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MITSUI & CO., LTD.
(Mitsui ▇▇▇▇▇▇ Kabushiki Kaisha)
and
CITIBANK, N.A.,
as Depositary
and
All HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AND EUROPEAN DEPOSITARY RECEIPTS
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Amendment No. 1
to
Deposit Agreement
Dated as of [Month][Date], 2005
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AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT, is made as of [Month][Date], 2005
(the "2005 Amendment"), by and among Mitsui & Co., Ltd. (Mitsui ▇▇▇▇▇▇ Kabushiki
Kaisha), a corporation incorporated and existing under the laws of Japan (the
"Company"), CITIBANK, N.A., a national banking association organized under the
laws of the United States of America and acting solely as depositary (the
"Depositary"), and all holders from time to time of American Depositary Receipts
and European Depositary Receipts issued under the Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the Company, the Depositary and the holders of American
Depositary Receipts and European Depositary Receipts issued thereunder entered
into that certain Deposit Agreement, dated as of October 1, 1982, restating,
amending and consolidating (i) the deposit agreement, dated as of April 15,
1963, as amended and restated as of September 30, 1974, and as amended by
Amendment No. 1, dated as March 31, 1975 and by Amendment No. 2, dated as of
September 30, 1975, among the Company, First National City Bank, as depositary,
and the holders of American depositary receipts issued thereunder; and (ii) the
deposit agreement, dated as of December 15, 1968, as amended and restated as of
September 30, 1974, and as amended by Amendment No. 1, dated as of March 31,
1975 and by Amendment No. 2, dated as of September 30, 1975, among the Company,
First National City Bank, as depositary, and the holders of European Depositary
Receipts issued thereunder (as restated, amended and consolidated, the "Original
Deposit Agreement"), with respect to the American Depositary Receipts ("ADRs")
evidencing American Depositary Shares ("ADSs"), and European Depositary Receipts
("EDRs") evidencing European Depositary Shares ("EDSs"), in each case
representing Stock (as defined in the Original Deposit Agreement) deposited
thereunder;
WHEREAS, the Company is seeking to delist the EDSs from the Luxembourg
Stock Exchange;
WHEREAS, the Company, in connection with the delisting of the EDSs from
the Luxembourg Stock Exchange, wishes to terminate its EDR facility and desires
to amend the Deposit Agreement to reflect such delisting and termination; and
WHEREAS, the Company and the Depositary deem it necessary and desirable to
amend the Original Deposit Agreement and the form of ADR annexed thereto as
Exhibit A pursuant to Section 6.01 of the Deposit Agreement, to achieve the
purposes set forth herein;
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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 Original Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Original Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
date set forth above and as of which this Amendment shall become effective.
ARTICLE II
TERMINATION OF EDR FACILITY AND DELISTING OF EDSs
SECTION 2.01. Termination. The Company and the Depositary agree that the
EDR facility created pursuant to the Original Deposit Agreement will terminate
effective upon the expiration of three months after notice of this 2005
Amendment is given to record holders of all outstanding ADRs and notice is
published for the holders of all outstanding EDRs as provided in Section 7.04 of
the Original Deposit Agreement. If any EDRs remain outstanding after the date of
the termination, the Depositary shall thereafter act in respect of such
outstanding EDRs in accordance with the provisions of Section 6.02 of the
Original Deposit Agreement which proscribes actions to be taken in respect of
Receipts that remain outstanding upon the termination of the Deposit Agreement.
SECTION 2.02. Delisting. Upon delisting of the EDSs from the Luxembourg
Stock Exchange, the Company agrees to promptly deliver a written notice to the
Depositary.
ARTICLE III
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 3.01. Deposit Agreement. All references in the Original Deposit
Agreement to the term "Deposit Agreement" shall, as of the Effective Date, refer
to the Deposit Agreement, dated as of October 1, 1982, restating, amending and
consolidating (i) the deposit agreement, dated as of April 15, 1963, as amended
and restated as of September 30, 1974, and as amended by Amendment No. 1, dated
as March 31, 1975 and by Amendment No. 2, dated as of September 30, 1975, among
the Company, First National City Bank, as depositary, and the holders of
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American depositary receipts issued thereunder; and (ii) the deposit agreement,
dated as of December 15, 1968, as amended and restated as of September 30, 1974,
and as amended by Amendment No. 1, dated as of March 31, 1975 and by Amendment
No. 2, dated as of September 30, 1975, among the Company, First National City
Bank, as depositary, and the holders of European Depositary Receipts issued
thereunder, as further amended by this 2005 Amendment.
SECTION 3.02. Deletion of all references relating to EDRs. As of the
Effective Date, all references made to "EDRs", "EDSs", "holders of EDRs",
"holders of EDSs", "Principal Office in London", "coupons", "talons",
"interchange of Receipts", "Subdepositary", "Subdepositaries", "office of
Subdepositary", "offices of Subdepositaries", "Section 2.06", "Section 2.10",
"Section 4.09" or "Section 7.06" in the Original Deposit Agreement and in all
ADRs issued, prior to the Effective Date, which remain outstanding after the
Effective Date, shall be deleted.
SECTION 3.03. Deletion of all references relating to par value. As of the
Effective Date, all references made to "par value" or "par value 50 yen per
share" in the Original Deposit Agreement and in all ADRs issued, prior to the
Effective Date, which remain outstanding after the Effective Date, shall be
deleted.
SECTION 3.04. Definitions.
(a) Amendment to the Definitions. As of the Effective Date,
definitions of the terms "Corporate Trust Office in New York City",
"Depositary", "Depositary Shares; American Depositary Shares", "Receipt" and
"Record Holder; Holder" in Article 1 of the Original Deposit Agreement shall be
deleted and replaced in their entirety with the definition of each of the terms
set forth below:
"The term "Company" shall mean Mitsui & Co., Ltd. (Mitsui ▇▇▇▇▇▇
Kabushiki Kaisha), incorporated under the laws of Japan and having
its registered office at 2-1, Otemachi 1-chome, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇, and its successors."
"The term "Corporate Trust Office in New York City" shall mean the
office of the Depositary at which its depositary receipts business
shall, at any particular time, be principally administered, which
office presently is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇."
"The term "Custodian" shall mean Mizuho Corporate Bank, Ltd. and/or
Sumitomo Mitsui Banking Corporation, collectively or individually as
the context may require, corporations organized and existing under
the laws of Japan and having their main offices in Tokyo, Japan,
agents of the Depositary for the purposes of this Deposit Agreement,
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their respective successors as custodian hereunder and any other
firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.05 as a substitute
custodian hereunder."
"The term "Depositary" shall mean Citibank, N.A., a national banking
association incorporated and existing under the laws of the United
States of America, at the Corporate Trust Office in New York City,
and its successors as depositary hereunder."
"The term "Depositary Shares" shall mean American Depositary Shares
as defined in this Deposit Agreement. The term "American Depositary
Shares" shall mean the rights evidenced by the American Depositary
Receipts issued under this Deposit Agreement and the interests in
the Deposited Securities represented thereby. Each Depositary Share
shall represent 20 shares of Stock plus any and all other Deposited
Securities received by the Depositary or the Custodian in respect of
such shares and at the time held under this Deposit Agreement."
"The term "Receipt" shall mean the American Depositary Receipts
issued hereunder."
"The term "record holder" shall mean the holder in whose name such
Receipt shall be recorded on the books of the Depositary. The term
"holder" shall mean, if the American Depositary Receipt is not
properly endorsed or accompanied by a properly executed instrument
of transfer, the record holder thereof, or, if properly endorsed or
accompanied by a properly executed instrument of transfer and
delivered to any specified person, such person, or if properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank, the bearer thereof."
"The term "unit" shall mean 1,000 shares of Stock or such other
number of shares of Stock 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."
As of the Effective Date, definition of the term "2005 Amendment" shall be added
to Article 1 of the Original Deposit Agreement:
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"The term "2005 Amendment" shall mean this Amendment No. 1 to the
Deposit Agreement, dated [Month][Date], 2005".
(b) Deletion of the Definitions. As of the Effective Date,
definitions of the terms "Authorized Newspaper", "European Depositary Shares",
"European Depositary Receipt", "Principal Office in London" and "Subdepositary"
in Article 1 of the Original Deposit Agreement shall be deleted in their
entirety from the Original Deposit Agreement.
SECTION 3.05. Deletions of Sections. As of the Effective Date, Sections
2.06, 2.10, 4.09 and 7.06 of the Original Deposit Agreement shall be deleted in
their entirety from the Deposit Agreement and in lieu of renumbering all
sections in the Deposit Agreement, immediately following such section number the
following text shall be inserted "[intentionally blank as a result of the 2005
Amendment]" .
SECTION 3.06. Custodian. As of the Effective Date, any references to "Fuji
Bank, Limited" and "The Mitsui Bank, Limited" shall be deleted in their entirety
from the Deposit Agreement and replaced with "Mizuho Corporate Bank, Ltd." and
"Sumitomo Mitsui Banking Corporation", respectively.
SECTION 3.07. Voting Rights. As of the Effective Date, Section 4.07 of the
Original Deposit Agreement shall be amended by deleting the first sentence of
the first paragraph and replacing it in its entirety with the following:
"Upon receipt of notice of the fixing of a record date by the
Company for any meeting of holders of Stock or other Deposited
Securities, the Depositary shall, as soon as practicable after
fixing a record date for determining the record holders of American
Depositary Receipts entitled to give instructions for the exercise
of voting rights, as provided in Section 4.06, and after receipt
from the Company of notice of such meeting, mail to the record
holders of American Depositary Receipts (a) a notice which shall
contain such information as is contained in such notice of such
meeting and (b) a statement that the record holders of American
Depositary Receipts at the close of business on a specified record
date will be entitled, subject to any applicable provisions of law
and of the Articles of Incorporation of the Company, to instruct the
Depositary as to the exercise of the voting rights pertaining to the
amount of Stock or other Deposited Securities represented by their
respective American Depositary Shares, and a brief statement as to
the manner in which such instructions may be given, including an
express indication that instructions may be given to the Depositary
to give a discretionary proxy to a person designated by the Company.
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SECTION 3.08. Reports to Receipt Holders; Financial Statements. As of the
Effective Date, Section 5.06 of the Original Deposit Agreement shall be amended
by deleting the first paragraph and replacing it in its entirety with the
following:
"The Company will, as promptly as practicable after March 31 and September
30 of each year, furnish to the Depositary, in form for presentation to
holders of Depositary Receipts, upon their request, a report which shall
contain (a) in the case of each twelve-month period ended March 31, a
consolidated balance sheet of the Company as at the end of such period and
consolidated statements of income and retained earning of the Company for
the twelve months then ended, (b) in the case of each six-month period
ending September 30, consolidated statements of income and retained
earning of the Company for the six months then ended, and (c) an English
translation of substantially the same textual material contained or to be
contained in the report, if any, for such period made or to be made
generally available by the Company to holders of its Stock, except that
such textual material may be appropriately revised in order to reflect any
differences between the financial statements contained in such report and
the financial statements referred to in (a) and (b) above of this Section.
At the Company's expense, the Depositary will arrange for the mailing of
such reports and statements to the record holders of American Depositary
Receipts."
SECTION 3.09. Amendment. As of the Effective Date, Section 6.01 of the
Original Deposit Agreement shall be amended by deleting the second sentence of
the first paragraph and replacing it in its entirety with the following:
"Any amendment which shall impose or have the effect of increasing any
fees or charges payable by the holders of Receipts (other than taxes and
other governmental charges, registration fees and cable, telex or
facsimile transmission and delivery expenses and any other fees and
charges provided for herein), or which shall otherwise prejudice any
substantial existing right of holders of Receipts, shall not become
effective as to outstanding Receipts until the expiration of three months
after notice of such amendment shall have been given to the record holders
of outstanding American Depositary Receipts."
SECTION 3.10. Termination. As of the Effective Date, Section 6.02 of the
Original Deposit Agreement shall be amended by deleting the first sentence of
the first paragraph and replacing it in its entirety with the following:
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"The Depositary shall, if the Company at any time so requests, terminate
this Deposit Agreement by mailing notice of such termination to the record
holders of all American Depositary Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination."
SECTION 3.11. Notices. As of the Effective Date, Section 7.04 of the
Original Deposit Agreement shall be amended by deleting the second paragraph and
replacing it in its entirety with the following and shall also be amended by
deleting the fourth and sixth paragraph in its entirety:
"Any and all notices to be given to the Depositary shall be deemed
to have been duly given if personally delivered or sent by mail,
first class air mail postage prepaid, or by cable, telex or
facsimile transmission confirmed by letter, addressed to Citibank,
N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Depositary Receipts Department or any other place to which the
Depositary may have transferred its Corporate Trust Office in New
York City."
ARTICLE IV
ADRs
SECTION 4.01. Outstanding ADRs. From and after the Effective Date, all
ADRs issued, prior to the Effective Date, which remain outstanding after the
Effective Date, are hereby considered to have been replaced with the Form of ADR
substantially in the form attached hereto as Exhibit A.
SECTION 4.02. Form of ADR. From and after the Effective Date, the Form of
ADR shall be substantially in the form attached hereto as Exhibit A.
SECTION 4.03. Form of EDR. From and after the Effective Date, the Form of
EDR attached as Exhibit B to the Original Deposit Agreement shall be deleted
from the Deposit Agreement in its entirety.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
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(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been, respectively,
duly and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Original Deposit
Agreement as amended hereby, and any other document furnished hereunder or
thereunder in Japan, neither of such agreements need to be filed or
recorded with any court or other authority in Japan, nor does any stamp or
similar tax need to be paid in Japan on or in respect of such agreements;
and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Form of Legend. The form of legend attached as Exhibit C to
the Original Deposit Agreement shall only be included as a legend on the face of
American Depositary Receipts.
SECTION 6.02. New Receipts. From and after the Effective Date, the
Depositary shall arrange to have new American Depositary Receipts printed or
amended that reflect the changes to the form of Receipt affected by this
amendment. All American Depositary Receipts issued hereunder after the Effective
Date, once such new American Depositary Receipts are available, whether upon the
deposit of Stock or other Deposited Securities or upon the transfer, combination
or split-up of existing Receipts, shall be substantially in the form of the
specimen Receipt attached as Exhibit A hereto. However, American Depositary
Receipts issued prior or subsequent to the date hereof, which do not reflect the
changes to the form of American Depositary Receipt 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. However, the Company hereby directs the Depositary to exchange ADRs
issued in the name of the Depository Trust Company or the nominee of the
Depository Trust Company. The Depositary is authorized and directed to take any
and all actions deemed necessary to effect the foregoing.
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SECTION 6.03. Notice of Amendment to ADR and EDR Holders. The Depositary
is hereby directed to send notices informing the holders of ADRs of (i) the
terms of this Amendment, (ii) the Effective Date of this Amendment and (iii)
that the holders of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 6.02 hereof. In addition, the
Depositary is hereby directed to publish a notice to holders of EDRs in a
newspaper in New York, London, and to the extent required by law or applicable
stock exchange regulations, in Luxembourg of (i) the terms of this Amendment and
(ii) the Effective Date of this Amendment and (iii) the termination of the EDR
facility.
SECTION 6.04. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 6.05. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Original Deposit Agreement as originally
executed shall remain in full force and effect.
SECTION 6.06. Interpretation. From and after the Effective Date, any
interpretation of the terms and conditions of the Deposit Agreement and all ADRs
issued, prior to the Effective Date which remain outstanding after the Effective
Date, shall reflect the intent of the parties hereto to terminate the EDR
facility and to implement the amendments set forth in this 2005 Amendment.
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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.
MITSUI & CO., LTD.
By:
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Name:
Title:
CITIBANK, N.A., as Depositary
By:
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Name:
Title:
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EXHIBIT A
AMERICAN DEPOSITARY RECEIPT
For Common Stock of
MITSUI & CO., LTD.
(Mitsui ▇▇▇▇▇▇ Kabushiki Kaisha)
(Incorporated under the Laws of Japan)
No. ..................American Depositary Shares
(Each such share representing 20 shares in registered
form of Common Stock)
(1) CITIBANK, N.A., a national banking association under the laws of
the United States of America, having its corporate trust office at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Depositary (the "Depositary"), hereby
certifies that _____________is the owner of ______________ American Depositary
Shares (the "Depositary Shares"), representing shares in registered form of the
Common Stock (the "Stock"), of Mitsui & Co., Ltd. (Mitsui ▇▇▇▇▇▇ Kabushiki
Kaisha), incorporated under the laws of Japan (the "Company"). Each such
Depositary Share represents 20 shares of Stock at the date hereof, deposited at
Mizuho Corporate Bank, Ltd. or Sumitomo Mitsui Banking Corporation in Tokyo,
Japan (herein, collectively or individually as the context may require, called
the "Custodian" and such offices, collectively or individually as the context
may require, called the "designated office" of the Custodian), as agent of the
Depositary.
(2) The Deposit Agreement. American Depositary Receipts, of which
this Receipt is one, (the "Receipts") are made available to shareholders of the
Company who are not residents of Japan upon the terms and conditions set forth
in the Deposit Agreement, dated as of October 1, 1982, as amended by Amendment
No. 1 dated as of [Month][Date], 2005 (as amended, the "Deposit Agreement"),
among the Company, the Depositary, and all holders from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and becomes bound by all the terms and provisions thereof. The Deposit
Agreement sets forth the rights of holders of the Receipts and the rights and
duties of the Depositary in respect of the Stock deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of any of such Stock and held thereunder (the "Deposited Securities").
Copies of the Deposit Agreement are on file at the corporate trust office of the
Depositary and the designated office of the Custodian in Tokyo. The statements
made on the face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the detailed provisions
thereof, to which reference is hereby made and the terms used herein have the
meanings set forth therein unless otherwise defined herein.
(3) Surrender of Receipts and Withdrawal of Stock. Upon surrender of
this Receipt at the corporate trust office of the Depositary in New York City
and upon payment of the fee of the Depositary provided in paragraph (10) of this
Receipt, and subject to the terms and conditions of the Deposit Agreement, the
holder hereof is entitled to delivery to him or upon his order of the amount of
Stock and any other Deposited Securities at the time represented hereby;
provided, however, that upon surrender of a Receipt or Receipts by a holder
thereof to the Depositary, then as a result of, and to the extent required by,
the operation of applicable provisions of the Japanese Commercial Code or any
other Japanese law, the Depositary will effect the delivery to such holder of
only that portion of Stock (and any other Deposited Securities relating to such
Stock) comprising a unit of 1,000 shares of Stock (or such other number of
shares of Stock as the Articles of Incorporation of the Company may designate as
a "Unit of Shares") or an integral multiple thereof (the "deliverable portion"
of such Receipt or Receipts). For the purpose of the foregoing sentence, the
deliverable portion shall be determined on the basis of the aggregate number of
shares of Stock represented by the entire amount of the American Depositary
2
Shares evidenced by such Receipt or Receipts surrendered by the same holder at
the same time. The Depositary will promptly advise such holder as to the amount
of Stock and Deposited Securities, if any, represented by the non-deliverable
portion of such Receipt or Receipts and shall deliver to such holder a new
Receipt evidencing such non-deliverable portion. In addition, the Depositary
shall notify such holder of the additional amount of Depositary Shares which
such holder would be required to surrender in order for the Depositary to effect
delivery of all the Stock and Deposited Securities represented by the Depositary
Shares of such holder.
(4) Transfers; Split-ups; Combinations of Receipts. This Receipt is
transferable in the records of the Depositary by the holder hereof in person or
by duly authorized attorney, upon surrender of this Receipt at the corporate
trust office of the Depositary in New York City, properly endorsed or
accompanied by proper instruments of transfer and duly stamped, and upon such
transfer the Depositary shall execute and deliver an American Depositary Receipt
to or upon the order of the person entitled thereto, as provided in the Deposit
Agreement. This Receipt may be split into other American Depositary Receipts or
may be combined with other American Depositary Receipts into one American
Depositary Receipt, evidencing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered, upon payment of any taxes and
other charges contemplated by the last sentence of paragraph (10) hereof.
(5) Conditions to Execution and Delivery, Registration of Transfer,
etc. of Receipts. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender or interchange of
any Receipt, the Depositary or the Custodian may require payment of a sum
sufficient for reimbursement of any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Stock being deposited or withdrawn) and
3
payment of any applicable fee as provided in paragraph (10) of this Receipt, may
require proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as may
be established consistent with the provisions of the Deposit Agreement. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of citizenship or residence, evidence of
the number of shares of Stock beneficially owned or any other matters necessary
or appropriate to evidence compliance with the Foreign Exchange and Foreign
Trade Control Law of Japan, or other information and to execute such
certificates and make such representations and warranties as the Depositary may
deem necessary or proper. The Depositary may withhold the delivery or transfer
of any Receipt or the distribution or sale of any dividend or other distribution
or rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
(6) Suspension of Delivery, Transfer, etc. The delivery of Receipts
against deposits of Stock generally may be suspended, or the delivery of
Receipts against deposits of particular Stock may be withheld, or the
registration of transfer of Receipts in particular instances may be refused, or
the registration of transfer or surrender of outstanding Receipts generally may
be suspended, during any period when the transfer records of the Depositary or
the register of shareholders of the Company is closed, or if any such action is
deemed necessary or advisable by the Depositary or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of the Deposit Agreement
4
or for any other reason. Without limitation of the foregoing, the Depositary
will not knowingly accept for deposit under the Deposit Agreement any Stock
required to be registered under the Securities Act of 1933, unless a
registration statement is in effect as to such Stock.
(7) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable by the Depositary with respect to this Receipt or
any Deposited Securities represented hereby, such tax or other governmental
charge shall be payable by the holder hereof to the Depositary. The Depositary
may refuse to effect any transfer or interchange of this Receipt, or any
withdrawal of Deposited Securities represented hereby, until such payment is
made, and may withhold any dividends or other distributions, or may sell (after
attempting by reasonable means to notify the holder prior to such sale) for the
account of the holder hereof any part or all of the Deposited Securities
represented hereby, and may apply such dividends or other distributions or the
proceeds of any such sale toward such tax or other governmental charge, the
holder hereof remaining liable for any deficiency.
(8) Warranties by Depositor. Every person depositing Stock under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock is validly issued and outstanding, fully paid and non-assessable, that
such Stock is owned by a non-resident of Japan and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Stock and the issuance of Receipts in respect thereof.
(9) Amendment of Deposit Agreement. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable. Any amendment which shall impose or have
the effect of imposing or increasing any fees or charges payable by the holders
of Receipts (other than taxes or other governmental charges, registration fees
and cable, telex or facsimile transmission and delivery expenses and any other
fees provided for in the Deposit Agreement) or which shall otherwise prejudice
any substantial existing right of holders of Receipts shall, however, not become
5
effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the record holders of Receipts
as provided in the Deposit Agreement. Every holder of a Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, 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 hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby, except in order to comply with
mandatory provisions of applicable law.
(10) Charges of Depositary. The Depositary will charge the party to
whom Receipts are delivered against deposits of Stock (other than Stock
deposited pursuant to Sections 4.03 and 4.04 of the Deposit Agreement relating
to stock dividends, free distributions of Stock and rights offerings) and the
party surrendering Receipts for delivery of Stock and other Deposited
Securities, as follows:
Rate Per Each 100
Market Price Per American Depositary Shares
American Depositary Share or Fraction Thereof
on Delivery or Surrender Delivered or Surrendered
------------------------ ------------------------
Below $5.00 ...................................... $3.00
$5.00 -- $10.00 .................................. $4.00
Over $10.00 ...................................... $5.00
The Company will pay other charges of the Depositary (subject to consultation
and agreement between the Company and the Depositary), with the exception of
taxes and other governmental charges, stock transfer or registration fees on
deposits or transfers of Stock, and such cable, telex or facsimile transmission
and delivery charges as are expressly provided in the Deposit Agreement to be at
the expense of persons depositing Stock or holders of Receipts.
6
(11) Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by properly executed instruments of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until this Receipt shall be transferred on
the books of the Depositary as provided in the Deposit Agreement, the
Depositary, notwithstanding any notice to the contrary, may treat the record
holder hereof for the time being as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(12) Dividends and Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Deposited Securities, the
Depositary will, if at the time of receipt thereof any non-dollar currency
amounts so received can in its judgment be converted (at the official or other
rate of exchange) on a reasonable basis into United States dollars, convert such
dividend or distribution into United States dollars and will distribute the
amount thus received to the holders of Receipts entitled thereto, in proportion
to the number of Depositary Shares held by them, respectively; provided,
however, that the amount distributed on any Receipt will be reduced by any
amounts required to be withheld by the Company or the Depositary on account of
taxes in respect of the Deposited Securities represented by such Receipt. If any
distribution consists of a dividend in, or free distribution of, Stock, the
Depositary may in its discretion, with the approval of the Company, distribute
to the holders of Receipts entitled thereto, proportionately as aforesaid,
7
additional Receipts for an aggregate number of Depositary Shares representing
the amount of Stock received as such dividend or free distribution. In lieu of
delivering Receipts for fractional Depositary Shares in any such case, the
Depositary may, in its discretion, sell the amount of Stock, or the amount of
Depositary Shares, represented by the aggregate of such fractions at public or
private sale, at such place or places and upon such terms as it may deem proper
or, if any portion of such amount consists of shares of Stock which are
insufficient in number to constitute a full Unit, sell such portion to the
Company in accordance with the applicable provisions of the Japanese Commercial
Code or any other Japanese law, and distribute the net proceeds of any such
sale, all in the manner and subject to the conditions described in the Deposit
Agreement.
(13) Rights. Whenever the Company shall offer or cause to be offered
to the holders of any Deposited Securities any rights to subscribe for
additional Stock or any rights of any other nature, such rights shall be made
available by the Depositary to the holders of Receipts entitled thereto in such
manner as the Depositary may determine, either by the issue to the holders of
Receipts entitled thereto of warrants representing such rights or by such other
method as may be approved by the Depositary in its discretion; provided,
however, that if at the time of issue or offer of any rights the Depositary
determines that it is not lawful or not feasible to make such rights available
to holders of Receipts by the issue of warrants or otherwise, or if and to the
extent so instructed by holders of Receipts who do not desire to exercise such
rights, the Depositary in its discretion may, if applicable laws permit, sell
such rights at public or private sale, at such place or places and upon such
terms as it may deem proper, and distribute the net proceeds to the holders of
Receipts entitled thereto as in the case of a distribution received in cash.
8
So long as the aggregate number of shares of Stock held by or for
United States residents exceeds 1% of the total number of shares of Stock then
outstanding, if registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for holders of Receipts to be
offered or sold the securities covered by such rights, the Company has agreed
that it will file promptly a registration statement with respect to such rights
and securities and use its best efforts and take all steps available to it to
cause such registration statement to become effective at least 21 days before
such rights shall expire. In no event shall the Depositary offer such rights to
the holders of Receipts unless and until such a registration statement is in
effect, or unless the offering and sale of such securities to the holders of
such Receipts are exempt in the opinion of counsel from registration under the
provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights to be made available to holders of Receipts in any such
jurisdiction, the Company has agreed that it will use its best efforts, to the
extent not unduly burdensome in the judgment of the Company, to take such action
or obtain such authorization, consent or permit sufficiently in advance of the
expiration of the rights to enable holders of Receipts to exercise such rights.
(14) Fixing of Record Date. Whenever any cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be offered, with respect to the Stock or other Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Stock or other Deposited Securities or whenever the Depositary shall
receive notice of the fixing of a record date by the Company either for the
determination of holders of Stock or other Deposited Securities entitled to vote
at any meeting of any such holders or for the determination of holders of Stock
9
or other Deposited Securities entitled to receive a distribution in respect
thereof, the Depositary shall fix a record date for the determination of the
holders of American Depositary Receipts who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting.
(15) Voting Rights. Upon receipt of notice of any meeting of holders
of Stock or other Deposited Securities the Depositary will, as soon as
practicable after fixing a record date for determining the record holders of
American Depositary Receipts entitled to give instructions for the exercise of
voting rights, and after receipt from the Company of notice of such meeting,
mail to such holders a notice which will contain (a) such information as is
contained in such notice of meeting and (b) a statement that the record holders
of Receipts at the close of business on a specified record date will be
entitled, subject to any applicable provisions of law and of the Articles of
Incorporation of the Company, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock or other Deposited
Securities represented by their respective Depositary Shares, and a brief
statement as to the procedure by which such instructions may be given, including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of a record holder of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
will endeavor insofar as practicable to vote or cause to be voted the amount of
Stock or other Deposited Securities represented by such Receipt in accordance
with the instructions set forth in such request. In the absence of instructions
from the record holder of a Receipt, the Depositary has agreed to use its best
efforts to give a discretionary proxy to a person designated by the Company;
10
provided, however, such discretionary proxy shall not be given with respect to
any proposition (a) as to which the Depositary has knowledge of any contest to
the action to be taken at the meeting or (b) for the purpose of authorizing a
merger, consolidation or amalgamation (except an amalgamation between the
Company and one or more of its 100% owned Japanese subsidiaries) or on any other
matter which may affect substantially the rights or privileges of the holders of
such Stock or other Deposited Securities. The Company has agreed to take all
reasonable action which shall at any time be deemed necessary in order to enable
the Depositary to vote or cause to be voted the amount of Stock or other
Deposited Securities represented by every American Depositary Receipt, the
record holder of which shall have furnished a written request setting forth
instructions to the Depositary as aforesaid, in accordance with the instructions
set forth in such request.
(16) Changes Affecting Deposited Securities. Upon any change in par
value or other attribute of Deposited Securities, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation or sale of assets
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of the Company, and in such manner as the
Depositary may deem equitable, treat any securities received by the Depositary
in exchange for or on conversion of or in respect of Deposited Securities as new
Deposited Securities under the Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts as in the case
of a Stock dividend, or may call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
11
(17) Reports, Inspection of Transfer Records. The Depositary will
make available for inspection by holders of Receipts at its corporate trust
office in New York and will furnish to the Securities and Exchange Commission,
Washington, D.C. to the extent required by applicable rules and regulations, any
reports and communications received from the Company which are both (a) received
by the Depositary or its capacity as the holder of the Deposited Securities, (b)
made generally available to the holders of stock by the Company. The Depositary
will also mail to record holders of American Depositary Receipts copies of
reports when furnished by the Company as provided in the Deposit Agreement. The
Depositary will keep records for the transfer of American Depositary Receipts
which at all reasonable times will be open for inspection by the holders of
American Depositary Receipts and the Company, provided that such inspection by a
holder shall not be for the purpose of communicating with holders of Receipts in
the interest of a business or object other than the business of the Company or a
matter related to the Deposit Agreement or the Receipts.
(18) Liability of the Company, the Depositary and the Custodian.
Neither the Depositary, the Custodian nor the Company shall incur any liability
to any holder of this Receipt, if by reason of any provision of any present or
future law or regulation of the United States, Japan or any other country, or of
any other action of any other governmental authority, or in the case of the
Depositary or the Custodian, by reason of any provisions, present or future, of
the Articles of Incorporation or the Share Handling Regulations of the Company,
or by reason of any act of God or war or other circumstances beyond its control,
the Depositary, the Custodian or the Company shall be prevented or forbidden
from or subjected to any civil or criminal penalty on account of doing or
performing any act which the Deposit Agreement provides shall be done or
performed; nor shall the Depositary, the Custodian or the Company incur any
liability to any holder hereof by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act which it is so provided shall or may
be done or performed or by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement.
12
(19) Obligations of the Depositary, the Custodian and the Company.
Neither the Depositary, the Custodian nor the Company assumes any obligation or
shall be subject to any liability under the Deposit Agreement to holders of
Receipts except that each has agreed to use its best judgment and good faith in
the performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required,
and the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary. Neither the Depositary, the Custodian nor the Company shall be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Stock for
deposit, any holder of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information, or for translation of
any notice, report or other document made by a translator believed by it to be
competent. The Depositary, the Custodian or the Company may rely and shall be
protected in acting upon any written notice, request, direction, or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. Neither the Depositary nor the Custodian will be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities or for the manner or effect of any such vote made, as long
as any such action or non-action is in good faith.
13
The Company will indemnify the Depositary, any Registrar and the
Custodian against, and hold each of them harmless from, any liability which may
arise out of acts performed or omitted, in accordance with the provisions of the
Deposit Agreement or this Receipt, (i) by the Company or any of its agents, or
(ii) by the Depositary, such Registrar or any of their agents (including the
Custodian), except for any liability arising out of negligence or bad faith.
The Depositary will indemnify the Company against any liability
which may arise out of acts performed or omitted by the Depositary or its agents
(including the Custodian) due to negligence or bad faith.
The Depositary and the Custodian may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
(22) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign by written notice of its
election so to do delivered to the Company and the Custodian, such resignation
to take effect upon the appointment of a successor depositary and its acceptance
of such appointment. The Depositary may at any time be removed by the Company by
written notice, such removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment. In the case of such
resignation or removal, the Company shall, within 30 days after the delivery of
the notice thereof, appoint a successor depositary. The Depositary may at any
time appoint a substitute Custodian.
(23) Termination of Deposit Agreement. The Depositary will, if at
any time the Company so requests, terminate the Deposit Agreement by mailing
notice of such termination to the record holders of all American Depositary
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement in accordance with the same notice requirements if at any time 30 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment. If any Receipts shall remain
14
outstanding after the date of termination, the Depositary thereafter will
discontinue the transfer of Receipts, except as provided below, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices (other than notice of such termination) or perform any further acts
under the Deposit Agreement, except as provided below and except that the
Depositary will continue to collect dividends and other distributions pertaining
to Deposited Securities, will sell rights as provided in the Deposit Agreement
and will continue to deliver Deposited Securities together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary. Upon termination of the Deposit Agreement, the Depositary shall
deliver Stock in respect of deliverable portions of such Receipts so surrendered
and deliver Receipts in respect of the non-deliverable portion of Receipts so
surrendered pursuant to the Deposit Agreement and, except as provided below,
will continue to effect transfers of Receipts representing non-deliverable
portions in accordance with the Deposit Agreement. At any time after the
expiration of six months from the date of termination, the Depositary may sell
the Deposited Securities then held under the Deposit Agreement at public or
private sale, at such place or places and upon such terms as it deems proper or,
if any portion of such Deposited Securities consists of shares of Stock which
are insufficient in number to constitute a full Unit, sell such portion to the
Company in accordance with the applicable provisions of the Japanese Commercial
15
Code or any other Japanese law or regulation, and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, for the pro rata benefit
of the holders of Receipts which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations under
the Deposit Agreement, except to account for such net proceeds and other cash.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary,
any Registrar and the Custodian with respect to indemnification and the
Depositary's charges and expenses.
(24) [Intentionally Omitted]
(25) Governing Law. This Receipt, and all rights hereunder and
provisions hereof, shall be governed by and construed in accordance with the
laws of the State of New York, United States of America. It is understood that
notwithstanding any present or future provision of the laws of the State of New
York, the rights of holders of Stock and other Deposited Securities, and the
duties and obligations of the Company in respect of such holders, as such, shall
be governed by the laws of Japan.
This American Depositary Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this American Depositary Receipt shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if a
Registrar for the Receipts shall have been appointed, by the manual signature of
a duly authorized officer of such Registrar.
Dated:
------------------
16
Citibank, N.A.,
Depositary
By
--------------------------
Vice President
Countersigned:
---------------------------
Authorized Officer
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - _______________ Custodian ______________________
(Cust) (Minor)
under Uniform Gifts to Minors Act ______________
(State)
Additional abbreviations may also be used though not in the above list.
Please Insert Social Security or Other
Identifying Number of Assignee
--------------------------------------
--------------------------------------
For Value Received, the undersigned hereby sells, assigns and
transfers unto ____________________ the within American Depositary Receipt and
all rights and interests represented thereby, and hereby irrevocably constitutes
and appoints ____________________ attorney, to transfer the same on the books of
the within named Depositary, with full power of substitution in the premises.
Dated:
------------------
Signature
--------------------------
Signature Guaranteed:
NOTE: The signature to any endorsement hereon must correspond with the
name as written upon the face of the Receipt, in every particular,
without alteration or enlargement, or any change whatever.
17