AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
X.X.Xxxxxx
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of
November 10, 2009 (the "Amendment"), to the Deposit Agreement dated as of March
10, 2004 (as amended hereby, the "Deposit Agreement"), among Kao
Corporation, incorporated under the laws of Japan (the "Company"),
JPMorgan Chase Bank, N.A. (fka JPMorgan Chase Bank), as depositary (the
"Depositary"), and all holders from time to time of American depositary receipts
("ADRs") issued thereunder.
W I T N E S S E T H:
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.
1
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.
SECTION
2.02. All references in the Deposit Agreement to
the Depositary shall be references to JPMorgan Chase Bank, N.A., a national
banking association organized under the laws of the United States.
SECTION
2.03. 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
Share.
SECTION
2.04. The definition of "Unit" set forth in
Section 1(n) of the Deposit Agreement is amended to reflect that as of the
Effective Date each Unit represents 100 Shares.
SECTION
2.05. 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.
2
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
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.
SECTION
3.03. The form of ADR, reflecting the amendments
set forth in Sections 3.01 and 3.02 hereof as well as some clarifying amendments
to reflect recent changes in Rule 12g3-2(b), is amended and restated to read as
set forth as Exhibit A hereto.
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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
the amendments set forth herein shall become effective sixteen New York business
days from the date in which the Form F-6 (or an amendment thereto) to which this
Amendment is first filed as an exhibit is filed with the U.S. Securities and
Exchange Commission (the "Effective Date").
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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.
KAO CORPORATION | |||
By:
|
|||
Name: | Xxxxxxxx Xxxxxxxx | ||
Title: | Executive Vice President and Director | ||
JPMORGAN CHASE BANK, N.A. | |||
By:
|
|||
Name: | Xxxxxxx X. Xxxxxxxx | ||
Title: | Vice President | ||
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN AMENDMENT NO. 1 TO
DEPOSIT AGREEMENT
[FORM OF
FACE OF ADR]
__________________ |
No. of
ADSs:
|
Number | |
Each
ADS represents
One
Share
CUSIP:
|
THE
RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE CORPORATION LAW OF
JAPAN AND TO THE COMPANY'S ARTICLES OF INCORPORATION, THE RELEASE OF THE SHARES
UNDERLYING THE ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A UNIT OF 100 SUCH
SHARES (OR SUCH OTHER NUMBER OF SHARES AS THE ARTICLES OF INCORPORATION MAY FROM
TIME TO TIME DESIGNATE AS A "UNIT OF SHARES") OR INTEGRAL MULTIPLES
THEREOF.
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES OF
COMMON STOCK
of
KAO
CORPORATION
(Incorporated
under the laws of Japan)
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JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that _________________ is the registered owner (a "Holder")
of _________ American Depositary Shares ("ADSs"), each (subject to
paragraph (13)) representing one share of common stock (including the rights to
receive 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 KAO CORPORATION,
a corporation organized under the laws of Japan (the "Company"), deposited under
the Deposit Agreement dated as of March 10, 2004 (as amended from time to time,
the "Deposit Agreement") among the Company, the Depositary and all Holders from
time to time of American Depositary Receipts issued thereunder ("ADRs"), each of
whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York.
(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the
Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or, (c) other rights to receive Shares (until such Shares are
actually deposited pursuant to (a) or (b) above, "Pre-released ADRs") only if
(i) Pre-released ADRs are fully collateralized (marked to market daily) with
cash or U.S. government securities held by the Depositary for the benefit of
Holders (but such collateral shall not constitute "Deposited Securities"), (ii)
each recipient of Pre-released ADRs agrees in writing with the Depositary that
such recipient (a) owns such 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 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. 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 the person making
such deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities
Act of 1933 ("Restricted Securities") unless at the time of deposit the
requirements of paragraphs (c), (e), (f) and (h) of Rule 144 shall not apply and
such Shares may be freely transferred and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. To the extent the person depositing Shares is an "affiliate" of the
Company as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied
with and, as a result thereof, all of the ADSs issued in respect of such Shares
will not be, on the sale thereof, Restricted Securities. 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.
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(2) Withdrawal of Deposited
Securities. Subject to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer
Office or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, the Holder hereof is entitled to delivery at the Custodian's
office of the Deposited Securities at the time represented by the ADSs evidenced
by this ADR. At the request, risk and expense of the Holder hereof,
the Depositary may deliver such Deposited Securities at such other place as may
have been requested by the Holder. Upon surrender of an ADR or ADRs by a Holder
to the Depositary, as a result of, and to the extent required by, the operation
of applicable provisions of the Japanese Corporation Law, 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 a Unit or an integral
multiple thereof (the "deliverable portion" of such ADR or ADRs). As
of the date of the Deposit Agreement, a Unit is comprised of 100
Shares. For the purpose of the foregoing sentence, the deliverable
portion shall be determined on the basis of the aggregate number of Shares
represented by the entire amount of the ADSs evidenced by the ADR or ADRs
surrendered by the same Holder at the same time. The Depositary will
promptly advise such Holder as to the number of Shares and Deposited Securities,
if any, represented by the non-deliverable portion of such ADR or ADRs and shall
deliver to such Holder a new ADR evidencing such non-deliverable
portion. In addition, the Depositary shall notify such Holder of the
additional amount of ADSs which such Holder would be required to surrender in
order for the Depositary to effect delivery of all the Shares and Deposited
Securities represented by the ADSs of such Holder. Notwithstanding
any other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
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(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at all
reasonable times will be open for inspection by Holders and the Company for the
purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided
that the Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name this ADR is registered on the ADR Register as the absolute
owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer and duly stamped as may be required by applicable
law; provided
that the Depositary may close the ADR Register at any time or from time to time
when deemed expedient by it or requested by the Company. At the
request of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain
Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any
stock transfer or other tax or other governmental charge, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
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 (including, without limitation, the
Foreign Exchange and Foreign Trade Law of Japan), regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit
Agreement. The issuance of ADRs, the acceptance of deposits of
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.
A-4
(5) Taxes. If
any tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration,
registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until
such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of 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. The Depositary shall, and shall instruct the
Custodian to, forward to the Company or its agent such information from its or
the Custodian's records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
authorities or agencies. 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 or its agent will make reasonable efforts to submit two Application
Forms for Income Tax Convention, or successor forms, as required by Japanese tax
laws, to enable Holders to receive a reduced rate of Japanese withholding tax on
dividends or other benefits under the income tax treaty between the United
States and Japan and any other Japanese tax laws with respect to (a) dividends
and other distributions on Deposited Securities and (b) dispositions of
Deposited Securities. Holders may be required from time to time to file proof of
such Holders' country of tax residence, or to make representations or provide
other information or documents requested by the Depositary. The
Holders and Beneficial Owners (as defined in Paragraph (6) below) may be asked
by the Company, the Depositary and/or the Custodian to indemnify it and its
respective directors, employees and agents against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes,
addition to tax, penalties or interest arising out of the inaccuracy of any
information provided by such Holder and/or Beneficial Owner in order to obtain
any refund of taxes, reduced rate of withholding at source or other tax benefit
on behalf of such Holder and/or Beneficial Owner.
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(6) Disclosure of
Interests. (a) Without prejudice to the requirements of
applicable law concerning disclosure of beneficial ownership of Shares, any
Beneficial Owner (as defined below) of ADSs who becomes, or ceases to be,
directly or indirectly, the Beneficial Owner of more than 5% of all outstanding
Shares (whether such interest is held in whole or only in part through ADRs)
shall, within five days (excluding Saturdays, Sundays and legal holidays in
Japan) following such event, send written notice to the Depositary at its
Transfer Office and to the Company at its principal office in Japan at 14-10,
Nihonbashi Xxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx 000-0000, Xxxxx containing the
following information:
(i) the
name, address and nationality of such Beneficial Owner and all other persons by
whom or on whose behalf such Shares have been acquired or are held; the number
of ADSs and total Shares (including ADSs) beneficially owned, directly or
indirectly, by such Beneficial Owner immediately before and immediately after
the event requiring notification; the names and addresses of any persons other
than the Depositary, the Custodian, or either of their nominees, through whom
such beneficially owned Shares are held, or in whose name such Shares are
registered in the Company's shareholders' register, and the respective numbers
of Shares beneficially held through each such person; the date or dates of
acquisition of the beneficial interest in such Shares; and the number of any
Shares in which such Beneficial Owner has the right to acquire, directly or
indirectly, beneficial ownership and material information as to such right(s) of
acquisition; and
A-6
(ii) the
names, addresses and nationalities of any persons with whom such Beneficial
Owner is acting as a partnership, limited partnership, syndicate or other group
for the purpose of acquiring, holding, voting or disposing of a beneficial
interest in Shares; and the number of Shares being acquired, held, voted or
disposed of as a result of such association (being the total number held by such
group).
Any
Beneficial Owner of more than 5% of all outstanding Shares shall promptly notify
the Depositary and the Company as provided above of any material change in the
information previously notified, including, without limitation, a change of more
than 1% of the percentage of total Shares to which the beneficial ownership
relates.
As used herein, the "Beneficial Owner"
of shares of Stock means a person who, directly or indirectly, through any
contract, trust, arrangement, understanding, relationship, or otherwise, has an
interest in any Shares, including any Shares which underlie any ADS issued
hereunder (including having the right to exercise or control the exercise of any
right conferred by the holding of such Shares or the power to vote or to direct
voting or the power to dispose or to direct disposition), and includes any
Holder of an ADS.
(b) Without
prejudice to the requirements of applicable law and the provisions of the
Company's Articles of Incorporation, any Beneficial Owner of Shares shall, if so
requested in writing by the Company, provide such information with respect to
the beneficial ownership of Shares (including not only Shares underlying ADSs,
but also any other Shares in which such Beneficial Owner has an interest and
including any security convertible into, exchangeable for or exercisable for
Shares) by such Beneficial Owner as is requested by the Company. Such
Beneficial Owner shall provide such information to the Company in writing within
the time specified by the Company. Copies of any such request and
responses shall be contemporaneously sent to the Depositary at its Transfer
Office.
(c) If
the Company notifies the Depositary in writing that a particular Beneficial
Owner has not complied with subsections (a) or (b) above, the Depositary shall
use reasonable efforts not to vote or cause to be voted any Shares held by it or
any Custodian as to which such Beneficial Owner of such Shares shall have failed
to comply with the provisions of subsections (a) or (b) above but only to the
extent that such Beneficial Owner is the Beneficial Owner of an ADR or
ADRs.
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(7) Charges of
Depositary. The Depositary may charge each person to whom ADSs 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 ADSs for withdrawal of Deposited
Securities, U.S. $5.00 for each 100 ADSs (or portion thereof) delivered or
surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such
charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable (i) to
the extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are traded a fee of $.02 or less per ADS
(or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of any stock exchange
or interdealer quotation system upon which the ADSs are traded, a fee of $1.50
per ADR or ADRs for transfers made pursuant to paragraph (3) hereof and (iii) a
fee for the distribution of securities pursuant to paragraph (10) hereof, such
fee being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this paragraph (7) treating all such securities
as if they were Shares) but which securities or the net cash proceeds from the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto. 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), (iv) expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency) and (v) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. These charges may
be changed in the manner indicated in paragraph (16).
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(8) Available
Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute
copies of such communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company publishes information in
English required to maintain the exemption from registration under Rule
12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site
(xxxx://xxx.xxx.xxx/xx/xx/xxxx/) or through an electronic information delivery
system generally available to the public in its primary trading market. The
Company represents that as of the date of the Deposit Agreement, the statements
in the previous sentence of this paragraph (8) with respect to the exemption
from registration under Rule 12g3-2(b) under the Securities Exchange Act of
1934, as amended, are true and correct. The Company agrees to promptly
notify the Depositary and all Holders in the event of any change in the truth of
any such statements. The Depositary does not assume any duty to
determine if the Company is complying with the current requirements
of Rule 12g3-2(b) under the Securities Exchange Act of 1934 or to take any
action if the Company is not complying with those requirements.
(9) Execution. This
ADR shall not be valid for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
..............................................
Authorized Officer
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM OF
REVERSE OF ADR]
(10) Distributions on Deposited
Securities. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute by mail to each Holder entitled
thereto on the record date set by the Depositary therefor at such Holder's
address shown on the ADR Register, in proportion to the number of Deposited
Securities (on which the following distributions on Deposited Securities are
received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a) Cash. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares. (i)
Additional ADRs evidencing whole ADSs representing any Shares available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights. (i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights as
in the case of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any
means that the Depositary may deem equitable and practicable, or (ii) to the
extent the Depositary deems distribution of such securities or property not to
be equitable and practicable, any U.S. dollars available to the Depositary from
the net proceeds of sales of Other Distributions as in the case of
Cash. Such U.S. dollars available will be distributed by checks drawn
on a bank in the United States for whole dollars and cents (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 Stock or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given. Upon receipt of instructions of
a Holder on such record date in the manner and on or before the date established
by the Depositary for such purpose, the Depositary shall, insofar as practicable
and permitted under applicable law and the provisions of the Articles of
Incorporation and Share Handling Regulations of the Company and the provisions
of or governing Deposited Securities, through the appropriate
channels and in a timely manner, vote or cause to be voted the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs in
accordance with such instructions. The Depositary will not itself
exercise any voting discretion in respect of any Deposited
Securities.
To the
extent such instructions are not so received by the Depositary from any Holder,
the Depositary shall deem such Holder to have so instructed the Depositary to
give a discretionary proxy to a person designated by the Company and the
Depositary shall, insofar as practicable and permitted under the provisions of
or governing the Deposited Securities, give a discretionary proxy to a person
designated by the Company to vote the Deposited Securities represented by the
ADSs evidenced by such Holder's ADRs as to which such instructions are deemed to
have been so given, provided that no such
instruction shall be deemed given and no discretionary proxy shall be given with
respect to any matter (x) if the Company does not wish such proxy to be given,
(y) if there is substantial opposition to such matter or (z) if such matter
materially adversely affects the rights of holders of Shares.
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There can
be no assurance that Holders generally or any Holder in particular will receive
the notice described in the paragraph above in time to ensure that the
Depositary will vote the Stock or Deposited Securities in accordance with the
provisions set forth in the preceding paragraph.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any 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.
(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or (ii)
by reason of any exercise or failure to exercise any discretion given it in the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting 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 and their
respective agents acting hereunder 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. Regardless of its responsibilities in paragraph (12), 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, provided that any such action or nonaction is in
good faith, 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 under
certain circumstances. In no event shall the Depositary, the Company or any of
their agents be liable to any Holder or other third party for any indirect,
special, punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
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(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. The Depositary may appoint substitute or additional
Custodians and the term "Custodian" refers to
each Custodian or all Custodians as the context requires.
(16) Amendment. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary, provided that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time
any amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit Agreement
or the form of ADR to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the ADR at any time
in accordance with such changed 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.
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(17) Termination. Upon the
resignation or removal of the Depositary pursuant to the Deposit Agreement, the
Depositary may, and shall at the written direction of the Company, terminate the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary
and its agents will perform no further acts under the Deposit Agreement and this
ADR, except to receive and hold (or sell) distributions on Deposited Securities
and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents.
(18)
Change in Unit.
The Company agrees that it shall give notice to Holders of ADRs of any amendment
to its Articles of Incorporation changing the number of Shares previously
designated as a Unit as soon as practicable but no later than two weeks after
the adoption of a shareholders' resolution giving effect to such change in
Unit.
(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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