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OMRON CORPORATION
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of September 2, 2003
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TABLE OF CONTENTS
Page
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PARTIES......................................................................................................... 1
RECITALS........................................................................................................ 1
Section 1. Certain Definitions
(a) ADR Register......................................................................... 1
(b) ADRs; Direct Registration ADRs....................................................... 1
(c) ADS.................................................................................. 1
(d) Custodian............................................................................ 1
(e) Deliver, execute, issue et al. ...................................................... 1
(f) Delivery Order....................................................................... 1
(g) Deposited Securities................................................................. 1
(h) Direct Registration System........................................................... 1
(i) Holder............................................................................... 2
(j) Securities Act of 1933............................................................... 2
(k) Securities Exchange Act of 1934...................................................... 2
(l) Shares............................................................................... 2
(m) Transfer Office...................................................................... 2
(n) Unit ................................................................................ 2
(o) Withdrawal Order..................................................................... 2
Section 2. ADRs ......................................................................................... 2
Section 3. Deposit of Shares ............................................................................ 3
Section 4. Issue of ADRs ................................................................................ 3
Section 5. Distributions on Deposited Securities ........................................................ 3
Section 6. Withdrawal of Deposited Securities ........................................................... 4
Section 7. Substitution of ADRs ......................................................................... 4
Section 8. Cancellation and Destruction of ADRs ......................................................... 4
Section 9. The Custodian ................................................................................ 4
Section 10. Co-Registrars and Co-Transfer Agents ......................................................... 4
Section 11. Lists of Holders ............................................................................. 5
Section 12. Depositary's Agents .......................................................................... 5
Section 13. Successor Depositary ......................................................................... 5
Section 14. Reports ...................................................................................... 5
Section 15. Additional Shares ............................................................................ 5
Section 16. Indemnification .............................................................................. 6
Section 17. Notices ...................................................................................... 6
Section 18. Miscellaneous ................................................................................ 7
Section 19. Jurisdiction; Venue .......................................................................... 7
TESTIMONIUM..................................................................................................... 8
SIGNATURES...................................................................................................... 8
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EXHIBIT A
FORM OF FACE OF ADR............................................................................................ A-1
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Introductory Paragraph................................................................................ A-1
(1) Issuance of ADRs............................................................................. A-2
(2) Withdrawal of Deposited Securities .......................................................... A 2
(3) Transfers of ADRs............................................................................ A-3
(4) Certain Limitations ......................................................................... A-4
(5) Taxes ....................................................................................... A-4
(6) Disclosure of Interests ..................................................................... A-5
(7) Charges of Depositary ....................................................................... A-6
(8) Available Information ....................................................................... A-7
(9) Execution ................................................................................... A-7
Signature of Depositary............................................................................... A-7
Address of Depositary's Office ....................................................................... A-7
FORM OF REVERSE OF ADR......................................................................................... A-8
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(10) Distributions on Deposited Securities ....................................................... A-8
(11) Record Dates ................................................................................ A-9
(12) Voting of Deposited Securities .............................................................. A-9
(13) Changes Affecting Deposited Securities ...................................................... A-9
(14) Exoneration ................................................................................. A-9
(15) Resignation and Removal of Depositary; the Custodian........................................ A-10
(16) Amendment .................................................................................. A-10
(17) Termination ................................................................................ A-11
(18) Change in Unit ............................................................................. A-11
- ii -
DEPOSIT AGREEMENT dated as of September 2, 2003 (the "Deposit
Agreement") among OMRON CORPORATION and its successors (the "Company"), JPMORGAN
CHASE BANK, as depositary hereunder (the "Depositary"), and all holders from
time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited Shares
(defined below). The parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which
is recorded on the Direct Registration System. References to "ADRs" shall
include certificated ADRs and Direct Registration ADRs, unless the context
otherwise requires. The form of ADR is hereby incorporated herein and made a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive ten (10) Shares and a pro rata share
in any other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "Direct Registration System" means the system for the
uncertificated registration of ownership of securities established by The
Depository Trust Company ("DTC") and utilized by the Depositary pursuant to
which the Depositary may record the ownership of ADRs without
the issuance of a certificate, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto. For
purposes hereof, the Direct Registration System shall include access to the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
(i) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the shares of common stock of the Company and shall
include the rights to receive Shares specified in paragraph (1) of the form of
ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Unit" means 100 Shares or such other number of Shares as the
Articles of Incorporation of the Company may provide as a "Unit of Shares" for
the purpose of the Japanese Commercial Code, as such Articles of Incorporation
may be amended from time to time.
(o) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in certificated
form bearing the manual or facsimile signature of anyone who was at the time of
execution a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
2
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares
hereunder, the Depositary or the Custodian may require the following in form
satisfactory to it: (a) a written order directing the Depositary to issue to, or
upon the written order of, the person or persons designated in such order a
Direct Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement. To the extent that the provisions of or governing the
Shares make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably accept, including, without limitation, by causing them to be
credited to an account maintained by the Custodian for such purpose with the
Company or an accredited intermediary, such as a bank, acting as a registrar for
the Shares, together with delivery of the documents, payments and Delivery Order
referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
3
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, upon the Holder thereof filing
with the Depositary a request for such execution and delivery and establishing a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary, unless in any case the Depositary has notice that
such ADR has been acquired by a bona fide purchaser.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Any successor Custodian so appointed (other than JPMorgan
Chase Bank) shall give written notice to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any Custodian may resign from its duties hereunder by at least 30 days
written notice to the Depositary. The Depositary may discharge any Custodian at
any time upon notice to the Custodian being discharged. Any Custodian ceasing to
act hereunder as Custodian shall deliver, upon the instruction of the
Depositary, all Deposited Securities held by it to a Custodian continuing to
act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
4
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within thirty (30) days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company, such resignation not to be effective until the earlier of (i) 90 days
from the date of such notice of resignation and (ii) the date on which the
Company shall have appointed a successor depositary. The Depositary may at any
time be removed by the Company by written notice of such removal.
Notwithstanding anything to the contrary contained herein, in case at any time
the Depositary acting hereunder shall be removed, it shall continue to act as
Depositary for the purpose of terminating this Deposit Agreement pursuant to
paragraph (17) of the form of ADR. Any bank or trust company into or with which
the Depositary may be merged or consolidated, or to which the Depositary shall
transfer substantially all its American depositary receipt business, shall be
the successor of the Depositary without the execution or filing of any document
or any further act.
14. Reports. Promptly after the first date on which the Company makes
any communication available to holders of Deposited Securities or filed with any
securities regulatory authority or stock exchange which has been made public by
such securities regulatory authority or stock exchange, by publication or
otherwise, the Company shall transmit to the Depositary a copy thereof in
English or in Japanese with an English translation or summary. The Company has
delivered to the Depositary, the Custodian and any Transfer Office, a copy of
all provisions of or governing the Shares and any other Deposited Securities
issued by the Company or any affiliate of the Company and, promptly upon any
change thereto, the Company shall deliver to the Depositary, the Custodian and
any Transfer Office, a copy (in English or in Japanese with an English
translation) of such provisions as so changed. The Depositary and its agents may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder
5
any Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with securities laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save
harmless each of the Depositary and its agents against any loss, liability or
expense (including reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the ADRs, as the same may be amended, modified or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or their respective directors, employees, agents and affiliates, except
for any loss, liability or expense directly arising out of the negligence or bad
faith of the Depositary, or (ii) by the Company or any of its directors,
employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary shall indemnify, defend and save harmless the Company
against any loss, liability or expense (including reasonable fees and expenses
of counsel) incurred by the Company in respect of this Deposit Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith of
the Depositary. In no event shall the Depositary or any of its agents be liable
for any indirect, special, punitive or consequential damages.
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxxxx Xxxxxxxxx Xxxxx (00xx Xxxxx)
New York, New York 10081
Attention: ADR Administration
Fax: (000) 000-0000
(b) OMRON Corporation
0-0-00, Xxxxxxxxx, Xxxxxx-xx
0
Xxxxx 000-0000 Xxxxx
Attention: Corporate Planning Division
Investor Relations Dept
Fax: x00-0-0000-0000
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
19. Jurisdiction; Venue. Each of the parties hereto submits to the
jurisdiction of the courts of the State of New York and the courts of the United
States of America located in the Southern District of New York over any suit,
action or proceeding with respect to this Deposit Agreement or the transactions
contemplated hereby. Each of the parties waives any objection it may have to the
venue of any suit, action or proceeding with respect to this Deposit Agreement
or the transactions contemplated hereby in the courts of the State of New York
or the courts of the United States of America, in each case located in the
Borough of Manhattan, City of New York, State of New York or that such suit,
action or proceeding brought in the courts of the Borough of Manhattan of the
City of New York, State of New York was brought in an inconvenient court and
agrees not to plead or claim the same.
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IN WITNESS WHEREOF, OMRON CORPORATION and JPMORGAN CHASE BANK have duly
executed this Deposit Agreement as of the day and year first above set forth and
all holders of ADRs shall become parties hereto upon acceptance by them of ADRs
issued in accordance with the terms hereof.
OMRON CORPORATION
By:
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Name: Yoshinori Suzuki
Title: Executive Officer
JPMORGAN CHASE BANK
By:
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Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
------- No. of ADSs:
Number
-----------
Each ADS represents
ten Shares
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 COMMERCIAL CODE 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
OMRON CORPORATION
(Incorporated under the laws of Japan)
JPMORGAN CHASE BANK, a New York corporation, 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 ten (10) shares 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 OMRON
CORPORATION, a corporation organized under the laws of Japan (the "Company"),
deposited
A-1
under the Deposit Agreement, dated as of September 2, 2003 (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, as amended (the
"Securities Act of 1933") unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of 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.
(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
A-2
the Japanese Commercial Code and the Company's Articles of Incorporation, 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.
(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 (in the case of a Direct Registration ADR), 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 (in the case of Direct Registration ADRs) 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.
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(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.
(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.
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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 0-0-00,
Xxxxxxxxx, Xxxxxx-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
(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
A-5
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.
(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
A-6
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).
(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 furnishes the United States
Securities and Exchange Commission (the "Commission") with certain public
reports and documents required under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended. Such reports and documents may be inspected
and copied at the public reference facilities maintained by the Commission
located at the date of the Deposit Agreement at Judiciary Plaza, 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ...........................
Authorized Officer
The Depositary's office is located at 0 Xxxxx Xxxxxxxxx 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).
A-8
(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
distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record
date set by the Depositary therefor will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the extent such
instructions are not so received by the Depositary from any Holder, the
Depositary shall take such action as is necessary, upon the written request of
the Company and subject to applicable law, the share handling regulations of the
Company and the terms and conditions of the Deposited Securities, to cause such
underlying Shares to be counted for the purposes of satisfying applicable quorum
requirements.
(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 dividend distribution, 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
A-9
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, its agents and
the Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own
and deal in any class of securities of the Company and its affiliates and in
ADRs. The Company has agreed to indemnify the Depositary and its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
against losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. Neither the Company, the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. 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. A resignation by the
Depositary shall not be effective until the earlier of (i) 90 days from the date
of such notice of resignation and (ii) the date on which the Company shall have
appointed a successor depositary. The Depositary may appoint substitute or
additional Custodians and the term "Custodian" refers to each Custodian or all
Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby,
A-10
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 any amendment of or supplement to the Deposit Agreement or the form of
ADR to ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. Upon any resignation of the Depositary which does not
become effective during the time period described in paragraph (15) above or on
any 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.
A-11
