AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2, dated
as
of July 30, 2007 (the “Amendment”), to the Amended and Restated Deposit
Agreement dated as of March 21, 2005 as amended as of October 6, 2006 (as so
amended, the "Deposit Agreement"), among XXXXXX
HOLDINGS, INC.,
a joint
stock corporation organized under the laws of Japan, and its successors (the
"Company"), JPMORGAN
CHASE BANK, N.A.,
as
depositary (the "Depositary"), and all Holders and Beneficial Owners from time
to time of American Depositary Receipts issued thereunder ("ADRs")
evidencing American Depositary Shares ("ADSs")
representing deposited Shares.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has filed a Form 15F with the U.S. Securities and Exchange
Commission (the "Commission") in order to seek to terminate the registration
of
its securities under the United States Securities and Exchange Act of 1934,
as
amended (“Exchange Act”), and its obligation to file with the Commission, or
submit to the Commission, reports under Sections 13(a) and 15(d) of the Exchange
Act.
WHEREAS,
the Company desires to amend the Deposit Agreement and the Form of ADR annexed
to the Deposit Agreement as Exhibit A to reflect such change; and
WHEREAS,
pursuant to Section 6.1 of the Deposit Agreement, the Company and the Depositary
deem it necessary and desirable to amend the Deposit Agreement and the Form
of
ADR annexed to the Deposit Agreement as Exhibit A for the purposes set forth
herein;
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement and form of ADR as follows:
1
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.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. All
references in the Deposit Agreement to the terms "Deposit Agreement" and "form
of ADR" shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement and form of ADR as further amended by this
Amendment.
SECTION
2.02. Section
4.12 of the Deposit Agreement is amended to read as follows:
Upon
effectiveness of the termination of the Company’s reporting requirements under
the Exchange Act, the Company shall publish on its website (www. xxxxxx.xx.xx)
on an ongoing basis, or otherwise furnishes the United States Securities and
Exchange Commission (the "Commission") with, certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Exchange Act. To the extent furnished to the Commission, such reports and
documents may be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
00000.
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01. All
references in the form of ADR to the terms "Deposit Agreement" and "form of
ADR"
shall, as of the Effective Date (as herein defined), refer to the Deposit
Agreement and form of ADR as further amended by this Amendment.
2
SECTION
3.02. The
first
two sentences of paragraph (13) of the Form of ADR are amended
to read as follows:
Upon
effectiveness of the termination of the Company’s reporting requirements under
the Exchange Act, the Company shall publish on its website (www. xxxxxx.xx.xx)
on an ongoing basis, or otherwise furnishes the United States Securities and
Exchange Commission (the "Commission") with, certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Exchange Act. To the extent furnished to the Commission, such reports and
documents may be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
00000.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in Japan, nor does any stamp or similar tax or governmental charge
need to be paid in Japan on or in respect of such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
the
open of business New York time on July 31, 2007 (the “Effective
Date”).
3
SECTION
5.02. Outstanding
ADRs.
ADRs
issued prior or subsequent to the Effective Date, which do not reflect the
changes to the form of ADR effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing. From and after the date hereof, the
amendments to the Deposit Agreement effected hereby shall be binding on all
Holders and Beneficial Owners of ADSs issued and outstanding as of the date
hereof and on all Holders and Beneficial Owners of ADSs issued after the date
hereof. The Form of ADR as amended hereby is set forth in Exhibit A
hereto.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.8 of the Deposit Agreement in connection with any and
all liability it or they may incur as a result of the terms of this Amendment
and the transactions contemplated herein.
SECTION
5.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one and
the
same instrument.
SECTION
5.05. Governing
Law. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be wholly performed in
the
State of New York.
4
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.
XXXXXX HOLDINGS, INC. | ||
|
|
|
By: | ||
Name:
Xxxxxxx
Xxx
Title:
General
Manager, Legal
Department
|
||
JPMORGAN CHASE BANK, N.A. | ||
|
|
|
By: | ||
Name: |
||
Title: |
5
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
EXHIBIT
A
[FORM
OF ADR]
Number | CUSIP NUMBER: | |
American Depositary Shares (each American Depositary Share representing one fully paid Share of Common Stock) |
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
SHARES OF COMMON STOCK
of
XXXXXX
HOLDINGS, INC.
(Incorporated
under the laws of Japan)
JPMORGAN
CHASE BANK, N.A., a national banking association organized and existing under
the laws of the United States of America, as depositary (the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADSs"), representing deposited shares of common
stock, including evidence of rights to receive such shares of common stock
(the
"Shares"), of XXXXXX HOLDINGS, INC., a joint stock corporation organized under
the laws of Japan (the "Company"). As of the date of the Deposit Agreement
(as
hereinafter defined), each ADS represents one Share deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement is The Bank of Tokyo - Mitsubishi UFJ, Ltd. (the "Custodian"). The
ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV
and
VI of the Deposit Agreement. The Depositary’s Principal Office is located at 0
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
6
(1) The
Deposit Agreement.
This
American Depositary Receipt is one of an issue of American Depositary Receipts
("ADRs"), all issued and to be issued upon the terms and conditions set forth
in
the Amended and Restated Deposit Agreement, dated as of March 21, 2005 (as
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and the Holders and Beneficial Owners from
time to time of ADSs evidenced by ADRs issued thereunder. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners of ADRs
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to
time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and
with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADS
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement, shall be deemed for all purposes to (a) be a party to
and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to
act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement and the applicable ADR(s), the taking of such actions
to
be the conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this ADR are summaries of certain
provisions of the Deposit Agreement and the Articles of Incorporation of the
Company (as in effect on the date of the signing of the Deposit Agreement)
and
are qualified by and subject to the detailed provisions of the Deposit Agreement
and the Articles of Incorporation, to which reference is hereby made. All
capitalized terms used herein which are not otherwise defined herein shall
have
the meanings ascribed thereto in the Deposit Agreement. The Depositary makes
no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the
ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Withdrawal
of Deposited Securities.
The
Holder of this ADR (and of the ADSs evidenced hereby) shall be entitled to
Delivery (at the Custodian’s designated office) of the Deposited Securities at
the time represented by an integral number of ADS Units evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at
its
Principal Office the ADSs evidenced hereby (and, if applicable, this ADR) for
the purpose of withdrawal of the Deposited Securities represented thereby,
(ii)
if so required by the Depositary, this ADR has been properly endorsed in blank
or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed
and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid,
subject,
however, in each case,
to the
terms and conditions of this ADR, of the Deposit Agreement, of the Company’s
Articles of Incorporation, of any applicable laws and the rules of the Japanese
Securities Depositary Center, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time
thereof.
7
Upon
satisfaction of each of the conditions specified above, the Depositary (i)
shall
cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing
the
ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver (without unreasonable
delay) at the Custodian’s designated office the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of
title
for the Deposited Securities, or evidence of the electronic transfer thereof
(if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose,
subject
however, in each case,
to the
terms and conditions of the Deposit Agreement, of this ADR, of the Articles
of
Incorporation of the Company, of any applicable laws and the rules of the
Japanese Securities Depositary Center, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The
Depositary shall not accept for surrender ADSs representing less than one Share.
In the case of Delivery to it of surrendered ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall return to the person surrendering such ADSs the number of
ADSs
representing any remaining fractional Share. Notwithstanding anything else
contained in this ADR or the Deposit Agreement, the Depositary may make delivery
at the Principal Office of the Depositary of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of
the
Deposited Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so surrendering
ADSs
represented by this ADR, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any
cash
or other property (other than securities) held by the Custodian in respect
of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex
or
facsimile transmission.
(3) Transfer,
Combination and Split-Up of ADRs.
The
Registrar shall register the transfer of this ADR (and of the ADSs represented
hereby) on the books maintained for such purpose and the Depositary shall
(x) cancel this ADR and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by this ADR when canceled, (y) cause the
Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or
upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this ADR has been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at
its
Principal Office for the purpose of effecting a transfer thereof, (ii) this
ADR has been properly endorsed or is accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard securities
industry practice), (iii) this ADR has been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and
all
applicable taxes and governmental charges (as are set forth in Section 5.9
of,
and Exhibit B to, the Deposit Agreement) have been paid, subject,
however, in each case,
to the
terms and conditions of this ADR, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
8
The
Registrar shall register the split-up or combination of this ADR (and of the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of
ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced
by this ADR (when canceled), (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this
ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of
the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and government charges (as are set forth in Section 5.9 of, and Exhibit
B
to, the Deposit Agreement) have been paid, subject,
however, in each case,
to the
terms and conditions of this ADR, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
(4) Pre-Conditions
to Registration, Transfer, Etc.
As a
condition precedent to the execution and delivery, the registration of issuance,
transfer, split-up, combination or surrender, of any ADR, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee
with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges
of
the Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the deposit of particular Shares may
be
refused, or the registration of transfer of ADRs in particular instances may
be
refused, or the registration of transfer of ADRs generally may be suspended,
during any period when the transfer books of the Company, the Depositary, a
Registrar or the Share Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at
any
time or from time to time because of any requirement of law, any government
or
governmental body or commission or any securities exchange upon which the Shares
or ADSs are listed or traded, or under any provision of the Deposit Agreement
or
this ADR, or under any provision of, or governing, the Deposited Securities,
or
because of a meeting of shareholders of the Company or for any other reason,
subject in all cases to paragraph (24) hereof.
9
Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders
are
entitled to surrender outstanding ADSs in integral numbers of ADS Units to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company
or
the deposit of Shares in connection with voting at a shareholders’ meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the ADRs or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Instruction I.A.(l)
of the General Instructions to Form F-6 (as such General Instructions may be
amended from time to time).
(5) Compliance
With Information Requests.
Notwithstanding any other provision of the Deposit Agreement or this ADR, each
Holder and Beneficial Owner of the ADSs represented hereby agrees to comply
with
requests from the Company pursuant to applicable Japanese law, the rules and
requirements of the Tokyo Stock Exchange, and of any other stock exchange on
which Shares or ADSs are, or will be, registered, traded or listed, or the
Articles of Incorporation of the Company, which are made to provide information,
inter
alia,
as to
the capacity in which such Holder or Beneficial Owner owns ADSs (and Shares,
as
the case may be) and regarding the identity of any other person(s) interested
in
such ADSs and the nature of such interest and various other matters, whether
or
not they are Holders and/or Beneficial Owners at the time of such
request.
(6) Ownership
Restrictions.
Notwithstanding any provision of this ADR or of the Deposit Agreement, the
Company may restrict transfers of the Shares where such transfer might result
in
ownership of Shares exceeding limits imposed by applicable law or the Articles
of Incorporation of the Company. The Company may also restrict, in such manner
as it deems appropriate, transfers of ADSs where such transfer may result in
the
total number of Shares represented by the ADSs owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf
of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of
Incorporation of the Company.
(7) Liability
of Holder for Taxes and Other Charges.
Any tax
or other governmental charge payable with respect to any ADR or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to
the
Depositary. The Company, the Custodian and/or Depositary may withhold or deduct
from any distributions made in respect of Deposited Securities and may sell
for
the account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder
and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs,
to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to paragraph (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company,
the
Custodian, and any of their agents, officers, employees and Affiliates for,
and
hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
10
(8) Representations
and Warranties of Depositors.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities, and
(vi) the Shares presented for deposit have not been stripped of any rights
or entitlements. Such representations and warranties shall survive the deposit
and withdrawal of Shares, the issuance and cancellation of ADSs in respect
thereof and the transfer of such ADSs. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at
the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(9) Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit, and any Holder and any Beneficial Owner
may be required, and every Holder and Beneficial Owner agrees, from time to
time
to provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations
and
warranties, and to provide such other information and documentation (or, in
the
case of Shares presented for deposit, such information relating to the
registration of Shares on the books of the Share Registrar) as the Depositary
or
the Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under the Deposit Agreement. The Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any ADR
or
the distribution or sale of any dividend or other distribution of rights or
of
the proceeds thereof or, to the extent not limited by paragraph (24) hereof,
the
delivery of any Deposited Securities until such proof or other information
is
filed or such certifications are executed, or such representations are made
or
such information and documentation are provided, in each case to the
Depositary’s, the Registrar’s and the Company’s satisfaction.
(10) Charges
of Depositary.
The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement:
(i)
to any person to whom ADSs are issued upon the deposit of Shares,
a fee
not in excess of U.S. $5.00 per 100 ADSs (or portion thereof) so
issued
under the terms of the Deposit Agreement (excluding issuances pursuant
to
paragraph (iv) below);
|
11
(ii)
to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities, a fee not in excess of U.S. $5.00 per 100 ADSs
(or
portion thereof) so surrendered;
|
(iii)
to any Holder of ADRs, a fee not in excess of U.S. $2.00 per 100
ADSs (or
portion thereof) held for the distribution of cash dividends or other
cash
distributions (i.e.,
upon the sale of rights and other entitlements) under the terms of
the
Deposit Agreement, unless
prohibited by the exchange upon which the ADSs are listed or traded;
and
|
(iv)
to any Holder of ADRs, a fee not in excess of U.S. $5.00 per 100
ADSs (or
portion thereof) issued pursuant to free stock distributions or upon
the
exercise of rights to purchase additional ADSs unless
prohibited by the exchange upon which the ADSs are listed or traded;
and
|
(v)
to any person presenting an ADR certificate for transfer, a fee not
in
excess of U.S. $1.50 per ADR certificate so presented for
transfer.
|
In
addition, Holders, Beneficial Owners, persons depositing Shares for deposit
and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i)
taxes (including applicable interest and penalties) and other governmental
charges;
|
(ii)
such registration fees as may from time to time be in effect for
the
registration of Shares or other Deposited Securities on the share
register
and applicable to transfers of Shares or other Deposited Securities
to or
from the name of the Custodian, the Depositary or any nominees upon
the
making of deposits and withdrawals,
respectively;
|
(iii)
such cable, telex and facsimile transmission and delivery expenses
as are
expressly provided in the Deposit Agreement to be at the expense
of the
person depositing or withdrawing Shares or Holders and Beneficial
Owners
of ADSs;
|
(iv)
the expenses and charges incurred by the Depositary in the conversion
of
foreign currency;
|
(v)
such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs;
and
|
12
(vi)
the fees and expenses incurred by the Depositary in connection with
the
delivery of Deposited Securities.
|
Any
other
charges and expenses of the Depositary under the Deposit Agreement will be
paid
by the Company upon agreement between the Depositary and the Company. All fees
and charges may, at any time and from time to time, be changed by agreement
between the Depositary and Company but, in the case of fees and charges payable
by Holders or Beneficial Owners, only in the manner contemplated by paragraph
(22) of this ADR. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. The charges and expenses of the
Custodian are for the sole account of the Depositary.
(11) Title
to ADRs.
It is a
condition of this ADR, and every successive Holder of this ADR by accepting
or
holding the same consents and agrees, that title to this ADR (and to each ADS
evidenced hereby) shall be transferable upon the same terms as a certificated
security under the laws of the State of New York, provided that the ADR has
been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company
may
deem and treat the Holder of this ADR (that is, the person in whose name this
ADR is registered on the books of the Depositary) as the absolute owner thereof
for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless such holder is
the
Holder of this ADR registered on the books of the Depositary or, in the case
of
a Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s
representative is the Holder registered on the books of the
Depositary.
(12) Validity
of ADR.
The
Holder(s) of this ADR (and the ADSs represented hereby) shall not be entitled
to
any benefits under the Deposit Agreement, nor shall this ADR (and the ADSs
represented hereby) or be valid or enforceable for any purpose against the
Depositary or the Company, unless this ADR has been (i) dated, (ii) signed
by
the manual or facsimile signature of a duly-authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a
duly-authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers
of
ADRs. ADRs bearing the facsimile signature of a duly-authorized signatory of
the
Depositary or the Registrar, who at the time of signature was a duly authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind
the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary.
(13) Available
Information; Reports; Inspection of Transfer Books.
Upon
effectiveness of the termination of the Company’s reporting requirements under
the Exchange Act, the Company shall publish on its website (www. xxxxxx.xx.xx)
on an ongoing basis, or otherwise furnishes the United States Securities and
Exchange Commission (the "Commission") with, certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Exchange Act. To the extent furnished to the Commission, such reports and
documents may be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
The Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.
13
The
Registrar shall keep books for the registration of issuances and transfers
of
ADRs which at all reasonable times shall be open for inspection by the Company
and by the Holders of such ADRs, provided that such inspection shall not be,
to
the Registrar’s knowledge, for the purpose of communicating with Holders of such
ADRs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the
ADRs.
The
Registrar may close the transfer books with respect to the ADRs, at any time
or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to paragraph (24)
hereof.
Dated:
JPMORGAN
CHASE BANK, N.A. Transfer
Agent
and Registrar
|
JPMORGAN
CHASE BANK, N.A.
as
Depositary
|
|||
By:
|
By:
|
|||
Authorized Signatory |
Authorized
Signatory
|
|||
The
address of the Principal Office of the Depositary is 0 Xxx Xxxx Xxxxx, Xxx
Xxxx,
Xxx Xxxx 00000, X.X.X.
14
[FORM
OF REVERSE OF ADR]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(14) Dividends
and Distributions in Cash, Shares, etc.
Whenever
the Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement,
the
Depositary will (i) if at the time of receipt thereof any amounts received
in a Foreign Currency can, in the judgment of the Depositary (upon the terms
of
the Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of
the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon
the terms described in Section 4.9 of the Deposit Agreement, and
(iii) distribute promptly the amount thus received (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be withheld without liability and dealt
with by the Depositary in accordance with its then current practices . If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
If
any
distribution upon any Deposited Securities consists of a free distribution
of
Shares, the Company shall cause such Shares to be deposited with the Custodian
and registered, as the case may be, in the name of the Depositary, the Custodian
or their respective nominees. Upon receipt of confirmation of the deposit from
the Custodian, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) the Depositary
shall distribute to the Holders as of the ADS Record Date in proportion to
the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in aggregate the number of Shares received as such free distribution, subject
to
the terms of the Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and
(b)
taxes), or (ii) if additional ADSs are not so distributed, each ADS issued
and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interest in the additional integral number
of Shares distributed upon the Deposited Securities represented thereby (net
of
(a) the applicable fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares or ADSs, as the case may be,
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms set forth in the Deposit Agreement. In the event any fractional
ADSs represent fractional Shares, the Company may repurchase such fractional
Shares.
15
In
the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which
the
Depositary is obligated to withhold, or, if the Company in the fulfillment
of
its obligations under the Deposit Agreement, has furnished an opinion of U.S.
counsel determining that Shares must be registered under the Securities Act
or
other laws in order to be distributed to Holders (and no such registration
statement has been declared effective), the Depositary may dispose of all or
a
portion of such property (including Shares and rights to subscribe therefor)
in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable and the Depositary shall distribute
the net proceeds of any such sale (after deduction of (a) taxes and
(b) fees and charges of, and the expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement. In the event any such unsold
balance represents fractional Shares, the Company may repurchase such fractional
Shares.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders of ADSs upon the terms described
in
the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS Record Date according to paragraph (16) and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the distribution shall be made as in the case of a distribution in cash. If
the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon
the
terms described in the Deposit Agreement. If such elective distribution is
not
reasonably practicable or if the Depositary did not receive satisfactory
documentation set forth in the Deposit Agreement, the Depositary shall, to
the
extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in Japan in respect of the Shares for which no election
is made, either (x) cash or (y) additional ADSs representing such
additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of
Shares.
Upon
timely receipt by the Depositary of a notice indicating that the Company wishes
rights to subscribe for additional Shares to be made available to Holders of
ADSs, the Depositary upon consultation with the Company, shall determine,
whether it is lawful and reasonably practicable to make such rights available
to
the Holders. The Depositary shall make such rights available to any Holders
only
if (i) the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received the documentation
contemplated in the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described in the Deposit
Agreement) and establish procedures (x) to distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the
Holders to exercise the rights (upon payment of the subscription price and
of
the applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such
rights. Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise rights to subscribe for
Shares (rather than ADSs). The Company will, in connection with any offer of
such rights, make such rights generally transferable or consent to the transfer
thereof by foreign investors not resident in Japan. So long as the aggregate
number of Shares (i) held by or for United States residents (including any
such
Shares represented by ADSs), (ii) issuable to United States residents upon
conversion of securities convertible into Shares of the Company and (iii)
issuable to United States residents upon exercise of warrants to subscribe
for
Shares of the Company, exceeds 1% of the total number of Shares then
outstanding, if registration under the Securities Act of the securities to
which
any rights relate is required in order for the Company to offer such rights
to
Holders and sell the securities represented by such rights, the Company has
agreed that it will promptly file a registration statement pursuant to the
Securities Act with respect to such rights and securities and use its best
efforts and take all steps available to it to cause such registration statement
to become effective at least 21 days before such rights shall expire. In no
event shall the Depositary make available to the Holders any right to subscribe
for or to purchase any securities (i) unless and until such a registration
statement is in effect, or (ii) unless the offering and sale of such securities
to the Holders are, in the opinion of counsel satisfactory to the Depositary,
exempt from registration under the Securities Act.
16
If
(i)
the Company does not timely request the Depositary to make the rights available
to Holders or if the Company requests that the rights not be made available
to
Holders, (ii) the Depositary fails to receive the documentation required by
the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may deem practicable. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes) upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to make any rights available to Holders or to arrange
for
the sale of the rights upon the terms described above, the Depositary shall
allow such rights to lapse. The Depositary shall not be responsible for (i)
any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise,
or
(iii) the content of any materials forwarded to the ADR Holders on behalf of
the
Company in connection with the rights distribution.
Notwithstanding
anything herein or in the Deposit Agreement to the contrary, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights
to
the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect
or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of
such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian shall
be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all
or a
portion of such property (including Shares and rights to subscribe therefor)
in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or
charges.
17
There
can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as
the
holders of Shares or to exercise such rights. Nothing herein or in the Deposit
Agreement shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
Upon
receipt of a notice indicating that the Company wishes property other than
cash,
Shares or rights to purchase additional Shares, to be made to Holders of ADSs,
the Depositary shall determine whether such distribution to Holders is lawful
and reasonably practicable. The Depositary shall not make such distribution
unless (i) the Company shall have requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property
so
received to the Holders of record, as of the ADS Record Date, in proportion
to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited,
in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable
to
the distribution.
If
the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem practicable and shall (i) cause the proceeds
of
such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to
the Holders as of the ADS Record Date upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary
may
dispose of such property for the account of the Holders in any way it deems
reasonably practicable under the circumstances. In addition, the Company may
repurchase such property.
18
(15) Intentionally
omitted.
(16) Fixing
of ADS Record Date.
Whenever
the Depositary shall receive notice of the fixing of a record date by the
Company for the determination of holders of Deposited Securities entitled to
receive any distribution (whether in cash, Shares, rights or other
distribution), or whenever for any reason the Depositary causes a change in
the
number of Shares that are represented by each ADS, or whenever the Depositary
shall receive notice of any meeting of, or solicitation of consents or proxies
of, holders of Shares or other Deposited Securities, or whenever the Depositary
shall find it necessary or convenient in connection with the giving of any
notice, solicitation of any consent or any other matter, the Depositary shall
fix a record date ("ADS Record Date") for the determination of the Holders
of
ADRs who shall be entitled to receive such distribution, to give instructions
for the exercise of voting rights at any such meeting, to give or withhold
such
consent, to receive such notice or solicitation or to otherwise take action,
or
to exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. Subject to applicable law and the terms and conditions
of this ADR and the Deposit Agreement, only the Holders of ADRs at the close
of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting at which the holders
of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the
ADS
Record Date in respect of such meeting or solicitation of such consent or proxy.
The Depositary shall, if requested by the Company in writing in a timely manner
(the Depositary having no obligation to take any further action if the request
shall not have been received by the Depositary at least thirty (30) days prior
to the date of such vote or meeting), at the Company’s expense and provided no
U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date:
(a) such notice of meeting or solicitation of consent or proxies, (b) a
statement that the Holders at the close of business on the ADS Record Date
will
be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company’s Articles of Incorporation and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized
in
pertinent part by the Company), to instruct the Depositary as to the exercise
of
the voting rights, if any, pertaining to the Deposited Securities represented
by
such Holder’s ADSs and (c) a brief statement as to the manner in which such
voting instructions may be given. Voting instructions may be given only in
respect of an integral number of ADS Units. Upon the timely receipt of voting
instructions from a Holder of ADSs as of the ADS Record Date in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the Deposit
Agreement, the Articles of Incorporation of the Company and the provisions
of
the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities represented by such Holder’s ADSs in accordance with such
instructions.
To the
extent the aggregate of the ADSs voted for and against a proposal do not
constitute an integral multiple of ADS Units, the remainder of the aggregate
number of votes received in excess of the highest multiple of an ADS Unit will
be disregarded.
19
Subject
to applicable law, if the Depositary fails to timely receive voting instructions
from any Holder of ADSs, or if the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder’s
ADSs, (a) the Depositary will deem such Holder to have authorized and
instructed the Depositary to vote or cause to be voted the Deposited Securities
represented by such Holder's ADSs in the same manner that Unvoted Shares are
contemplated to be voted (as indicated on the face of the applicable Japanese
Voting Card) and (b) the Depositary shall vote or cause to be voted the
Deposited Securities represented by such Holder's ADSs in accordance with the
foregoing clause (a).
Neither
the Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the Custodian shall
vote,
attempt to exercise the right to vote, or in any way make use of the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein.
Notwithstanding
anything else contained in the Deposit Agreement or this ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting,
or
solicitation of consents or proxies, of holders of Deposited Securities if
the
taking of such action would violate U.S. laws. The Company agrees to take any
and all actions reasonably necessary to enable Holders and Beneficial Owners
to
exercise the voting rights accruing to the Deposited Securities and to deliver
to the Depositary an opinion of U.S. counsel addressing any actions requested
to
be taken if so requested by the Depositary. There can be no assurance that
Holders generally or any Holder in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions
to
the Depositary in a timely manner.
(18) Changes
Affecting Deposited Securities.
Upon any
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect
of,
such Deposited Securities shall, to the extent permitted by law, be treated
as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company’s approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional ADRs as in the case of a free distribution of Shares, or
call
for the surrender of outstanding ADRs to be exchanged for new ADRs, in either
case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of ADR contained in this Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company’s approval, and shall if the Company requests, subject to
receipt of satisfactory legal documentation contemplated in the Deposit
Agreement, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities and distribute the net proceeds so allocated to
the
extent practicable as in the case of a distribution received in cash pursuant
to
the Deposit Agreement. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such securities
available to Holders in general or any Holder in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
20
(19) Exoneration.
Neither
the Depositary nor the Company shall be obligated to do or perform any act
which
is inconsistent with the provisions of the Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account
of,
or delayed in, doing or performing any act or thing required by the terms of
the
Deposit Agreement and this ADR, by reason of any provision of any present or
future law or regulation of the United States, Japan or any other country,
or of
any other governmental authority or regulatory authority or stock exchange,
or
on account of possible criminal or civil penalties or restraint, or by reason
of
any provision, present or future, of the Articles of Incorporation of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions,
work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Incorporation of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit,
any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision
of
the Deposit Agreement or this ADR.
(20) Standard
of Care.
The
Company and the Depositary assume no obligation and shall not be subject to
any
liability under the Deposit Agreement or this ADR to any Holder(s) or Beneficial
Owner(s), except that the Company and Depositary agree to perform their
respective obligations specifically set forth in the Deposit Agreement and
this
ADR without negligence or bad faith. The Depositary and its agents shall not
be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and
in
accordance with the terms of this Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth
of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness
of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the
Company.
21
(21) Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of resignation delivered to the Company, such resignation to
be
effective on the earlier of (i) the 60th day after delivery thereof to the
Company, or (ii) upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the earlier of (i) the 60th day
after delivery thereof to the Depositary, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office
in
the Borough of Manhattan, the City of New York. Every successor depositary
shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of
all
sums due it and on the written request of the Company, shall (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADRs and such other
information relating to ADRs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice of its
appointment to such Holders. Any corporation into or with which the Depositary
may be merged or consolidated shall be the successor of the Depositary without
the execution or filing of any document or any further act.
(22) Amendment/Supplement.
Subject
to the terms and conditions of this paragraph (22), the Deposit Agreement and
applicable law, this ADR and any provisions of the Deposit Agreement may at
any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable without the prior written consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than the charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADRs until the expiration of thirty (30)
days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADRs. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and
the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be traded solely in electronic book-entry
form
and (ii) do not in either such case impose or increase any fees or charges
to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at
the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s), to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement and this ADR as amended
or
supplemented thereby. In no event shall any amendment or supplement impair
the
right of the Holder to surrender such ADR and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require an
amendment of, or supplement to, the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and this ADR at any time in accordance with such changed laws, rules
or regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
22
(23) Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by providing notice of such termination to the Holders
of
all ADRs then outstanding at least thirty (30) days prior to the date fixed
in
such notice for such termination. If sixty (60) days shall have expired after
(i) the Depositary shall have delivered to the Company a written notice of
its
election to resign, or (ii) the Company shall have delivered to the Depositary
a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided herein and in the Deposit Agreement, the Depositary may terminate
the
Deposit Agreement by providing notice of such termination to the Holders of
all
ADRs then outstanding at least thirty (30) days prior to the date fixed for
such
termination. On and after the date of termination of the Deposit Agreement,
the
Holder will, upon surrender of such Holders’ ADR(s) at the Principal Office of
the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in paragraph (2) hereof and in the Deposit
Agreement and subject to the conditions and restrictions therein set forth,
and
upon payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such ADR. If any ADRs shall remain outstanding after the date
of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADRs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that
the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the
net
proceeds of the sale of any rights or other property, in exchange for ADRs
surrendered to the Depositary (after deducting, or charging, as the case may
be,
in each case the charges of the Depositary for the surrender of an ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from
the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested
the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADRs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all
obligations under the Deposit Agreement with respect to the ADRs, the Deposited
Securities and the ADSs, except to account for such net proceeds and other
cash
(after deducting, or charging, as the case may be, in each case, the charges
of
the Depositary for the surrender of an ADR, any expenses for the account of
the
Holder in accordance with the terms and conditions of the Deposit Agreement
and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
23
(24) Compliance
with U.S. Securities Laws.
Notwithstanding any provisions in this ADR or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Instruction I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(25) Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Paragraph (25), the Depositary,
its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity
as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
that, subject to Japanese law and regulations, the Depositary may issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 (a "Pre-Release
Transaction"),
in
each case only in respect of integral multiples of ADS Units. Each Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant")
to
whom ADSs are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares in its records and to hold
such
Shares or ADSs in trust for the Depositary until such Shares are delivered
to
the Depositary or the Custodian, (y) unconditionally guarantees to deliver
to
the Depositary or the Custodian, as applicable, such Shares, and (z) agrees to
any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days’ notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
any Pre-Release Transaction), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
reasonably appropriate.
The
Depositary may also set limits with respect to the number of ADSs involved
in
Pre-Release Transactions with any one person on a case-by-case basis as it
deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not the earnings thereon, shall be held for the benefit of
the
Holders (other than the Applicant).
24
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR
VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s)
unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated:
Name:
________________________________
By:
Title:
NOTICE:
The signature of the Holder to this assignment must correspond with the name
as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
If
the
endorsement be executed by an attorney, executor, administrator, trustee or
guardian, the person executing the endorsement must give his/her full title
in
such capacity and proper evidence of authority to act in such capacity, if
not
on file with the Depositary, must be forwarded with this ADR.
__________________________
SIGNATURE
GUARANTEED
All
endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
Legends
[The
ADRs issued in respect of Partial Entitlement American Depositary Shares shall
bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' shares of Xxxxxx Holdings, Inc. common stock
and as such do not entitle the holders thereof to the same per-share entitlement
as other shares of Xxxxxx Holdings, Inc. common stock (which are 'full
entitlement' shares of Xxxxxx Holdings, Inc. common stock) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the shares of
Xxxxxx Holdings, Inc. common stock represented by such ADSs become 'full
entitlement' shares of Xxxxxx Holdings, Inc. common
stock."]
25