AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of October 2, 2006 (the "Amendment") to the Deposit Agreement dated as of
September 14, 2001 (the "Deposit Agreement"), among Advantest Corporation (the
"Company"), incorporated under the laws of Japan, JPMorgan Chase Bank, N.A.,
as
depositary (the "Depositary"), and all Holders from time to time of American
Depositary Receipts ("ADRs") issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms
of
the Deposit Agreement and ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
SECTION
1.02. Company
Law.
The
term "Company Law" shall mean the Company Law
of
Japan (Law No. 86 of 2005, as amended).
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, as
amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary or Xxxxxx Guaranty Trust
Company of New York shall be deemed references to JPMorgan Chase Bank, N.A.
SECTION
2.03. All
references in the Deposit Agreement and form of ADR to par value are
deleted.
SECTION
2.04. The
addresses set forth in Section 17 of the Deposit Agreement are amended to read
as follows:
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(a)JPMorgan
Chase Bank, N.A.
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Four
Xxx Xxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
ADR Administration
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Fax:
(000) 000-0000
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(b)
Advantest Corporation
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Shin-Marunouchi
Center Building
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0-0-0
Xxxxxxxxxx, Xxxxxxx-xx
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Xxxxx
000-0000, Xxxxx
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Fax:
x00-0-0000-0000
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SECTION
2.05. References
in the form of ADR to "JPMorgan Chase Bank, a New York Corporation" are replaced
with "JPMorgan Chase Bank, N.A., a national banking association organized under
the laws of the United States of America".
2
SECTION
2.06. The
ratio
of shares of Stock represented by each ADS is amended so that after the
Effective Date each ADS shall represent one share of Stock.
SECTION
2.07. Paragraph
(7) of the form of ADR is amended to read as follows:
Charges
of Depositary.
The
Depositary may charge (i) each person to whom ADSs are issued, including,
without limitation, issuances against deposits of Stock, issuances in
respect of Stock Distributions, Rights and Other Distributions (as such terms
are defined in paragraph (10)), issuances pursuant to a stock dividend or
stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the ADSs or the Deposited Securities, and (ii) each person surrendering
ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or
reduced for any other reason, U.S.$5.00 for each 100 ADSs (or portion thereof)
issued, delivered, reduced, cancelled or surrendered (as the case may be).
The Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Stock Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Holders, by any party depositing or withdrawing
Stock or by any party surrendering ADSs, to whom ADSs are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the ADSs or the
Deposited Securities or a distribution of ADSs pursuant to paragraph (10)),
whichever is applicable (i) to the extent not prohibited by the rules of the
primary stock exchange upon which the ADSs are listed, a fee of U.S.$0.02 or
less per ADS (or portion thereof) for any Cash distribution made pursuant to
the
Deposit Agreement, (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the ADSs are listed, a fee of U.S.$1.50 per ADR or
ADRs for transfers made pursuant to paragraph (3) hereof, (iii) a fee for the
distribution or sale of securities pursuant to paragraph (10) hereof, such
fee
being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit
of
such securities (for purposes of this paragraph (7) treating all such securities
as if they were shares of Stock) but which securities or the net cash proceeds
from the sale thereof are instead distributed by the Depositary to Holders
entitled thereto, (iv)
to
the extent not prohibited by the rules of the primary stock exchange upon which
the ADSs are listed, a fee of U.S.$0.02 per ADS (or portion thereof) per year
for the services performed by the Depositary in administering the ADRs (which
fee shall be assessed against Holders as of the record date or dates set by
the
Depositary not more than once each calendar year and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions), and (v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Stock), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Stock, ADRs or Deposited Securities (which are payable
by
such persons or Holders), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Stock or Holders withdrawing Deposited Securities;
there are no such fees in respect of the Stock as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Stock or
other Deposited Securities (which charge shall be assessed against Holders
as of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary.
3
SECTION
2.08. The
last
sentence of paragraph (8) of the form of ADR is amended to read
as
follows:
Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at
000
X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.09. The
form
of ADR, as amended hereby, with additional clarifying and
corrective changes, shall be in the form set forth as Exhibit A hereto.
4
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors rights and to general equity principles;
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in Japan, neither of such
agreements need to be filed or recorded with any court or other authority in
Japan, nor does any stamp or similar tax need to be paid in Japan on or in
respect of such agreements; and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
date hereof (the "Effective Date") provided however that the amendment set
forth
in Section 2.07 hereof shall not become effective until thirty days after notice
of such amendment has been provided to Holders.
5
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement, as amended hereby, in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
6
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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Advantest
Corporation
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By:____________________________
Name:
Xxxxxxx Xxxxx
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Title:
Director and Managing Executive
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Officer
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JPMorgan
Chase Bank, N.A.
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By:____________________________
Name:
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Title:
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
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No.
of ADSs:
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Number
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Each
ADS represent
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One
share of Stock
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CUSIP:
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THE
RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF STOCK MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE COMPANY LAW OF
JAPAN
AND TO ADVANTEST CORPORATION’S ARTICLES OF INCORPORATION, THE RELEASE OF THE
SHARES OF STOCK OF ADVANTEST CORPORATION UNDERLYING THE ADSs REPRESENTED BY
THIS
ADR MAY BE LIMITED TO A UNIT OF 100 SUCH SHARES OF STOCK (OR SUCH OTHER NUMBER
OF SHARES OF STOCK AS THE ARTICLES OF INCORPORATION MAY FROM TIME TO TIME
DESIGNATE AS A "UNIT OF SHARES") OR INTEGRAL MULTIPLES
THEREOF.
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
STOCK
of
ADVANTEST
CORPORATION
(Incorporated
under the
laws
of
Japan)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing one
share of common stock (including the rights to receive common stock described
in
paragraph (1) and any successor securities resulting from a change in the par
value, split-up or consolidation or any other reclassification, exchange or
conversion of such common stock, "Stock" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Stock, the "Deposited Securities"), of ADVANTEST
CORPORATION, a corporation organized under the laws of Japan (the "Company"),
deposited under the Deposit Agreement dated as of September 14, 2001 (as amended
from time to time, the "Deposit Agreement") among the Company, the Depositary
and all Holders from time to time of American Depositary Receipts issued
thereunder ("ADRs"), each of whom by accepting an ADR becomes a party thereto.
The Deposit Agreement and this ADR (which includes the provisions set forth
on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York.
1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Stock
in form satisfactory to the Custodian; (b) rights to receive Stock from the
Company or any registrar, transfer agent, clearing agent or other entity
recording Stock ownership or transactions; or, (c) other rights to receive
Stock
(until such Stock is actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Stock, (b) assigns
all beneficial right, title and interest therein to the Depositary in its
capacity as such, (c) holds such Stock for the account of the Depositary and
(d)
will deliver such Stock to the Custodian as soon as practicable and promptly
upon demand therefor and (iii) all Pre-released ADRs evidence not more than
30%
of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. The Depositary may retain for its own account
any
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. Stock or evidence of rights to receive such Stock may be deposited
through (x) electronic transfer of such Stock to the account maintained by
the
Custodian for such purpose at JASDEC, (y) evidence satisfactory to the Custodian
of irrevocable instructions to cause such Stock to be transferred to such
account or (z) delivery of the certificates representing such Stock. If use
of
the JASDEC book-entry system in connection with the Stock is discontinued at
any
time for any reason, the Company shall make other book-entry arrangements (if
any) that it determines, after consultation with the Depositary, are reasonable.
At the request, risk and expense of the person depositing Stock, the Depositary
may accept deposits for forwarding to the Custodian and may deliver ADRs at
a
place other than its office. Every person depositing Stock under the Deposit
Agreement represents and warrants that such Stock is validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
such
Stock is owned by a non-resident of Japan for purposes of the Foreign Exchange
and Foreign Trade Law of Japan, that the person making such deposit is duly
authorized so to do and that such Stock (A) is not "restricted securities"
as
such term is defined in Rule 144 under the Securities Act of 1933 unless at
the
time of deposit they may be freely transferred in accordance with Rule 144(k)
and may otherwise be offered and sold freely in the United States or (B) have
been registered under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Stock and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement
any
Stock required to be registered under the Securities Act of 1933 and not so
registered; the Depositary will use its reasonable commercial efforts to comply
with written instructions of the Company, which are reasonable in nature, not
to
accept for deposit hereunder any Stock specifically identified in such
instructions at such times and under such reasonable circumstances as may
reasonably be specified in such instructions in order to facilitate the
Company's compliance with such Act.
2
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office or an account
maintained at JASDEC of the Deposited Securities at the time represented by
the
ADSs evidenced by this ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other
place
as may have been requested by the Holder. Upon surrender of an ADR or ADRs
by a
Holder to the Depositary, as a result of, and to the extent required by, the
operation of applicable provisions of the Japanese Company Law, the Depositary
will effect the delivery to such Holder of only that portion of Stock (and
any
other Deposited Securities relating to such Stock) comprising a Unit or an
integral multiple thereof (the "deliverable portion" of such ADR or ADRs).
As of
the date of the Deposit Agreement, a Unit is comprised of 100 shares of Stock.
For the purpose of the foregoing sentence, the deliverable portion shall be
determined on the basis of the aggregate number of shares of Stock represented
by the entire amount of the ADSs evidenced by the ADR or ADRs surrendered by
the
same Holder at the same time. The Depositary will promptly advise such Holder
as
to the amount of Stock and Deposited Securities, if any, represented by the
non-deliverable portion of such ADR or ADRs and shall deliver to such Holder
a
new ADR evidencing such non-deliverable portion. In addition, the Depositary
shall notify such Holder of the additional amount of ADSs which such Holder
would be required to surrender in order for the Depositary to effect delivery
of
all the Stock and Deposited Securities represented by the ADSs of such Holder.
Notwithstanding any other provision of the Deposit Agreement or this ADR, the
withdrawal of Deposited Securities may be restricted only for the reasons set
forth in General Instruction I.A.(1) of Form F-6 (as such instructions may
be
amended from time to time) under the Securities Act of 1933.
3
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed in the case of ADRs in certificated
form or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced
by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender
of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer and duly stamped as may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it, after consultation with the Company to the extent
practicable in the case of a closure outside of the ordinary course of business
other than as a result of force majeure, or at the reasonable and written
request of the Company. At the request of a Holder, the Depositary shall, for
the purpose of substituting a certificated ADR with a Direct Registration ADR,
or vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR, as the case may be, for any authorized number of ADSs requested, evidencing
the same aggregate number of ADSs as those evidenced by the certificated ADR
or
Direct Registration ADR, as the case may be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Stock or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law (including, without
limitation, the Foreign Exchange and Foreign Trade law of Japan), regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may reasonably deem necessary or proper; and
(c)
compliance with such regulations as the Depositary may establish consistent
with
the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of
Stock, the registration, registration of transfer, split-up or combination
of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or
when
any such action is deemed advisable by the Depositary or the
Company.
4
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Stock. In connection with any distribution to Holders, the Company
will remit to the appropriate governmental authority or agency all amounts
(if
any) required to be withheld and owing to such authority or agency by the
Company; and the Depositary and the Custodian will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Depositary or the Custodian. If
the
Depositary determines that any distribution in property other than cash
(including Stock or rights) on Deposited Securities is subject to any tax that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Stock and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations.
5
(7)
Charges
of Depositary.
The
Depositary may charge (i) each person to whom ADSs are issued, including,
without limitation, issuances against deposits of Stock, issuances in
respect of Stock Distributions, Rights and Other Distributions (as such terms
are defined in paragraph (10)), issuances pursuant to a stock dividend or
stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the ADSs or the Deposited Securities, and (ii) each person surrendering
ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or
reduced for any other reason, U.S.$5.00 for each 100 ADSs (or portion thereof)
issued, delivered, reduced, cancelled or surrendered (as the case may be).
The Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Stock Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Holders, by any party depositing or withdrawing
Stock or by any party surrendering ADSs, to whom ADSs are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the ADSs or the
Deposited Securities or a distribution of ADSs pursuant to paragraph (10)),
whichever is applicable (i) to the extent not prohibited by the rules of the
primary stock exchange upon which the ADSs are listed, a fee of U.S.$0.02 or
less per ADS (or portion thereof) for any Cash distribution made pursuant to
the
Deposit Agreement, (ii) to the extent not prohibited by the rules of the primary
stock exchange upon which the ADSs are listed, a fee of U.S.$1.50 per ADR or
ADRs for transfers made pursuant to paragraph (3) hereof, (iii) a fee for the
distribution or sale of securities pursuant to paragraph (10) hereof, such
fee
being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit
of
such securities (for purposes of this paragraph (7) treating all such securities
as if they were Stock) but which securities or the net cash proceeds from the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
to
the extent not prohibited by the rules of the primary stock exchange upon which
the ADSs are listed, a fee of U.S.$0.02 per ADS (or portion thereof) per year
for the services performed by the Depositary in administering the ADRs (which
fee shall be assessed against Holders as of the record date or dates set by
the
Depositary not more than once each calendar year and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions), and (v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Stock), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Stock, ADRs or Deposited Securities (which are payable
by
such persons or Holders), (iii) transfer or registration fees for the
registration or transfer of Deposited Securities on any applicable register
in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Stock or Holders withdrawing Deposited Securities;
there are no such fees in respect of the Stock as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion
of
foreign currency into U.S. dollars (which are paid out of such foreign
currency), and (v) any other charge payable by any of the Depositary, any of
the
Depositary’s agents, including, without limitation, the custodian, or the agents
of the Depositary’s agents in connection with the servicing of the Stock or
other Deposited Securities (which charge shall be assessed against Holders
as of
the record date or dates set by the Depositary and shall be payable at the
sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or more cash dividends or other cash distributions). Such charges
may
at any time and from time to time be changed by agreement between the Company
and the Depositary.
6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary, as soon as practicable, will mail copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied
at
public reference facilities maintained by the Commission located at the date
hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
|
By
____________________
|
|
|
Authorized
Officer
|
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute as promptly as practicable by mail to each Holder entitled thereto
on
the record date set by the Depositary therefor at such Holder's address shown
on
the ADR Register, in proportion to the number of Deposited Securities (on which
the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Stock.
(i)
Additional ADRs evidencing whole ADSs representing any Stock available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Stock (a "Stock Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Stock received
in a
Stock Distribution, which Stock would give rise to fractional ADSs if additional
ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Stock or rights of any nature available to the Depositary as a result
of a distribution on Deposited Securities ("Rights"), to the extent that the
Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Stock Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional cents will be withheld without liability and dealt with by
the
Depositary in accordance with its then current practices.
8
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as for the determination of the Holders who shall be entitled
to receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so entitled
or
obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Stock or other Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date in
the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary will not itself exercise
any
voting discretion in respect of any Deposited Securities. At the written request
of the Company prior to any given meeting, the Depositary shall deliver, subject
to the applicable laws and rules of any securities exchange on which the
Deposited Securities or ADSs are listed or traded, at least three business
days
prior to the date of such meeting, the Depositary shall endeavor to deliver
to
the Company the voting instructions received from Holders, if any, in accordance
with which the Depositary will vote or cause to be voted, the Deposited
Securities represented by the ADSs evidenced by such ADRs at such
meeting.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, and shall
if
the Company shall so request at the Company's expense, amend this ADR or
distribute additional or amended ADRs (with or without calling this ADR for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Stock
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
9
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of
the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder,
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Stock for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any of
the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians
and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, 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 Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Stock to be traded solely in electronic book-entry form and
(ii)
do not in either such case impose or increase any fees or charges to be borne
by
Holders, shall be deemed not to prejudice any substantial rights of Holders.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary may amend or supplement the Deposit Agreement and the ADR at any
time
in accordance with such changed rules. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice
of
such amendment or supplement is given to Holders or within any other period
of
time as required for compliance.
10
(17)
Termination.
The
Depositary may, and shall at the written direction of the Company, terminate
the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
(18)
Change
in Unit.
The
Company agrees that it shall give notice to Holders of ADRs of any amendment
to
its Articles of Incorporation changing the number of shares of Stock previously
designated as a Unit as soon as practicable but no later than two weeks after
the adoption of a shareholders' resolution giving effect to such change in
Unit.
