasonable efforts to forward, upon the written request of the Issuer and at
the expense of the Issuer, any such written
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request from the Issuer to the Owners and to forward, as promptly as
practicable, to the Issuer any such responses to such requests received by the
Depositary. If the Issuer requests information from the Depositary, as the
registered holder of the Shares, the obligations of the Depositary shall be
limited to disclosing to the Issuer the information contained in the register.
SECTION 3.5 Ownership Restrictions.
The Issuer may restrict transfer of Shares where such transfer might
result in ownership of Shares exceeding the limits under applicable laws or the
articles of association of the Issuer. The Issuer may also restrict, in such
manner as it deems appropriate, transfer of the American Depositary Shares where
such transfer may result in the total number of Shares represented by the
American Depositary Shares beneficially owned by a single Owner or holder
exceeding the limits under any applicable law or the articles of association of
the Issuer. The Issuer may, in its sole discretion, instruct the Depositary to
take action with respect to the ownership interest of any Owner or holder in
excess of the limitation set forth in the preceding sentence, including but not
limited to a mandatory sale or disposition on behalf of an Owner or holder of
the Shares represented by the American Depositary Shares held by such Owner or
holder in excess of such limitations, if and to the extent such mandatory sale
or disposition is reasonably practicable and permitted by applicable law. The
Depositary shall not be obligated to ensure compliance with the ownership
restrictions described in this Section 3.5, except to the extent of taking
action in accordance with the reasonable and practicable written instructions
received from the Issuer (such action to be taken at the sole expense of the
Issuer) as provided in the immediately preceding sentence. The Depositary shall
incur no liability to Owners and holders for carrying out any instructions
received from the Issuer pursuant to this Section 3.5.
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ARTICLE 4 THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.5, convert or cause to be converted such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Section 5.9 hereof, if
applicable) to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes or other
government charges, the amount distributed to the Owner of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Issuer or its agent will
remit to the appropriate governmental agency in Japan all amounts withheld and
owing to such agency. The Depositary will forward to the Issuer or its agent
such information from its records as the Issuer may reasonably request to enable
the Issuer or its agent to file necessary reports with governmental agencies,
and the Depositary or the Issuer or its agent may file any such reports
necessary to obtain benefits under the applicable tax treaties for the Owners of
Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities or property
received by it to be distributed to the Owners entitled thereto, after deduction
or upon payment of any fees
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and expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Issuer or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Owners or holders) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.9) shall be distributed by the Depositary to the Owners entitled
thereto as in the case of a distribution received in cash pursuant to Section
4.1 of this Deposit Agreement.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a stock
split under the Japanese Commercial Code, which means any kind of stock split in
relation to the Shares, including a subdivision of, dividend in, or free
distributions of Shares, the Depositary may, and shall if the Issuer shall so
request, distribute to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such stock split, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the
-20-
withholding of any tax or other governmental charge as provided in Section 4.11
and the payment of fees of the Depositary as provided in Section 5.9. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions by public or private sale (or, if such sale is not possible with
respect to any portion of such Shares which is less than a full Unit, by sale of
such portion to the Issuer in accordance with the applicable provisions of the
Japanese Commercial Code and any other Japanese law) and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.1. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby.
SECTION 4.4 Rights.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all Owners or to certain Owners but not to other
Owners, the Depositary may distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
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In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Issuer to the Depositary that (a) the Issuer has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Issuer has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses
-22-
of the Depositary as provided in Section 5.9 and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of this Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the provisions of such Act; provided that nothing in this
Deposit Agreement shall create any obligation on the part of the Issuer to file
a registration statement with respect to such rights or underlying securities.
If an Owner of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act, the Depositary shall not effect such distribution unless it has received an
opinion from recognized counsel in the United States for the Issuer upon which
the Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or
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cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed to the
Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments evidencing rights which entitle the holders
thereof to such Dollars, then to the holders of such warrants and/or instruments
upon surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file; as
promptly as practicable, such application for approval or license, if any, as it
may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency
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received by the Depositary to, or hold such balance uninvested and without
liability for interest thereon for the respective accounts of, the Owners
entitled thereto.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any stock split under the Japanese Commercial Code referred to in Section 4.3
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date, which date shall be as close as practicable to the
record date fixed by the Issuer, (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution, the additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares receivable as a result of such stock split or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
and content of of which
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notice shall be in the sole discretion of the Issuer and the Depositary, which
shall contain (a) such information as is contained in such notice of meeting,
and (b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to any applicable provision of Japanese
law and of the Articles of Incorporation of the Issuer, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated to the Issuer. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, (the "Instruction Date") the
Depositary shall endeavor, in so far as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. So long as under Japanese law votes may
only be cast in respect of one or more whole Units of Shares, (i) the same
instructions received from Owners shall be aggregated and the Depositary shall
endeavor insofar as is practicable to vote or cause to be voted the number of
whole Units in respect of which such instructions as so aggregated have been
received, in accordance with such instructions, and (ii) such Owners acknowledge
and agree that, if the Depositary has received the same instructions any portion
of which, after aggregation of all such instructions, constitutes instructions
with respect to less than a whole Unit of Shares, the Depositary will be unable
to vote or cause to be voted the Shares to which such portion of the
instructions applies. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to the Shares or other Deposited Securities, other
than in accordance with such instructions or deemed instructions. If no
instructions are received by the Depositary from any Owner with respect to any
of the Deposited Securities represented
-26-
by the American Depositary Shares evidenced by such Owner's Receipts on or
before the date established by the Depositary for such purpose, the Depositary
shall deem such Owner to have instructed the Depositary to give a discretionary
proxy to a person designated by the Issuer with respect to such Deposited
Securities and the Depositary shall give a discretionary proxy to a person
designated by the Issuer to vote such Deposited Securities, provided, that no
such instruction shall be given with respect to any matter as to which the
Issuer informs the Depositary (and the Issuer agrees to provide such information
as promptly as practicable in writing) that (x) the Issuer does not wish such
proxy given, (y) substantial opposition exists or (z) such matter materially and
adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply, upon
any change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, if any, the new Deposited
Securities so received in exchange or conversion, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, and shall if the Issuer shall so request, execute and deliver additional
Receipts as in the case of a stock split under the Japanese Commercial Code
referred to in Section 4.3 of the
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Deposit Agreement, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Issuer pursuant to Section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Issuer shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any rules or
regulations of the Commission. This Section does not create the obligation of
the Issuer to translate such proxy soliciting materials into English any more
than required pursuant to such rules or regulations of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at the expense
of the Issuer, furnish to it a list, as of the most recent practicable date, of
the names, addresses and holdings of American Depositary Shares by all persons
in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
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 charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems
-28-
necessary and practicable to pay any such taxes or charges and the Depositary
shall distribute the net proceeds of any such sale after deduction of such taxes
or charges to the Owners entitled thereto in proportion to the number of
American Depositary Shares held by them respectively.
The Issuer or its agent shall remit to appropriate governmental
authorities and agencies in Japan all amounts, if any, withheld and owing to
such authorities and agencies by the Issuer. The Depositary or its agent shall
remit to appropriate governmental authorities and agencies in the United States
all amounts, if any, withheld and owing to such authorities and agencies by the
Depositary.
The Depositary shall forward to the Issuer or its agent such information
from its records as the Issuer may reasonably request in writing to enable the
Issuer or its agent to file necessary reports with governmental agencies.
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Issuer or a matter related to
this Deposit Agreement or the Receipts.
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The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder or at the reasonable written request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Articles of Incorporation of the Issuer, or
by reason of any provision of any securities issued or distributed by the
Issuer, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Issuer shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Issuer or
any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or holder of any Receipt by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to
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Section 4.4 of the Deposit Agreement, or for any other reason, such distribution
or offering may not be made available to Owners, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer.
The Issuer assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or holders of Receipts, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder of any Receipt
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
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The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary and the Issuer may rely and shall be protected in acting
upon any written notice, request, direction or other documents believed by them
to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Issuer, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by 90 days prior
written notice of such removal, which shall become effective upon the later to
occur of (i) the 90th day after delivery of the notice to the Depositary or (ii)
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
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In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer 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 Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, and upon giving notice to the Issuer, appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Owners to do so, it may, after consultation
with the Issuer, appoint a substitute or additional custodian or custodians,
which shall thereafter be one of the
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Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or stock split under the
Japanese Commercial Code referred to in Section 4.3 of the Deposit Agreement or
the offering of any rights, the Issuer agrees to transmit to the Depositary and
the Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Issuer will arrange for the translation into English, to the extent
required pursuant to any rules or regulations of the Commission and the prompt
transmittal by the Issuer to the Depositary and the Custodian of such notices
and any other reports and communications which are made generally available by
the Issuer to holders of its Shares. For the avoidance of doubt, this Section
does not create the
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obligation of the Issuer to translate such notices and any other reports into
English any more than required pursuant to such rules or regulations of the
Commission. If requested in writing by the Issuer, the Depositary will arrange
for the mailing, at the Issuer's expense, of copies of such notices, reports and
communications to all Owners. The Issuer will timely provide the Depositary with
the quantity of such notices, reports, and communications, as reasonably
requested by the Depositary from time to time, in order for the Depositary to
effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act to be in
effect prior to making such Distribution available to Owners entitled thereto.
If in the opinion of such counsel a registration statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement in effect which will cover such Distribution.
Nothing in this Section 5.7 or elsewhere in this Deposit Agreement shall
create any obligation on the part of the Issuer or the Depositary to file a
registration statement under the Securities Act of 1933 in respect of any such
securities or rights.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a registration
statement is in effect as to such Shares under the Securities Act.
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SECTION 5.8 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, in accordance with the provisions of this Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them and except to the extent
that such liability or expense arises out of information relating to the
Depositary or the Custodian, as applicable, furnished in writing to the Issuer
and executed by the Depositary, and not materially altered or changed by the
Issuer, as applicable, expressly for use in any registration statement, proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, or (ii) by the Issuer or any of its directors, employees,
agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus
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(or preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (i) information relating to the Depositary or any Custodian, as applicable,
furnished in writing and not materially changed or altered by the Issuer
expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Issuer, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary or its
Custodian or their respective directors, employees, agents and affiliates due to
their negligence or bad faith.
If an action, proceeding (including, but not limited to, any governmental
investigation), claim or dispute (collectively, a "Proceeding") in respect of
which indemnity may be sought by either party is brought or asserted against the
other party, the party seeking indemnification (the "Indemnitee") shall promptly
(and in no event more than ten (10) days after receipt of notice of such
Proceeding) notify the party obligated to provide such indemnification (the
"Indemnitor") of such Proceeding. The failure of the Indemnitee to so notify the
Indemnitor shall not impair the Indemnitee's ability to seek indemnification
from the Indemnitor (but only for costs, expenses and liabilities incurred after
such notice) unless such failure adversely affects the Indemnitor's ability to
adequately oppose or defend such Proceeding. Upon receipt of such notice from
the Indemnitee, the Indemnitor shall be entitled to participate in such
Proceeding and, to the extent that it shall so desire and provided no conflict
of interest exists as specified in subparagraph (b) below or there are no other
defenses available to Indemnitee as specified in subparagraph (d) below, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnitee (in which case all attorney's fees and expenses shall be
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borne by the Indemnitor and the Indemnitor shall in good faith defend the
Indemnitee). The Indemnitee shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, (c) the Indemnitor fails, within ten (10) days prior to the date
the first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
different from or are in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no effect on any other claims that may be made against
such other party and (ii) the sole relief provided is monetary damages that are
paid in full by the party seeking the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.9 Charges of Depositary.
The Issuer agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months. The charges and expenses of the
Custodian are for the sole account
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of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock split under
the Japanese Commercial Code referred to in Section 4.3 of the Deposit Agreement
declared by the Issuer or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3), or
by Owners, as applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Issuer or Foreign
Registrar and applicable to transfers of Shares to or from the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.1 through 4.4
hereof, (7) a fee for the distribution of securities pursuant to Section 4.2,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, and (9) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by
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the Depositary in accordance with Section 4.6 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Issuer
requests that such papers be retained for a longer period or turned over to the
Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary a list
setting forth, to the actual knowledge of the Issuer, those persons or entities
who beneficially own Restricted Securities and the Issuer shall update that list
on a regular basis. The Issuer agrees to advise in writing each of the persons
or entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon.
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SECTION 5.13 Change in Unit.
The Issuer agrees that it shall give notice to Owners, pursuant to the
last two sentences of the second paragraph of Section 5.6 of this Deposit
Agreement, of any amendment to its Articles of Incorporation changing the number
of Shares previously designated as a Unit at least two weeks prior to the
effectiveness of such amendment
ARTICLE 6 AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Issuer and
the Depositary without the consent of Owners and holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Issuer terminate
this Deposit Agreement by mailing notice of such termination to the Owners of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such
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termination. The Depositary may likewise terminate this Deposit Agreement by
mailing notice of such termination to the Issuer and the Owners of all Receipts
then outstanding if at any time 90 days shall have expired after the Depositary
shall have delivered to the Issuer a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. On and after the date of termination,
the Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.5, and (c) 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 the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder by public or private sale (or, if such sale is not possible
with respect to any portion of such Shares which is less than a full Unit, by
sale of such portion to the Issuer in accordance with the applicable provisions
of the Japanese Commercial Code and any other Japanese law) and may thereafter
hold uninvested the net proceeds of any such sale, together with
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any other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). Upon the termination of this Deposit Agreement,
the Issuer shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7 MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any holder or Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any
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respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.4 Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof. For the avoidance of doubt,
the term "holders" shall include each person owning from time to time any
beneficial or other interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 7.5 Notices.
Any and all notices to be given to the Issuer shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Japan Airlines Corporation, JAL
Building, 2-4-11, Higashi-shinagawa Xxxxxxxxx-xx, 0-xxxxx Xxxxx 000-0000, Xxxxx,
Attn: IR Department, or any other place to which the Issuer may have transferred
its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall
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have filed with the Depositary a written request that notices intended for such
Owner be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Issuer and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Issuer hereby (i) irrevocably designates and appoints Xx. Xxxxxx
Xxxxxxx, Chief Executive Officer, The Americas, Japan Airlines International,
Executive Office, The Americas, 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xx
Xxxxxxx, XX 00000,
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U.S.A., as the Issuer's authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Deposit
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized agent
shall be deemed in every respect effective service of process upon the Issuer in
any such suit or proceeding. The Issuer agrees to deliver, upon the execution
and delivery of this Deposit Agreement, a written acceptance by such agent of
its appointment as such agent. The Issuer further agrees to take any and all
action, including the filing of any and all such documents and instruments, as
may be necessary to continue such designation and appointment in full force and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Deposit Agreement remains in force. In the event the Issuer
fails to continue such designation and appointment in full force and effect, the
Issuer hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Issuer at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
SECTION 7.9 Waiver of Immunities.
To the extent that the Issuer or any of its properties, assets or revenues
may have or may hereafter become entitled to, or have attributed to it, any
right of immunity, o the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service or process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or the enforcement of any
judgment, in any jurisdiction in which proceedings may at any
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time be commented, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Deposit
Agreement, the Issuer, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
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IN WITNESS WHEREOF, JAPAN AIRLINES CORPORATION, and THE BANK OF NEW YORK
have duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
JAPAN AIRLINES CORPORATION
By: ___________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: ___________________________
Name:
Title:
-48-
Exhibit A to Deposit Agreement
UPON SURRENDER OF THIS RECEIPT, AS A RESULT OF, AND TO THE EXTENT REQUIRED BY,
THE OPERATION OF THE JAPANESE COMMERCIAL CODE, THE DEPOSITARY WILL EFFECT THE
DELIVERY TO THE OWNER HEREOF, OF SHARES OF JAPAN AIRLINES CORPORATION
REPRESENTED BY THE AMERICAN DEPOSITARY SHARES EVIDENCED HEREBY ONLY IN 1,000
SHARES (OR SUCH OTHER NUMBER OF SHARES AS THE ARTICLES OF INCORPORATION OF JAPAN
AIRLINES CORPORATION MAY PROVIDE AS A "UNIT OF SHARES" FOR THE PURPOSE OF THE
JAPANESE COMMERCIAL CODE, AS SUCH ARTICLES OF INCORPORATION MAY BE AMENDED FROM
TIME TO TIME) OR AN INTEGRAL MULTIPLE THEREOF.
No. __________________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
five (5) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
JAPAN AIRLINES CORPORATION
(INCORPORATED UNDER THE LAWS OF JAPAN)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that _____________, or registered assigns IS THE OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares (herein called "Shares") of Japan
Airlines Corporation incorporated under the laws of Japan (herein called the
"Company"). At the date hereof, each American Depositary Share represents five
(5) Shares which are either deposited or subject to deposit under the deposit
agreement at the Tokyo office of Sumitomo Mitsui Banking Corporation (herein
called the "Custodian"). The Depositary's Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ___________, 2004 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. For the avoidance of doubt, the term "holders"
shall include each person owning from time to time any beneficial or other
interest in the American Depositary Shares evidenced by any Receipt. The Deposit
Agreement sets forth the rights of Owners and holders of the Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the deliverable portion (as
defined in Article (3) hereof) of the American Depositary Shares for which this
Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or by certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt to such Owner or as ordered by him. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (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
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similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares.
Upon surrender of a Receipt or Receipts by an Owner to the Depositary, as
a result of, and to the extent required by, the operation of applicable
provisions of the Japanese Commercial Code or any other Japanese law, the
Depositary will effect delivery to such Owner of only that portion of Shares
(and any other Deposited Securities relating to such Shares) comprising a Unit
or an integral multiple thereof (the "deliverable portion" of such Receipt or
Receipts). For the purpose of the foregoing sentence, the deliverable portion
shall be determined on the basis of the aggregate number of Shares
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represented by the entire amount of American Depositary Shares evidenced by the
Receipt or Receipts surrendered by the same Owner at the same time. The
Depositary will promptly advise such Owner as to the amount of Shares and
Deposited Securities, if any, represented by the non-deliverable portion of such
Receipt or Receipts and shall deliver to such Owner a new Receipt evidencing
such non-deliverable portion. In addition, the Depositary shall notify such
Owner of the additional amount of American Depositary Shares which such Owner
would be required to surrender in order for the Depositary to effect delivery of
all the Shares and Deposited Securities represented by the American Depositary
Shares of such Owner.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor,
if applicable, are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized to do so. Every such person shall also be
deemed to represent that such Shares and the sale of Receipts evidencing
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
The Depositary shall not accept Shares for deposit to the extent that,
after giving effect to a deposit, the total number of Shares on deposit under
this Deposit Agreement would exceed the Facility Ceiling. "Facility Ceiling"
means a number of Shares of which the Depositary has received written notice
from the Company. The Company may establish a Facility Ceiling that is
reasonably necessary to avoid ownership of Shares by non-Japanese persons in
excess of any limit that is imposed by applicable law or the articles of
association of the Company. The Company may establish a Facility Ceiling that is
reasonably necessary to avoid ownership of Shares by non-Japanese persons in
excess of any limit that is imposed by applicable law. The Company shall notify
the Depositary in writing if the existing Facility Ceiling is no longer
reasonably necessary as
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provided in the proceeding sentence and shall notify the Depositary as promptly
as practical of that action. The Depositary may rely upon the most recent
written notice it received from the Company regarding the Facility Ceiling.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
proof of identity of any person who has legal or beneficial interest in the
Receipt and the nature of such interest or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
require by written request to the Depositary. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. No Share shall be accepted for deposit unless accompanied by evidence
reasonably satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in Japan which is then performing the function
of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock split under
the Japanese Commercial Code, which means any kind of stock split in relation to
the Shares, including a subdivision of, dividend in, or free distributions of
Shares declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3 of
the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.5,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
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thereof) for the execution and delivery of Receipts pursuant to Section 2.3, 4.3
or 4.4 of the Deposit Agreement and the surrender of Receipts pursuant to
Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement, including, but not limited to Sections 4.1
through 4.4 of the Deposit Agreement, (7) a fee for the distribution of
securities pursuant to Section 4.2 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Owners, and (8) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.6 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the Company (or
any agent of the Company recording Share ownership) of rights to receive Shares
from the Company (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfactory of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in
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satisfaction of such Pre-Release, (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 number of Shares not deposited but
represented by American Depositary Shares which are outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems reasonably appropriate, and may, with the prior written consent
of the Company, change such limit with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Release on a case-by-case basis
as the Depositary deems appropriate. For the purposes of enabling the Depositary
to fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities herunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; under the laws of the State of New York; provided,
however, that the Company and the Depositary, notwithstanding any notice to the
contrary, may treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes. Neither the Company nor the Depositary shall have any obligation
or be subject to any liability under the Deposit Agreement to any holder of a
Receipt unless such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
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11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934.
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any rules or regulations of the Commission. Section 4.9
and Section 5.6 of the Deposit Agreement do not create the obligation of the
Company to translate such notices, reports and proxy soliciting materials into
English any more than required pursuant to such rules or regulations of the
Commission.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert or cause to be converted such dividend or distribution into Dollars and
shall distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in the Deposit Agreement, if applicable) to the Owners of
Receipts entitled thereto, provided, however, that in the event that the Company
or the Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution in respect of any Deposited Securities
an amount on account of taxes or other government charges, the amount
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distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed to the Owners of Receipts entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners of Receipts entitled thereto, or if for any other reason the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.9 of the Deposit Agreement) shall be distributed by the
Depositary to the Owners of Receipts entitled thereto as in the case of a
distribution received in cash pursuant to Section 4.1 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a stock
split under the Japanese Commercial Code referred to in Article (7) hereof, the
Depositary may, and shall if the Company shall so request, distribute to the
Owners of outstanding Receipts entitled thereto, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such stock split, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions by public or
private sale (or, if such sale is not possible with respect to any portion of
such Shares which is less than a full Unit, by sale of portion to the Company in
accordance with the applicable provisions of the Japanese Commercial Code and
any other Japanese law) and distribute the net proceeds, all in the manner and
subject to the conditions set forth in the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
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 charge which the Depositary is obligated to withhold,
the Depositary may
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by public or private sale dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner as the Depositary deems necessary and practicable to pay any such taxes
or charges and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Owners of Receipts entitled
thereto.
The Company or its agent shall remit to appropriate governmental
authorities and agencies in Japan all amounts, if any, withheld and owing to
such authorities and agencies by the Company. The Depositary or its agent shall
remit to appropriate governmental authorities and agencies in the United States
all amounts, if any, withheld and owing to such authorities and agencies by the
Depositary.
The Depositary shall forward to the Company or its agent such information
from its records as the Company may reasonably request in writing to enable the
Company or its agent to file necessary reports with governmental agencies.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments evidencing
rights which entitle the holders thereof to such Dollars, then to the holders of
such warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file; as
promptly as practicable, such application for approval or license, if any, as it
may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to
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receive such foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled to receive
the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all Owners or to certain Owners but not to other
Owners, the Depositary may distribute, to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such
-11-
Owner, exercise the rights and purchase the Shares, and the Company shall cause
the Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.2 of the Deposit Agreement, and
shall, pursuant to Section 2.3 of the Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the second
paragraph of this Article, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.9 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the provisions of the Securities Act; provide that nothing in
the Deposit Agreement shall create any obligation on the part of the Company to
file a registration statement with respect to such rights or underlying
securities. If an Owner of Receipts requests distribution of warrants or other
instruments, notwithstanding that there has been no such registration under such
the Securities Act, the Depositary shall not effect such distribution unless it
has received an opinion from recognized counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any stock split under the Japanese Commercial Code referred to in Article
(7), or any distribution other than cash shall be made, or whenever rights shall
be issued with respect to the Deposited Securities, or whenever for any reason
the Depositary causes a change in the number of Shares that are represented by
each American Depositary Share, or
-12-
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, the Depositary shall fix a record date, which
date shall be as close as practicable to the record date fixed by the Company,
(a) for the determination of the Owners of Receipts who shall be (i) entitled to
receive such dividend, distribution, the additional Receipts evidencing an
aggregate number of American Depositary Shares representing amount of Shares
receivables as a result of such stock split or rights or the net proceeds of the
sale thereof or (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (b) on or after which each American Depositary
Share will represent the changed number of Shares, subject to the provisions of
the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form and content of which notice shall be in the sole discretion of
the Company and the Depositary, which shall contain (a) such information as is
contained in such notice of meeting, (b) a statement that the Owners of Receipts
as of the close of business on a specified record date will be entitled, subject
to any applicable provision of Japanese law and of the Articles of Incorporation
of the Company, to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated to the Company.
Upon the written request of an Owner of a Receipt on such record date, received
on or before the date established by the Depositary for such purpose (the
"Instruction Date"), the Depositary shall endeavor, in so far as practicable to
vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. So long as under
Japanese law votes may only be cast in respect of one or more whole Units of
Shares, (i) the same instructions received from Owners shall be aggregated and
the Depositary shall endeavor insofar as is practicable to vote or cause to be
voted the number of whole Units in respect of which such instructions as so
aggregated have been received, in accordance with such instructions, and (ii)
such Owners acknowledge and agree that, if the Depositary has received the same
instructions any portion of which, after aggregation of all such instructions,
constitutes instructions with respect to less than a whole Unit of Shares, the
Depositary will be unable to vote or cause to be voted the Shares to which such
portion of the instructions applies. The Depositary shall not vote or attempt to
exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions. The Depositary
shall not vote or attempt to exercise the right to vote that attaches to the
Shares or other Deposited Securities, other than in accordance
-13-
with such instructions or deemed instructions. If no instructions are received
by the Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, 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 a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
if any, the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a stock split under
the Japanese Commercial Code referred to in Article (7) hereof, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Articles of Incorporation of the Company,
or by reason of any provision of any Securities issued or distributed by the
Company, or any Offering or distribution thereof or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall
-14-
be prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company incur any liability to any
Owner or holder of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or holder of a Receipt, or any
other person believed by it in good faith to be competent to give such advice or
information. The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with the
issue out of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Depositary and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other documents believed by them to be
genuine and to have been signed or presented by the proper party or parties. The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may
-15-
arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them and except to the extent that such liability or
expense arises out of information relating to the Depositary or the Custodian,
as applicable, furnished in writing to the Company and executed by the
Depositary, and not materially altered or changed by the Company, as applicable,
expressly for use in any registration statement, proxy statement, prospectus (or
placement memorandum) or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, or (ii)
by the Company or any of its directors, employees, agents and affiliates. The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.9 of the Deposit Agreement) of a Receipt or Receipts in
accordance with Section 2.9 of the Deposit Agreement and which would not
otherwise have arisen had such Receipt or Receipts not been the subject of a
Pre-Release pursuant to Section 2.9 of the Deposit Agreement; provided, however,
that the indemnities provided in the preceding paragraph shall apply to any such
liability or expense (i) to the extent that such liability or expense would have
arisen had a Receipt or Receipts not be the subject of a Pre-Release, or (ii)
which may arise out of any misstatement or alleged misstatement or omission or
alleged omission in any registration statement, proxy statement, prospectus (or
placement memorandum), or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or any Custodian, as applicable, furnished in writing
and not materially changed or altered by the Company expressly for use in any of
the foregoing documents, or, (ii) if such information is provided, the failure
to state a material fact necessary to make the information provided not
misleading. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
If an action, proceeding (including, but not limited to, any governmental
investigation), claim or dispute (collectively, a "Proceeding") in respect of
which indemnity may be sought by either party is brought or asserted against the
other party, the party seeking indemnification (the "Indemnitee") shall promptly
(and in no event more than ten (10) days after receipt of notice of such
Proceeding) notify the party obligated to provide such indemnification (the
"Indemnitor") of such Proceeding. The failure of the Indemnitee to so notify the
Indemnitor shall not impair the Indemnitee's ability to seek indemnification
from the Indemnitor (but only for costs, expenses and liabilities incurred after
such notice) unless such failure adversely affects the Indemnitor's ability to
adequately oppose or defend such Proceeding. Upon receipt of such notice from
the Indemnitee, the Indemnitor shall be entitled to participate in such
Proceeding and, to the
-16-
extent that it shall so desire and provided no conflict of interest exists as
specified in subparagraph (b) below or there are no other defenses available to
Indemnitee as specified in subparagraph (d) below, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee (in which case all
attorney's fees and expenses shall be borne by the Indemnitor and the Indemnitor
shall in good faith defend the Indemnitee). The Indemnitee shall have the right
to employ separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be borne by the
Indemnitee unless (a) the Indemnitor agrees in writing to pay such fees and
expenses, (b) the Indemnitee shall have reasonably and in good faith concluded
that there is a conflict of interest between the Indemnitor and the Indemnitee
in the conduct of the defense of such action, (c) the Indemnitor fails, within
ten (10) days prior to the date the first response or appearance is required to
be made in such Proceeding, to assume the defense of such Proceeding with
counsel reasonably satisfactory to the Indemnitee or (d) there are legal
defenses available to Indemnitee that are different from or are in addition to
those available to the Indemnitor. No compromise or settlement of such
Proceeding may be effected by either party without the other party's consent
unless (i) there is no finding or admission of any violation of law and no
effect on any other claims that may be made against such other party and (ii)
the sole relief provided is monetary damages that are paid in full by the party
seeking the settlement. Neither party shall have any liability with respect to
any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and
hold harmless the Indemnitee from any loss, expense or liability incurred by the
Indemnitee as a result of a default judgment entered against the Indemnitee
unless such judgment was entered after the Indemnitor agreed, in writing, to
assume the defense of such Proceeding.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement written notice of its election so to do delivered to the Company, such
resignation to take effect 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 90th days prior written
notice of such removal, which shall become effective upon the later to occur of
the (i) 90th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do so,
it may, after consultation with the Company, appoint substitute or additional
custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners and holders in any respect
which they may
-17-
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners of Receipts, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner of a
Receipt at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement and (c) 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 the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
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 and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges). At any time after the expiration
of one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement by public of private sale (or,
if such sale is not possible with respect to any portion of such Shares which is
less than a
-18-
full Unit, by sale of such portion to the Company in accordance with the
applicable provisions of the Japanese Commercial Code and any other Japanese
law) and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Company hereby (i) irrevocably designates and appoints Xx. Xxxxxx
Xxxxxxx, Chief Executive Officer, The Americas, Japan Airlines International,
Executive Office, The Americas, 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xx
Xxxxxxx, XX 00000, U.S.A., as the Company's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the Shares
or Deposited Securities, the American Depositary Shares, the Receipts or the
Deposit Agreement, (ii) consents and submits to the jurisdiction of any state or
federal court in the State of New York in which any such suit or proceeding may
be instituted, and (iii) agrees that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of the Deposit Agreement, a written acceptance by such
agent of its appointment as such agent. The Company further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or the Deposit Agreement remains in force. In the event the
Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or
-19-
registered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder, and service so made shall be
deemed completed five (5) days after the same shall have been so mailed.
24. WAIVER OF IMMUNITIES.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit Agreement, the Company,
to the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
25. CHANGE IN UNIT.
The Company agrees that it shall give notice to Owners, pursuant to the
last two sentences of the second paragraph of Section 5.6 of the Deposit
Agreement, of any amendment to its Articles of Incorporation changing the number
of Shares previously designated as a Unit at least two weeks prior to the
effectiveness of such amendment.
26. DISCLOSURE OF OWNERSHIP.
Notwithstanding any other provision of the Deposit Agreement, each Owner
and holder agrees to comply with requests from the Company pursuant to
applicable law or the Articles of Association to provide information, inter
alia, as to the capacity in which such Owner or holder owns American Depositary
Shares (and Shares as the case may be) and regarding the identity of any other
person(s) interested in such American Depositary Shares (and Shares, as the case
may be) and the nature of such interest and various other matters, whether or
not they are Owners or holders at the time of such request. The Depositary
agrees to use its reasonable efforts to forward, upon the written request of the
Company and at the expense of the Company, any such written request from the
Company to the Owners and to forward, as promptly as practicable, to the Company
any such responses to such requests received by the Depositary. If the Company
requests information from the Depositary, as the registered holder of the
Shares, the obligations of the Depositary shall be limited to disclosing to the
Company the information contained in the register.
-20-
27. OWNERSHIP RESTRITCTIONS.
The Company may restrict transfer of Shares where such transfer might
result in ownership of Shares exceeding the limits under applicable laws or the
articles of association of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfer of the American Depositary Shares where
such transfer may result in the total number of Shares represented by the
American Depositary Shares beneficially owned by a single Owner or holder
exceeding the limits under any applicable law or the articles of association of
the Company. The Company may, in its sole discretion, instruct the Depositary to
take action with respect to the ownership interest of any Owner or holder in
excess of the limitation set forth in the preceding sentence, including but not
limited to a mandatory sale or disposition on behalf of an Owner or holder of
the Shares represented by the American Depositary Shares held by such Owner or
holder in excess of such limitations, if and to the extent such mandatory sale
or disposition is reasonably practicable and permitted by applicable law. The
Depositary shall not be obligated to ensure compliance with the ownership
restrictions described in Section 3.5 of the Deposit Agreement, except to the
extent of taking action in accordance with the reasonable and practicable
written instructions received from the Company (such action to be taken at the
sole expense of the Company) as provided in the immediately preceding sentence.
The Depositary shall incur no liability to Owners and holders for carrying out
any instructions received from the Company pursuant to Section 3.5 of the
Deposit Agreement.
-21-
