AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of
January 4, 2009 (the “Amendment”), to the Deposit Agreement dated as of July 8,
1994 (as amended hereby, the “Deposit Agreement”), among Nippon Telegraph and
Telephone Corporation, incorporated under the laws of Japan (the
"Company"), JPMorgan Chase Bank, N.A. (fka Xxxxxx Guaranty Trust Company of New
York), as depositary (the “Depositary”), and all holders from time to time of
American depositary receipts (“ADRs”) issued thereunder.
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 contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement and ADRs.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
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 term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended by this Amendment.
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SECTION 2.02. The ratio of
shares per ADS set forth in Section 1(c) of the Deposit Agreement is amended so
that as of the first business day after the Effective Date, each ADS represents
one-half of one Share.
SECTION 2.03. The
following provision is inserted as Section 19 of the Deposit
Agreement:
Waiver etc.: EACH
PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRs) HEREBY (1) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY) AND (2) AGREES THAT NEITHER THE COMPANY NOR THE DEPOSITARY NOR ANY OF
THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
ARTICLE
III
AMENDMENTS TO THE FORM OF
ADR
SECTION 3.01. All references
in the form of ADR to the number of Shares represented
by each ADS is amended to reflect that each ADS represents one-half of one
Share.
SECTION 3.02. The following is
inserted as paragraph (19) of the form of ADR:
Waiver etc.: EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRs) HEREBY (1) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY) AND (2) AGREES THAT NEITHER THE COMPANY NOR THE DEPOSITARY NOR ANY OF
THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
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SECTION 3.03. The form of ADR,
reflecting the amendments set forth in Sections 3.01 and 3.02
hereof, is amended and restated to read as set forth as Exhibit A
hereto.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
SECTION 4.01. Representations
and Warranties. The Company represents and warrants
to, and agrees with, the Depositary and the Holders, 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. With respect to all ADRs now and hereinafter
outstanding: (i) the amendments set forth in Sections 2.01, 2.02 and 3.01 of
this Amendment shall become effective as the open of business New York time on
January 5, 2009 (the “Effective Date”) and (ii) the amendments set forth in
Sections 2.03 and 3.02 of this Amendment shall become effective thirty days
after notice of such change shall have been provided to current Holders of
ADRs.
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SECTION 5.02. Outstanding
ADRs. ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR effected hereby, do
not need to be called in for exchange and may remain outstanding until such time
as the Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and
all actions deemed necessary to effect the foregoing.
SECTION
5.03. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION 5.04. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one
instrument.
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IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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NIPPON
TELEGRAPH AND TELEPHONE
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CORPORATION
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By:
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Name:
Xxxxxx Xxxxxxxxx
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Title:
Director and Senior Vice President
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
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5
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN AMENDMENT NO. 1 TO
DEPOSIT AGREEMENT
[FORM OF
FACE OF ADR]
THE RIGHT
TO HOLD THIS RECEIPT AND TO DIRECT THE VOTING OF AND TO RECEIVE DISTRIBUTIONS
WITH RESPECT TO, THE SHARES OF NIPPON TELEGRAPH AND TELEPHONE CORPORATION
UNDERLYING THE AMERICAN DEPOSITARY SHARES EVIDENCED BY THIS RECEIPT IS SUBJECT
TO NON-JAPANESE OWNERSHIP RESTRICTIONS UNDER APPLICABLE JAPANESE LAW, AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. ONLY WHOLE SHARES IN MULTIPLES OF
100 MAY BE WITHDRAWN.
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No.
of ADSs:
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Number
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Each
ADS represents
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1/2
of one Share
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
STOCK
of
NIPPON
TELEGRAPH AND TELEPHONE CORPORATION
(Incorporated
under the laws of Japan)
JPMORGAN CHASE BANK, N.A., a national
banking association organized under the laws of the United States, as depositary
hereunder (the "Depositary"), hereby certifies that
is the registered owner (a "Holder") of
American Depositary Shares ("ADSs"), each (subject to paragraph
(13)) representing one-half of one share of Common Stock (including the rights
to receive Shares described in paragraph (1), "Shares" and, together with any
other securities, cash or property from time to time held by the Depositary in
respect or in lieu of deposited Shares, the "Deposited Securities"), of NIPPON
TELEGRAPH AND TELEPHONE CORPORATION, a corporation organized under the laws of
Japan (the "Company"), deposited with a Custodian appointed under the Deposit
Agreement, as Custodian (subject to paragraph (15), the "Custodian"), under the
Deposit Agreement dated as of July 8, 1994 (as amended from time to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York. It is understood that notwithstanding any present
or future provision of the laws of the State of New York, the rights of holders
of Shares and other Deposited Securities, and the duties and obligations of the
Company in respect of such holders, shall be governed by the laws of
Japan.
A-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 whole Shares in form satisfactory to the
Custodian. The Depositary, at its option, may so issue ADRs for such
delivery against such deposit or rights to receive whole Shares (until such
Shares are actually deposited pursuant to the preceding sentence, "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 Shares, (B) assigns all
beneficial right, title and interest therein to the Depositary, (C) holds such
Shares for the account of the Depositary and (D) will deliver such Shares to the
Custodian as soon as practicable and promptly upon demand therefor and (iii) all
Pre-released ADRs evidence not more than 20% of all ADSs (excluding those
evidenced by Pre-released ADRs), except to the extent that the Depositary (in
its sole discretion) determines that unusual market conditions require the
issuance of Pre-released ADRs in addition to 20% of all such
ADSs. Any provision in the Deposit Agreement or this ADR to the
contrary notwithstanding, the Depositary shall indemnify and hold harmless the
Company and the Custodian for any loss, damage, liability or expense resulting
from the issuance of Pre-released ADRs. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement
represents and warrants that such Shares are validly issued and outstanding,
fully paid, nonassessable and free of pre-emptive rights, that such Shares are
owned by a non-resident of Japan for purposes of the Foreign Exchange and
Foreign Trade Control law of Japan, that the person making such deposit is duly
authorized so to do and that such Shares are not "restricted securities" as such
term is defined in Rule 144 under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act. No Shares shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary
(including, without limitation, any certificates of or on behalf of a person
depositing Shares) believed by the Depositary to be genuine that it is owned by
a non-resident of Japan for purposes of the Foreign Exchange and Foreign Trade
Law of Japan. Upon written notification from the Company that any
particular deposit of Shares or deposits of Shares generally are likely (in the
sole discretion of the Company) to exceed the Foreign Ownership Limitation (as
defined in paragraph (6)), the Depositary may, and shall in accordance with
written directions from the Company, refuse to accept new deposits of shares for
such period as the Company may so direct.
A-2
(2) Withdrawal of Deposited
Securities. Subject to paragraphs (4) and (5), upon surrender
of this ADR in form satisfactory to the Depositary at the Transfer Office, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR, provided that the
Depositary will effect the delivery to such Holder of only that portion of
Shares (and any other Deposited Securities relating to such Shares) comprising
100 whole Shares or an integral multiple thereof. If an ADR evidences
ADSs representing a number of Shares that is not a multiple of 100, the
Depositary will deliver at the Transfer Office to a Holder so
surrendering such ADR a new ADR evidencing ADSs representing that
number of Shares that is not a multiple of 100. 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.
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 instruction may be
amended from time to time) under the Securities Act of 1933.
(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, which at all reasonable times
will be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or a
matter relating to the Deposit Agreement and (b) facilities for the delivery and
receipt of ADRs. Title to this ADR (and to the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed or accompanied
by proper instruments of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument under the laws of the State of
New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR
is transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that
the Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company.
(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
Shares 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, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement (including,
without limitations, such regulations that provide that, under specified
circumstances, deposited Shares must be registered in the name of the Depositary
or its nominee prior to the issuance of ADRs with respect
thereto). The issuance of ADRs, the acceptance of deposits of Shares,
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 for any
reason.
A-3
(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 Shares. 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 Shares 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. The
Depositary shall forward to the Company such information
from the Depositary's records as the Company may reasonably
request in connection with any such withholding as will enable the Company to
file any reports it deems advisable with the appropriate governmental agencies,
and either the Company or the Depositary may file any such reports necessary to
obtain benefits under any applicable tax treaties for Holders.
A-4
(6) Restrictions on
Ownership. (a) NTT Law. Under
the NTT Law (The Law Concerning Nippon Telegraph and Telephone Corporation,
Etc.) (the "NTT Law") the aggregate amount of the Company's voting rights which
may be owned by (i) any person who does not have Japanese nationality, (ii) any
non-Japanese government or any of its representatives, (iii) any non-Japanese
juridical person or association and (iv) any juridical person or association (A)
which owns 10% or more of the Company's voting rights and (B) 10% or more of the
voting rights of which are owned by the persons or bodies listed in (i) through
(iii) above (the proportion of the Company's voting rights held by each person
or association described in this clause (iv) is calculated by multiplying the
proportion of such voting rights determined in accordance with clause (A) by the
aggregate of the applicable voting rights of such person or association
determined in accordance with clause (B)), must be less than one-third of the
Company's total voting rights (such limitation, the "Foreign Ownership
Limitation"). The persons or entities described in clause (i) through
(iv) of the foregoing sentence are referred to herein as "Foreign
Persons". Shares owned by Foreign Persons are referred to herein as
"Foreign Owned Shares". Under the NTT Law, the Company is prohibited
from registering Foreign Owned Shares in excess of the Foreign Ownership
Limitation. (b) Application to
ADRs. All Deposited Securities consisting of Shares shall be
deemed Foreign Owned Shares. Each Holder agrees that its ownership of
this ADR or any portion of the ADSs evidenced hereby is subject to the Foreign
Ownership Limitation and the procedures set forth in this paragraph (6) for the
enforcement thereof (including, without limitation, the cancellation of such
ADSs and the forfeiture of transfer rights, the rights to give voting
instructions and the right to receive dividends in respect thereof) and that the
Company's interpretation of the Foreign Ownership Limitation and such procedures
shall be conclusive and binding on such Holder. Each Holder
acknowledges that, under applicable Japanese law, notwithstanding possession by
such Holder or other person of a certificate evidencing a Share or the deposit
in respect of this ADR by such Holder or other person of a Share and the
issuance of this ADR, unless such Share is registered in the Company's Share
register in its name or in the name of the Depositary or its nominee, as the
case may be, such Holder will not be entitled to assert any rights as a
Shareholder against the Company, including, without limitation, any right to
vote such Share or to receive dividends in respect thereof, nor be entitled to
exercise such rights through the Depositary. Each Holder further
acknowledges that the Company effects registration of transfer of Shares on its
Share register in accordance with its customary practice, and accordingly, the
timing with respect to the presentation for registration of deposited Shares by
the Custodian may be affected by how frequently the Company effects such
registration at any time. The Custodian will present deposited Shares
for registration of transfer in accordance with the Deposit
Agreement. (c) Procedures. Whenever
the Company pursuant to the NTT Law declines to register particular Shares
presented by the Custodian for registration in the name of the Depositary or its
nominee on its Share register on the basis that such registration would cause
such Shares to exceed (when aggregated with all Foreign-Owned Shares) the
Foreign Ownership Limitation and notifies the Depositary in writing of such
refusal, the Depositary agrees to use its best reasonable efforts to (i)
determine the Holder of the ADRs evidencing the ADSs representing such Shares,
(ii) stop transfer of such ADRs and disregard any voting instructions in respect
thereof, (iii) notify such Holder that such ADRs may not be transferred or
voted, that such Shares will be delivered to such Holder at the office of the
Custodian or, at the discretion of the Depositary and to the extent practicable,
will be sold by the Depositary on behalf of such Holder in accordance with this
paragraph (6) and that such ADRs will be canceled, (iv) so deliver such Shares,
or at its discretion and to the extent practicable, sell (by public or private
means) such Shares and distribute to such Holder the net proceeds of such sale
as in the case of a cash distribution on Deposited Securities pursuant to
paragraph (10) and (v) cancel such ADRs. To the extent that the
Depositary determines that it is not practicable to determine the Holder of the
ADRs evidencing the ADSs representing such Shares or to implement any of the
other procedures described in the foregoing sentence with respect to such
Holder, the Depositary agrees, on behalf of all Holders, to use its best
reasonable efforts to (i) purchase ADRs in an amount equal to the number of ADRs
evidencing ADSs representing such Shares; (ii) sell (by public or private means)
such Shares and (iii) cancel such ADRs. The Depositary may deduct any
charge, fee or expense arising from or relating to such purchase (including the
purchase price of such ADRs), sale and cancellation from the net proceeds of
such sale, the Holders remaining liable for any deficiency. The
Depositary may deduct from any distributions on or in respect of Deposited
Securities, or may sell by public or private sale for the account of the Holders
any part or all of Deposited Securities, and may apply such deduction or the
proceeds of any such sale in payment of such deficiency, and shall
proportionately reduce the number of ADS evidenced by ADRs then issued and
outstanding to reflect any such sale of shares.
A-5
(7) Charges of
Depositary. The Depositary may charge each person to whom ADRs
are issued against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), and each person surrendering ADRs for withdrawal of Deposited
Securities, up to U.S. $5.00 for each 100 ADSs (or portion thereof) evidenced by
the ADRs delivered or surrendered. 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 Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request of
persons depositing, or Holders delivering Shares, ADRs or Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the registration of transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement) and (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). These charges may be changed in the manner
indicated in paragraph (16).
(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 (as agent of the Depositary 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. At the request of the Company, the Depositary will mail
copies of such communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company is subject to
periodic reporting requirements under the Securities Exchange Act of 1934, and
accordingly files certain reports (and agrees to file all required reports) with
the Securities and Exchange Commission. Such reports and other
information may be inspected and copied at the public reference facilities
maintained by the Commission located at the date of the Deposit Agreement at 000
X Xxxxxx, XX, Xxxxxxxxxx, XX 00000. Such reports and other
information shall be in English to the extent required under the Securities
Exchange Act of 1934.
(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:
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JPMORGAN
CHASE BANK, N.A.,
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as
Depositary
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By
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Authorized
Officer
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The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-6
[FORM OF
REVERSE OF ADR]
(10) Distributions on Deposited
Securities. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute the following 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"), will be distributed
on an averaged or other practicable basis, subject to appropriate adjustments
for (i) 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
and (5) following procedures relating to the Foreign Ownership Limitation
described in paragraph (6). (b) Shares. (i)
Any whole Shares available to the Depositary resulting from a dividend or free
distribution (in the form of a split-up or otherwise) on Deposited Securities
consisting of Shares (a "Share Distribution"), will be distributed in the form
of additional ADRs evidencing whole ADSs. (ii) U.S. dollars
available to the Depositary resulting from the net proceeds of sales of Shares
(including any fraction thereof) received in a Share Distribution, which Shares
would give rise to fractional ADSs to a particular Holder or beneficial owner if
additional ADRs were issued therefore, will be distributed proportionately to
such Holders or beneficial owners as in the case of Cash distributions described
in clause (a) above. To the extent that any Share Distribution
includes a distribution to the Depositary of a fractional Share, the Depositary
shall sell such fractional Shares to the Company in accordance with applicable
provisions of the Japanese Commercial Code or other applicable Japanese
law. (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 Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), will be distributed
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute 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, the Depositary will distribute any U.S. dollars available to it
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, the Depositary will
distribute nothing (and any Rights may lapse). To the extent the
Depositary receives a fractional Share in respect of any Right, the provisions
of the last sentence of paragraph 10(b) shall apply thereto. (d)
Other
Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), will be
distributed 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, the Depositary will distribute any
U.S. dollars available to the Depositary from the net proceeds of sales of Other
Distributions as in the case of Cash. U.S. dollars available to the
Depositary pursuant to this paragraph (10) will be distributed by checks drawn
on a bank in the United States for whole dollars and cents (any fractional cents
being withheld without liability for interest and added to future Cash
distributions).
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(11) Record
Dates. The Depositary may, after consultation with the
Company, if practicable, fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company) 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.
(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 Shares 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 in English, (b) that, subject to paragraph (6), 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 deemed instructions in accordance with the last sentence of this
paragraph. 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, subject to paragraph (6), 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. In voting or causing to vote the Deposited Securities, to the
extent that the Depositary receives instructions with respect to a fractional
interest in a Share (which, together with other such interests with respect to
which similar instructions are received, cannot be aggregated into a whole
Share), the Depositary shall round down the number of Shares to be voted
pursuant to such instructions to the nearest whole Share. The Depositary will
vote or cause to be voted any such fractional interest in a Share as if no
instructions from a Holder were received with respect to such fractional
interest. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the
extent such instructions are not so received by the Depositary from any Holder,
subject to paragraph (6), the Depositary shall deem such Holder to have
instructed the Depositary to vote or cause to be voted the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs in favor of any
proposals or recommendations of the Company, and the Depositary shall endeavor
insofar as practicable and permitted under the provisions of or governing
Deposited Securities to vote or cause to be voted such Deposited Securities in
accordance with such deemed instructions.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR after consultation with the Company, 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 Share
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.
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(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
Security, 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) 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; or (d) 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 Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, the Company, their agents
and each of them 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 or its agents. 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 those listed
in clauses (i) through (iv) of paragraph (7), namely stock transfer or other
taxes and other governmental charges, cable, telex and facsimile transmission
and delivery charges, transfer or registration fees, and expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars), 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 at the expiration of
such 30 days shall be deemed by holding such ADR to consent and agree to such
amendment and to be bound by the Deposit Agreement or the ADR as amended
thereby.
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(17) Termination. The
Depositary 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. The Depositary may terminate the Deposit Agreement upon
the notice set forth in the preceding sentence, at any time after 90 days after
the Depositary shall have resigned if no successor depositary shall have been
appointed and accepted its appointment within such 90 days. After the
date so fixed for termination, the Depositary and its agent will perform no
further acts under the Deposit Agreement and this ADR, except to advise Holders
of such termination, 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 (by public or private means) 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 this Deposit Agreement except for
its obligations to the Depositary and its agents.
(18) Reporting of Substantial
Shareholdings. The Securities and Exchange Law of Japan, as in
effect at the date of the Deposit Agreement, requires any person who has become,
beneficially and solely or jointly, a holder of more than 5% of the total issued
shares (including shares represented by ADSs evidenced by ADRs) of a company
listed on any Japanese stock exchange, including the Company, to file with a
local financial bureau of the Ministry of Finance of Japan within five business
days a report concerning such shareholdings. Such local financial
bureau is authorized to review such filing. A similar report must also be made
in respect of any subsequent change of 1% or more in any such
holding. For this purpose, shares issuable to such person upon
conversion of convertible securities or exercise of share subscription warrants
are taken into account in determining both the number of shares held by such
holder and the issuer's total issued share capital. Copies of each
such report must also be furnished to the issuer of such shares and all Japanese
stock exchanges on which the shares are listed.
(19) Waiver etc.: EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRs) HEREBY (1) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY) AND (2) AGREES THAT NEITHER THE COMPANY NOR THE DEPOSITARY NOR ANY OF
THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
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