EXECUTED COPY
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KYOCERA CORPORATION (KYOCERA KABUSHIKI KAISHA)
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ISSUED HEREUNDER
________________________________
Amendment No. 1
to
Amended and Restated Deposit Agreement
Dated as of January 5, 1999
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AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT, is made as of
January 5, 1999 (the "Amendment"), by and among KYOCERA CORPORATION (KYOCERA
KABUSHIKI KAISHA), a corporation organized 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 Holders and Beneficial Owners of American Depositary Shares
evidenced by American Depositary Receipts issued under the Deposit Agreement (as
defined below).
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Amended and Restated
Deposit Agreement, dated as of June 29, 1998 (the "Deposit Agreement"), for the
creation of American Depositary Receipts ("ADRs") evidencing American Depositary
Shares ("ADSs") representing shares of Stock (as defined in the Deposit
Agreement) so deposited and for the execution and delivery of such ADRs
evidencing such ADSs;
WHEREAS, the Company has changed the ratio of shares of Stock to ADSs from
(i) two (2) shares of Stock to one (1) ADS to (ii) one (1) share of Stock to one
(1) ADS, and desires to amend the Deposit Agreement to reflect such change; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the form of ADR annexed thereto as Exhibit A for the purposes set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the terms "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Amended and Restated Deposit Agreement, dated as of June
28, 1998, as amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Deposit
Agreement to each American Depositary Share representing two (2) shares of Stock
shall, as of the Effective Date (as defined in Section 4.01), refer to each
American Depositary Share representing one (1) share of Stock.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. Change of Ratio. All references to each American Depositary
Share representing two (2) shares of Stock made in the ADRs issued and
outstanding as of the Effective Date (as defined in Section 4.01) shall refer to
each American Depositary Share representing one (1) share of Stock.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 4.02. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. However, ADRs issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of ADR effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 4.03. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of (i) of the terms of this
Amendment, (ii) of the Effective Date of this Amendment and (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding Receipts.
SECTION 4.04. 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, except for any
liability arising out of negligence or bad faith of the Depositary (or any and
all of its directors, employees and officers).
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.
KYOCERA CORPORATION (KYOCERA KABUSHIKI KAISHA)
By: /s/ Kensuke Itoh
---------------------------------------
Name: Kensuke Itoh
Title: President and Representative Director
CITIBANK, N.A., as Depositary
By: /s/ Emi Mak
---------------------------------------
Name: EMI MAK
Title: VICE PRESIDENT
EXHIBIT A
AMERICAN DEPOSITARY RECEIPT FOR COMMON STOCK
OF
KYOCERA CORPORATION
(Kyocera Kabushiki Kaisha)
(Incorporated under the Laws of Japan)
No. American Depositary Shares
(Each such American Depositary Share
representing one shares of Common Stock par
value of 50 yen per share)
Citibank, N.A., a national banking association incorporated under the laws
of the United States, as Depositary (herein called the "Depositary"), hereby
certifies that ___________________________________is the owner of American
Depositary Shares ("ADSs"), representing Common Stock ("Stock") of Kyocera
Corporation (Kyocera Kabushiki Kaisha), incorporated under the laws of Japan
(the "Company"). Each such ADS represents two shares of Stock at the date
hereof, deposited at the main office of The Sanwa Bank, Limited or The Sumitomo
Bank, Limited in Tokyo (herein called the "Custodian"), as agent of the
Depositary.
1. The Deposit Agreement. This American Depositary Receipt is one of a
continuing issue provided by the Company for the convenience of its shareholders
generally (such issue of American Depositary Receipts being herein called the
"Receipts"), all evidencing rights of similar tenor with respect to Stock
deposited under, and all issued and to be issued upon the terms and conditions
set forth in, the Deposit Agreement, dated as of February 1, 1976, as amended
and restated as of November 28, 1989 as further amended and restated as of June
29, 1998 (as so amended and restated, and as further amended and restated from
time to time the "Deposit Agreement"), among the Company, the Depositary all
holders from time to time of American Depositary Receipts evidencing American
Depositary Shares (the "Holders") issued thereunder and beneficial owners of
ADSs (the "Beneficial Owner") evidenced by such ADRs, each of whom by accepting
a Receipt or ADS, as the case may be, agrees to become a party thereto and
becomes bound by all the terms and provisions thereof. The Deposit Agreement
(copies of which are on file at the Depositary's corporate trust office in New
York City and at the Custodian's main office in Tokyo) set forth the rights of
Holders of the Receipts and Beneficial Owners of ADSs, and the rights and duties
of the Depositary in respect of the Stock deposited and any and all other
securities, property and cash from time to time held thereunder ("Deposited
Securities"). 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, which are incorporated into this Receipt by
reference.
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2. Surrender of Receipts and Withdrawal of Stock. Upon surrender of an
American Depositary Receipt or Receipts at the Depositary's corporate trust
office in New York City currently located at III Wall Street or at such other
offices as the Depositary may designate for the purpose of withdrawal of the
Deposited Securities represented thereby, and upon payment of the fee of the
Depositary for the delivery of Deposited Securities, and subject to the terms
and conditions of the Deposit Agreement, the Holder of such Receipt or Receipts
shall be entitled to delivery, to him or upon his order, of the Stock and any
other Deposited Securities at the time represented by the deliverable portion of
such Receipt or Receipts (as defined in the Deposit Agreement). If such Stock
and other Deposited Securities are held in registered form, delivery of such
Stock and other Deposited Securities may be made by the delivery of certificates
registered in the name of such Holder or as ordered by him, or by the delivery
of certificates which, if required by law, shall be properly endorsed or
accompanied by properly executed instruments of transfer. If such Stock and
other Deposited Securities are not held in registered form, delivery shall be
made by book-entry delivery. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt or Receipts surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank, and the Holder thereof shall execute
and deliver to the Depositary a written order directing the Depositary to cause
the Stock and any other Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the main
office of the Custodian in Tokyo, subject to the terms and conditions of the
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Stock and any other Deposited Securities represented by the
deliverable portion of such Receipt or Receipts, except that the Depositary may
make delivery to such person or persons at the corporate trust office in New
York City of the Depositary of any dividends or distributions with respect to
the Stock and any other Deposited Securities represented by the deliverable
portion of such Receipt or Receipts, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by such
Depositary. Such order shall be given by letter or, at the risk and expense of
the Holder, by cable, telex or facsimile transmission.
At the request and risk and expense of any Holder so surrendering a
Receipt or Receipts, and for the account of such Holder, the Depositary shall
direct the Custodian to forward the certificate or certificates and other proper
documents of or relating to title for the amount of Stock and any other
Deposited Securities represented by the deliverable portion of such Receipt or
Receipts for delivery at the corporate trust office in New York City of the
Depositary. Such direction shall be given in writing and mailed, first class
airmail postage prepaid, or, at the request and risk and expense of such Holder,
by cable, telex or facsimile transmission.
3. Transfers, Split-ups, Combinations. Subject to the terms and conditions
of the Deposit Agreement, the Depositary shall make transfer on its books in New
York City from time to time of American Depositary Receipts upon any surrender
thereof by the Holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument or transfer (including
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signature guarantees in accordance with standard industry practice), and duly
stamped, as may be required by the laws of the State of New York and of the
United States of America. Thereupon the Depositary shall execute and, if the
Depositary's signature is a facsimile signature, the Registrar shall manually
countersign a new American Depositary Receipt or Receipts and deliver the same
to or upon the order of the person entitled thereto representing the same
aggregate number of shares of Stock as those represented by the American
Depositary Receipt or Receipts so surrendered.
Upon surrender of an American Depositary Receipt or Receipts at the
Depositary's corporate trust office in New York City or at such other offices as
it may designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of the Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
authorized denominations for the number of Depositary Shares requested,
representing the same aggregate number of Depositary Shares represented by the
Receipt or Receipts so surrendered.
4. Conditions to Signing and Delivery, Registration of Transfer, etc. of
Receipts. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, withdrawal, surrender or exchange of any
Receipt, or the payment of dividends or other distributions thereupon, 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
registration fee with respect thereto (including any such tax or charge and fee
with respect to Stock being deposited or withdrawn) and payment of any fee to
it, 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
it may establish pursuant to the Deposit Agreement. Any person presenting Stock
for deposit or any Holder or Beneficial Owner may be required 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 Law of Japan or any other
successor legislation thereto or any other applicable law, or other information,
and to execute such certificates 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 of rights or the
proceeds thereof or the delivery of any such Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
5. Suspension of Delivery, Transfer, etc. The issuance of ADSs against
deposits of shares of Stock generally or against deposits of particular shares
of Stock may be suspended, or the issuance of ADSs against the deposit of
particular shares of Stock may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary, a Registrar or the registrar of
the Stock are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the Receipts or shares of Stock
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or for any other reason, subject, in all
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cases, to the limitations set forth in the Deposit Agreement and in Paragraph 24
hereof. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement any shares of Stock which are
required to be registered under the Securities Act of 1933, unless a
registration statement under such Act is in effect as to such shares of Stock.
6. Liability of Holder for Taxes. Any tax or other governmental charge
payable by or on behalf of the Depositary with respect to this Receipt, ADSs
evidenced by this Receipt or with respect to any Deposited Securities
represented hereby shall be payable by the Holder hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt and the ADSs
evidenced hereby, or any withdrawal of Deposited Securities represented by such
ADSs, until such payment is made, and may withhold dividends or other
distributions, or may sell (after attempting by reasonable means to notify the
Holder prior to such sale) any part or all of the Deposited Securities
represented hereby, and may apply such dividends or distributions or the
proceeds of any such sale toward such tax or charge, the Holder hereof remaining
liable for any deficiency.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained by the Company, Depositary or the Custodian for such Holder
and/or Beneficial Owner.
7. Warranties by Depositor. Each person depositing shares of Stock under
the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such shares of Stock and the certificates therefor are duly authorized, validly
issued, fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such shares of Stock
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the shares of Stock presented for deposit are
free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, and are not, and the American Depositary Shares issuable upon
such deposit will not be, Restricted Securities and (v) the shares of Stock
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
shares of Stock, the issuance and cancellation of American Depositary Shares in
respect thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
shares of Stock, to take any and all actions necessary to correct the
consequences thereof.
8. Amendment of Deposit Agreement. This Receipt 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 imposing any fees or charges (other than
fees and charges provided in the Deposit Agreement) or otherwise prejudicing any
substantial existing right of the Holder hereof shall, however, not become
effective as to this Receipt until the expiration of three months after notice
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of such amendment shall have been given to the Holder hereof. The Holder and
Beneficial Owner this Receipt and of the ADSs evidenced hereby, as the case may
be, at the time any such amendment so becomes effective shall be deemed, by
continuing to hold this Receipt and the ADSs evidenced hereby, as the case may
be, to consent and agree to such amendment and to be bound by the Deposit
Agreement and this Receipt as amended by such amendment. In no event shall any
amendment impair the right of the Holder hereof to surrender this Receipt and
receive therefor the Deposited Securities represented by ADSs evidenced hereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of this Receipt
or of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement this Receipt and the Deposit Agreement at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to this Receipt and to the Deposit Agreement in such circumstances
may become effective before a notice of such amendment or supplement is given to
the Holder hereof or within any other period of time as required for compliance
with such laws, rules or regulations.
9. Charges of Depositary. The Depositary shall charge fees for receiving
deposits and issuing Receipts, for delivering deposited Stock against surrender
of Receipts, for transfer of Receipts, for splits and combination of Receipts,
for sales or exercise of rights or for other services performed upon the terms
set forth in the Deposit Agreement. The Depositary and the Company reserve the
right to modify, reduce or increase any fees or charges for services performed.
The Depositary shall charge any party to whom Receipts are issued (including,
without limitation, deposit or issuance pursuant to a Stock Split declared by
the Company or an exchange of Stock or Deposited Securities, or a distribution
of Receipts pursuant to Paragraph 15 hereof), or who surrenders Receipts a fee
of U.S. $5.00 or less per 100 American Depositary Shares (or portion thereof)
for the issuance or surrender, respectively, of a Receipt. In addition the
Depositary shall charge to the Holders a fee of U.S. $2.00 or less per 100
American Depositary Shares held (or portion thereof) for any cash distribution
(other than a distribution made pursuant to a cash dividend) made pursuant to
the Deposit Agreement, and $5.00 or less per 100 American Depositary Shares (or
portion thereof) in case of a distribution of American Depositary Shares upon
the exercise of rights, made pursuant to the Deposit Agreement. The Depositary
will provide, without charge, a copy of its latest fee schedule to anyone upon
request. In addition, Holder, Beneficial Owners, and persons depositing Stock
will be requested to pay taxes and other governmental charges, registration
fees, cable, telex and facsimile transmission and delivery expenses, and
customary and other expenses incurred by the Depositary in connection with its
obligations and duties under the Deposit Agreement. The Company will pay the
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 of Stock,
and such cable, radio and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Stock or Holders of
Receipts.
10. 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 thereby),
when properly endorsed or accompanied by a properly executed instrument of
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transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of the State of New York; provided,
however, that until this Receipt shall be transferred on the books of the
Depositary, the Depositary may, notwithstanding any notice to the contrary,
treat the Holder hereof at such time as the absolute owner hereof (or
representative of the Beneficial Owner of the American Depositary Shares
evidenced hereby) 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.
Dated:
Countersigned CITIBANK, N.A.
as Depositary
By: ____________________________ By: ____________________________
Authorized Officer Vice President
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(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
11. Dividends and Distributions. Whenever the Depositary receives any cash
dividend or other cash distribution on the Deposited Securities or the net
proceeds from the sale of securities, property or rights, the Depositary shall,
if at the time of receipt thereof any non-dollar currency so received or held
can in its judgment be converted on a reasonable basis into dollars available to
the Depositary and subject to the provisions of the Deposit Agreement, convert
such dividend or distribution into United States dollars and make the resulting
amount available for distribution to Holders entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation; provided,
however, that in the event that any of the deposited Stock is not entitled, by
reason of its date of issuance, or otherwise, to receive the full amount of such
cash distribution, the Depositary shall make an appropriate adjustment in the
amount distributed to the Holders of American Depositary Receipts issued in
respect of such Stock, and provided further that the amount distributed will be
reduced by any amounts required to be withheld by the Company or the Depositary
on account of taxes. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder of an American
Depositary Receipt a fraction of one cent and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. Any amounts, proceeds or
sums to be distributed shall in all cases be subject to reduction in the amount
of the appropriate fees and charges as described in the Deposit Agreement.
Payments in dollars in respect of any receipt will be made, subject to
applicable laws and regulations, by check drawn on a bank in New York City.
Whenever the Depositary shall receive any distribution other than cash or
rights or in Stock Splits upon the Deposited Securities, the Depositary shall
(subject to the terms hereof and of the Deposit Agreement) cause such amount of
the securities or property received by it to be distributed to the Holders of
American Depositary Receipts on the record date fixed pursuant to Paragraph 13
hereof in proportion to the number of Depositary Shares held by them in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among the Holders of American Depositary Receipts
entitled thereto, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes or that such
distribution requires registration under Securities Act of 1933) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
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as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the Holders of Receipts entitled thereto as in
the case of a distribution received in cash. When the Company decides to
effectuate a Stock Split, the Depositary may in its discretion upon prior
consultation with and approval of the Company and subject to Paragraph 9 hereof,
distribute to the Holders of Receipts entitled thereto on the record date fixed
pursuant to Paragraph 13 hereof, in proportion to the number of Depositary
Shares held by them additional Receipts representing the amount of Stock
received as a result of such Stock Split. 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 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 other applicable 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.
The Depositary shall not make available to the Holders of American
Depositary Receipts any such Stock it received as a result of the Stock Split
(a) unless such distribution is exempt from registration under the Securities
Act of 1933, or, (b) unless and until a registration statement is in effect
under the Securities Act of 1933 for such distribution.
12. Rights. Whenever the Company shall offer or cause to be offered to the
holders of any Deposited Securities in whose names such securities are recorded
on the books of the Company any rights to subscribe for or to purchase
additional Stock or any rights of any other nature, such rights shall be made
available by the Depositary to the Holders of Receipts in such manner as the
Depositary may determine, subject to the requirements of any securities exchange
on which the American Depositary Receipts are listed, either by the issue to the
Holders of American Depositary 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 that such Holders do not desire to exercise such rights, the Depositary
may in its discretion, 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.
So long as the aggregate number of shares of Stock held by or for United
States residents (including any such shares of Stock represented by Receipts
held by or for United States residents) or issuable to United States residents
on conversion of securities convertible into Stock of the Company 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 the Company to offer such rights to Holders of Receipts and sell
the securities represented by such rights, the Company has agreed in the Deposit
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Agreement that it will file promptly a registration statement pursuant to such
Act with respect to such rights and securities and use its best efforts and take
all steps available to it to cause such registration statement to become
effective at least 21 days before such rights shall expire. In no event shall
the Depositary make available to the Holders of Receipts any right to subscribe
for or to purchase any securities 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 from registration under the provisions of such Act.
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or feasible to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with sale, or exercise of rights, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
13. Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, or whenever a Stock Split shall be
announced by the Company, with respect to the Deposited Securities, or whenever
the Depositary shall receive notice of any meeting of holders of Stock or other
Deposited Securities, or whenever there is a change in the number of shares
represented by each American Depositary Share, or whenever the Depositary finds
it necessary or convenient, the Depositary shall fix a record date for the
determination of the Holders of Receipts who shall be entitled, subject to the
provisions of the Deposit Agreement, 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. Subject to the terms hereof and
of the Deposit Agreement, the Holders of Receipts on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof or to give instructions for the exercise of such voting rights in
proportion to the number of American Depositary Shares held by them,
respectively.
14. Voting Rights. Upon receipt of notice of any meeting of holders of
Stock or other Deposited Securities, the Depositary shall, as soon as
practicable thereafter, mail to the Holder hereof a notice which shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the Holder hereof at the close of business on a specified record
date will be entitled, subject to any applicable provisions of law, of the
Articles of Incorporation of the Company and of the Deposit Agreement, 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. Upon the written instruction of the Holder
hereof on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Stock or other Deposited
Securities represented by this Receipt in accordance with such instructions. To
the extent the aggregate of the American Depositary Shares voted for and against
a proposal do not constitute integral multiples of a Unit, the remainders in
excess of the highest integral multiple of a Unit will be disregarded. In the
absence of instructions from the Holder hereof, such Holder shall be deemed, and
A-9
the Depositary shall deem such Holder, to have instructed the Depositary to use
its best efforts to give a discretionary proxy to a person designated by the
Company; provided, however, that such discretionary proxy shall not be given if
the Company does not request such proxy to be given, and provided, further, that
no such discretionary proxy shall be given with respect to (i) any proposition
(a) as to which the Depositary has knowledge of any shareholder 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 (ii) any
other matter which may substantially affect the rights or privileges of holders
of such Stock or other Deposited Securities. The Company has agreed in the
Deposit Agreement to take all reasonable action which shall at any time be
deemed necessary by the Depositary 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 Holder of which shall have furnished
written instructions to the Depositary as aforesaid, in accordance with such
instructions. Prior to requesting the delivery of a discretionary proxy upon the
terms set forth herein, the Company shall deliver to the Depositary an opinion
of the Company's counsel and a representation letter, in each case upon the
terms contemplated in the Deposit Agreement.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
15. Changes Affecting Deposited Securities. Upon any change in nominal or
par value, consolidation, exchange, reclassification, conversion or any other
reclassification 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, in such manner as the Depositary may deem equitable, and with the
approval of the Company, treat any securities which shall be received by the
Depositary in exchange for or in conversion of or in respect of Deposited
Securities as new Deposited Securities under the terms hereof and of the Deposit
Agreement, and Receipts then outstanding shall thenceforth evidence American
Depositary Shares representing the right to receive 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, and subject to receipt of an
opinion from the Company's U.S. counsel satisfactory to the Depositary that such
resulting distributions are not in violation of any applicable laws or
regulations, execute and deliver additional Receipts or may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
Should a registration statement on Form F -6 be required to be filed in
regard to such additional Receipts, no distribution of additional Receipts shall
be made unless and until a registration statement on Form F-6 and applicable
thereto is filed and becomes effective.
16. Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders of Receipts at its corporate trust office in
New York any reports and communications including any proxy soliciting
A-10
materials, received from the Company which are both (a) received by the
Depositary, the Custodian, or the nominee of either of them as the holder of the
Deposited Securities, and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send to Holders of
American Depositary Receipts copies of such reports to the extent provided in
the Deposit Agreement when furnished by the Company for such purpose. The
Depositary shall keep books in New York City for the transfer of American
Depositary Receipts, which at all reasonable times shall 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 American Depositary Receipt in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or of the American Depositary Receipts.
The Depositary may close the books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder and under the Deposit Agreement.
17. Liability of the Company, the Depositary and the Custodian. Neither
the Depositary nor the Custodian nor the Company shall incur any liability to
any Holder of any Receipts or Beneficial Owner of ADSs evidenced thereby, if by
reason of any provision of any present or future law of Japan or any other
country, or of any other governmental authority or rules of any exchange upon
which the Stock, ADRs or ADSs are or shall ever be listed, or in the case of the
Depositary or the Custodian, by reason of any provision, present or future, of
the Articles of Incorporation of the Company, or by reason of any act of God or
war or other circumstances beyond its control (including, but not limited to,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), the
Depositary or 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 or thing which by the terms of the Deposit Agreement it is provided
shall be done or performed; nor shall the Depositary, the Custodian or the
Company incur any liability to any Holder or Beneficial Owner of ADRs or ADSs,
as the case may be, by reason of any nonperformance or delay, caused as
aforesaid, in performance of any act or thing which by the terms of the Deposit
Agreement it is 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. Neither the Depositary nor the Company shall incur any liability (i)
by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement or in the Articles of Incorporation of the Company
or provisions of law governing Deposited Securities, (ii) for any failure by a
Holder or Beneficial Owner to benefit from any distribution, offering, right or
other benefit which is made available to holders of Deposited Securities but is
not, under the terms of the Deposit Agreement, made available to Holders or
Beneficial Owners of American Depositary Receipts or American Depositary Shares,
as the case may be, or (iii) for any consequential or punitive damages for any
breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may each and all rely and shall
be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
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No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
18. Obligations of the Depositary, the Custodian and the Company. Neither
the Depositary nor the Custodian nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to Holders of American
Depositary Receipts or Beneficial Owners of American Depositary Shares, as the
case may be, except that each agrees to use its best judgment and good faith in
the performance of obligations and duties specifically set forth in the Deposit
Agreement.
Neither the Depositary nor the Custodian 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. Neither the Depositary 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 an American Depositary Receipt or Beneficial Owner of American Depositary
Shares, as the case may be, or any other person believed by it in good faith to
be competent to give such advice or information or for any translation of any
notice, report or other document made by translator believed by it to be
competent. Neither the Depositary nor the Custodian shall 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 either with or without request,
or for not exercising any right to vote, as long as any such action or nonaction
is in good faith.
The Depositary will indemnify the Company against any liability which may
arise out of acts performed or omitted by the Depositary negligently or in bad
faith.
19. Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign as Depositary hereunder 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 as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal delivered to the Depositary, such removal becoming effective
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 30 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to, the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
A-12
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding American Depositary Receipts. Any successor
depositary shall promptly mail notice of its appointment to the Holders of
American Depositary Receipts. Any corporation into or with which the Depositary
may be merged or consolidated shall be the successor of such Depositary without
the execution or filing of any document or any further act.
20. Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of Section 5.04 of the Deposit Agreement, the Depositary,
the Custodian, their Affiliates and their agents, on their own behalf, may own
and deal in any class of securities of the Company and its Affiliates and in
ADSs. In its capacity as Depositary, the Depositary shall not lend shares of
Stock or Receipts; provided, however, that the Depositary may (i) issue Receipts
prior to the receipt of shares of Stock pursuant to Section 2.03 of the Deposit
Agreement, (ii) deliver shares of Stock prior to the receipt and cancellation of
Receipts pursuant to Section 2.06 of the Deposit Agreement, including Receipts
which were issued under (i) above but for which shares of Stock may not have
been received (each such transaction a "Pre-Release Transaction"). The
Depositary may receive Receipts in lieu of shares of Stock under (i) above and
receive shares of Stock in lieu of Receipts under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom Receipts or
shares of Stock are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the shares of Stock
or Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such shares of
Stock or Receipts in its records and to hold such shares of Stock or Receipts in
trust for the Depositary until such shares of Stock or Receipts are delivered to
the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such shares of Stock or
Receipts, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of Receipts and shares of Stock involved in such Pre-Release
Transactions at anyone time to thirty percent (30%) of the Receipts outstanding
(without giving effect to Receipts outstanding under (i) above), 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 also set
limits with respect to the number of Receipts and shares of Stock involved in
Pre-Release Transactions with anyone person on a case by case basis as it deems
appropriate.
A-13
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
21. Termination of Deposit Agreement. The Depositary shall, if the Company
so requests, terminate the Deposit Agreement by mailing notice of such
termination, first class airmail postage prepaid, to the Holders of American
Depositary Receipts then outstanding as provided in the Deposit Agreement at
least 30 days prior to the date fixed in such notices for such termination.
The Depositary may likewise terminate the Deposit Agreement in accordance
with the notice requirements of the preceding paragraph 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 as provided in the Deposit
Agreement.
If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the transfer of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall 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 shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement and shall continue to deliver Deposited Securities, 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 nondeliverable
portions of Receipts so surrendered pursuant to the terms of the Deposit
Agreement and, except as provided below, shall continue to effect transfers of
Receipts representing nondeliverable 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
hereunder 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 Code or such other Japanese law, and may thereafter hold the
net proceeds of any such sale, together with any other cash then held by it
hereunder, 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 under the Deposit Agreement (except as specifically contemplated
therein).
22. Available Information. The Company is subject to the periodic
reporting requirements of the United States Securities Exchange Act of 1934, as
amended, and accordingly files certain information with the United States
Securities and Exchange Commission (the "Commission"). These reports and
A-14
documents can be inspected and copied at the public reference facilities
maintained by the Commission currently located at judiciary Plaza, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and at the Commission's New York City
office currently located at Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
23. Governing Law. This Receipt shall be interpreted in accordance with,
and all rights hereunder and provisions hereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Notwithstanding any present or future provision of the laws of the
State of New York, the rights of holders of Stock, and the duties and
obligations of the Company, in respect of such holders of Stock shall be
governed by the laws of Japan. Notwithstanding the foregoing, the Company has
under the terms hereof and of the Receipts, agreed to assume certain obligations
vis-a-vis the Holders of ADRs and the Beneficial Owners of ADSs, which
obligations are governed by the laws of the State of New York.
The provisions of this Paragraph 23 shall survive any termination of the
Deposit Agreement, in whole or in part.
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.
24. Compliance with US. Securities Laws. Notwithstanding anything in the
Deposit Agreement or this Receipt to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction LA(I) of the General Instructions to
Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
A-15
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________ whose taxpayer
identification number is _____________________________________________ and whose
address including postal Zip code is ___________________________________ , the
within Receipt and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________________ attorney-in-fact to
transfer said Receipt on the books of the Depositary with full power of
substitution in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
SIGNATURE GUARANTEED
___________________________
A-16
LEGEND TO BE INCLUDED ON FACE OF AMERICAN
DEPOSITARY RECEIPTS
SUBSCRIPTION RIGHTS: Offerings of rights to subscribe to additional Common
Stock have been made under Japanese practice in substantial amounts, with a
subscription price substantially below the current market price of the security.
The Company has agreed in the Deposit Agreement that, except as stated in
paragraph 12 of this Receipt, it will file a registration statement registering
such rights offerings under the United States Securities Act of 1933, as
amended, for the purpose of making possible the distribution of rights by the
Depositary to the Holders of Receipts in the United States and the exercise of
the rights by such Holders. Should such distribution not be possible, the
Depositary intends to endeavor to dispose of the rights for the benefit of
Holders of Receipts as provided in the Deposit Agreement. Any disposal of rights
may substantially dilute the equity of Holders of Receipts.
WITHDRAWAL OF UNDERLYING STOCK: THE COMMON STOCK UNDERLYING
THIS AMERICAN DEPOSITARY RECEIPT CAN ONLY BE WITHDRAWN FROM
THE DEPOSITARY IN A UNIT OF 100 SHARES OR AN INTEGRAL MULTIPLE
THEREOF.
A-17
EXHIBIT B:
FEE SCHEDULE
--------------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon Up to $5.00 per 100 ADSs (or fraction Party for whom deposits are made or
deposit of Stock (excluding thereof) issued party receiving ADSs.
issuances contemplated by
paragraphs (3)(b) and (5)
below).
--------------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or fraction Party surrendering ADSs or making
Securities, property and thereof) surrendered. withdrawal.
cash against surrender of
ADSs.
--------------------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee. N/A
dividend or (b) ADSs
pursuant to Stock Splits (as
defined in the Deposit
Agreement).
--------------------------------------------------------------------------------------------------------------------------
(4) Distribution of cash Up to $2.00 per 100 ADSs held. Party to whom distribution is made.
proceeds (i.e. upon sale of
rights and other
entitlements).
--------------------------------------------------------------------------------------------------------------------------
(5) Distribution of ADSs Up to $5.00 per 100 ADSs issued. Party to whom distribution is made.
pursuant to exercise of
rights.
--------------------------------------------------------------------------------------------------------------------------
II. Charges Holders and Beneficial Owners shall be responsible for the
following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of shares of Stock or other Deposited Securities on the share
register and applicable to transfers of shares of Stock or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
B-1
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing shares of Stock or Holders and Beneficial Owners of
ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to shares of Stock, Deposited Securities, ADSs and
ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities
B-2