ALLIED TELESIS HOLDINGS K.K. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of [DATE] , 2006
TABLE
OF CONTENTS
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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1
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(d)
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Custodian
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1
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(e)
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Deliver,
execute, issue et al.
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1
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(f)
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Delivery
Order
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1
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(g)
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Deposited
Securities
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1
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(h)
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Direct
Registration System
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1
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(i)
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Holder
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2
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(j)
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Securities
Act of 1933
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2
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(k)
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Securities
Exchange Act of 1934
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2
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(l)
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Shares
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2
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(m)
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Transfer
Office
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2
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(n)
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(o)
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Withdrawal
Order
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2
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Section
2.
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ADRs
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2
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Section
3.
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Deposit
of Shares
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3
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Section
4.
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Issue
of ADRs
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3
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Section
5.
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Distributions
on Deposited Securities
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3
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Section
6.
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Withdrawal
of Deposited Securities
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4
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Section
7.
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Substitution
of ADRs
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4
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Section
8.
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Cancellation
and Destruction of ADRs
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4
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Section
9.
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The
Custodian
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4
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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4
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Section
11.
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Lists
of Holders.
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5
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Section
12.
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Depositary's
Agents
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5
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Section
13.
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Successor
Depositary
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5
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Section
14.
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Reports
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5
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Section
15.
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Additional
Shares
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5
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Section
16.
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Indemnification
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5
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Section
17.
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Notices
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6
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Section
18.
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Miscellaneous
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7
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Section
19.
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Consent
to Jurisdiction
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7
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TESTIMONIUM
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9
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SIGNATURES
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9
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Page
EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
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Issuance
of ADRs
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A-2
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(2)
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Withdrawal
of Deposited Securities
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A-2
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(3)
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Transfers
of ADRs
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A-2
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(4)
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Certain
Limitations
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A-3
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(5)
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Taxes
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A-4
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(6)
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Disclosure
of Interests
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A-4
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(7)
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Charges
of Depositary
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A-4
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(8)
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Available
Information
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A-5
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(9)
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Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM
OF REVERSE OF ADR
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A-7
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(10)
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Distributions
on Deposited Securities
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A-7
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(11)
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Record
Dates
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A-8
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(12)
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Voting
of Deposited Securities
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A-8
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(13)
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Changes
Affecting Deposited Securities
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A-8
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(14)
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Exoneration
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A-8
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(15)
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Resignation
and Removal of Depositary; the Custodian
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A-9
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(16)
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Amendment
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A-9
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(17)
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Termination
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A-10
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(18)
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Appointment
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A-10
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(19)
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Change
in ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ dated as of [DATE] , 2006 (the "Deposit Agreement") among ALLIED
TELESIS HOLDINGS K.K. and its successors (the "Company"), JPMORGAN CHASE
BANK,
N.A., as depositary hereunder (the "Depositary"), and all holders from time
to
time of American Depositary Receipts issued hereunder ("ADRs") evidencing
American Depositary Shares ("ADSs") representing deposited Shares (defined
below). The Company hereby appoints the Depositary as depositary for the
Deposited Securities and hereby authorizes and directs the Depositary to
act in
accordance with the terms set forth in this Deposit Agreement. All capitalized
terms used herein have the meanings ascribed to them in Section 1 or elsewhere
in this Deposit Agreement. The parties hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder. ADRs may
be
either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the
form
of Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of
ADR
shall be binding upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents the right to receive five Shares and a pro
rata
share in any other Deposited Securities.
(d) "Custodian"
means
the agent or agents of the Depositary (singly or collectively, as the context
requires) and any additional or substitute Custodian appointed pursuant to
Section 9.
(e)
The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry
or
entries or an electronic transfer or transfers in the Direct Registration
System, and, when used with respect to ADRs in physical certificated
form, shall
refer to the physical delivery, execution, issuance, registration, surrender,
transfer or cancellation of certificates representing the
ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under this Deposit Agreement
and any and all other Shares, securities, property and cash at such time
held by
the Depositary or the Custodian in respect or in lieu of such deposited Shares
and other Shares, securities, property and cash.
(h)
"Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record
the
ownership of ADRs without the issuance of a certificate, which ownership
shall
be evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto. For purposes hereof, the Direct Registration System
shall
include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary.
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time to time
amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act of 1934, as from time to time
amended.
(l) "Shares"
mean
the common shares of the Company, and shall include the rights to receive
Shares
specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n)
"Unit"
means
100 Shares or such other number of Shares as the Articles of Incorporation
of the Company may provide as a "Unit of Shares" for the purpose of the
Japanese
Commercial Code, as such Articles of Incorporation may be amended from
time to
time.
(o) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at
the discretion of the Depositary in accordance with its customary practices
in
its American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder,
any
applicable law, regulation or usage or to indicate any special limitations
or
restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the form of ADR
to the
contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
2
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the form of ADR, regardless of whether their ADRs are Direct Registration
ADRs or certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or the Custodian
may require the following in form satisfactory to it: (a) a written order
directing the Depositary to issue to, or upon the written order of, the person
or persons designated in such order a Direct Registration ADR or ADRs evidencing
the number of ADSs representing such deposited Shares (a "Delivery Order");
(b)
proper endorsements or duly executed instruments of transfer in respect of
such
deposited Shares; (c) instruments assigning to the Custodian or its nominee
any
distribution on or in respect of such deposited Shares or indemnity therefor;
and (d) proxies entitling the Custodian to vote such deposited Shares. As
soon
as practicable after the Custodian receives Deposited Securities pursuant
to any
such deposit or pursuant to paragraph (10) or (13) of the form of ADR, the
Custodian shall present such Deposited Securities for registration of transfer
into the name of the Custodian or its nominee, to the extent such registration
is practicable, at the cost and expense of the person making such deposit
(or
for whose benefit such deposit is made) and shall obtain evidence satisfactory
to it of such registration. Deposited Securities shall be held by the Custodian
for the account and to the order of the Depositary at such place or places
and
in such manner as the Depositary shall determine. Deposited Securities may
be
delivered by the Custodian to any person only under the circumstances expressly
contemplated in this Deposit Agreement. To the extent that the provisions
of or
governing the Shares make delivery of certificates therefor impracticable,
Shares may be deposited hereunder by such delivery thereof as the Depositary
or
the Custodian may reasonably accept, including, without limitation, by causing
them to be credited to an account maintained by the Custodian for such purpose
with the Company or an accredited intermediary, such as a bank, acting as
a
registrar for the Shares, together with delivery of the documents, payments
and
Delivery Order referred to herein to the Custodian or the Depositary.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary of
such
deposit and of the information contained in any related Delivery Order by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall properly issue at the Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested and evidencing the aggregate ADSs to which such person
is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its discretion that any distribution
pursuant to paragraph (10) of the form of ADR is not practicable with respect
to
any Holder, the Depositary may make such distribution as it so deems
practicable, including the distribution of foreign currency, securities or
property (or appropriate documents evidencing the right to receive foreign
currency, securities or property) or the retention thereof as Deposited
Securities with respect to such Holder's ADRs (without liability for interest
thereon or the investment thereof).
3
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the Depositary may
require
proper endorsement in blank of such ADR (or duly executed instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited Securities represented by the ADSs evidenced
by such ADR to be withdrawn and delivered to, or upon the written order of,
any
person designated in such order (a "Withdrawal Order"). Directions from the
Depositary to the Custodian to deliver Deposited Securities shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder, by cable, telex or facsimile transmission. Delivery
of
Deposited Securities may be made by the delivery of certificates (which,
if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal
Order)
or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account
designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration ADR in exchange
and substitution for any mutilated certificated ADR upon cancellation thereof
or
in lieu of and in substitution for such destroyed, lost or stolen certificated
ADR, unless the Depositary has notice that such ADR has been acquired by
a bona
fide purchaser, upon the Holder thereof filing with the Depositary a request
for
such execution and delivery and a sufficient indemnity bond and satisfying
any
other reasonable requirements imposed by the Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy ADRs in certificated form so cancelled
in
accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from
time
to time appoint one or more agents to act for it as Custodian hereunder.
Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give
written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound by the applicable terms hereof. Any Custodian may resign from
its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon the instruction of the Depositary, all Deposited Securities
held
by it to a Custodian continuing to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars to register ADRs and
transfers, combinations and split-ups of ADRs and to countersign ADRs in
accordance with the terms of any such appointment and (ii) co-transfer agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer offices in addition to the Transfer Office on behalf
of the
Depositary. Each co-registrar or co-transfer agent (other than JPMorgan Chase
Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
of
this Deposit Agreement.
4
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and
its agents and the ADR Register, take copies thereof and require the Depositary
and its agents to supply copies of such portions of such records as the Company
may request. The Depositary or its agent shall furnish to the Company promptly
upon the written request of the Company, a list of the names, addresses and
holdings of ADSs by all Holders as of a date within seven days of the
Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement through
any
agent appointed by it, provided that the Depositary shall notify the Company
of
such appointment and shall remain responsible for the performance of such
obligations as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company. The Depositary may at any
time
be removed by the Company by written notice of such removal. Notwithstanding
anything to the contrary contained herein, in case at any time the Depositary
acting hereunder shall resign or be removed, it shall continue to act as
Depositary for the purpose of terminating this Deposit Agreement pursuant
to
paragraph (17) of the form of ADR. Any bank or trust company into or with
which
the Depositary may be merged or consolidated, or to which the Depositary
shall
transfer substantially all its American depositary receipt business, shall
be
the successor of the Depositary without the execution or filing of any document
or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or any securities regulatory authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy thereof in English or with an English translation or summary.
The Company has delivered to the Depositary, the Custodian and any Transfer
Office, a copy of all provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company
and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary and its agents
may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with written instructions of the Company not to accept for deposit hereunder
any
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order
to
facilitate the Company's compliance with securities laws in the United
States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its
agents against any loss, liability or expense (including reasonable fees
and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs,
as the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary, or (ii) by the Company
or any
of its directors, employees, agents or affiliates.
5
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered
by
the Company expressly for use in any of the foregoing documents or (ii) if
such
information is provided, the failure to state a material fact necessary to
make
the information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the other for any indirect, special, punitive or consequential
damages (collectively "Special Damages") except (i) to the extent such Special
Damages arise from the gross negligence or willful misconduct of the party
from
whom indemnification is sought or (ii) to the extent Special Damages arise
from
or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such
Special
Damages arise out of the gross negligence or willful misconduct of the party
seeking indemnification hereunder
The
obligations set forth in this Section 16 shall survive the termination of
this
Deposit Agreement and the succession or substitution of any indemnified
person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by
such
Holder. Notice to the Depositary or the Company shall be deemed given when
first
received by it at the address or facsimile transmission number set forth
in (a)
or (b), respectively, or at such other address or facsimile transmission
number
as either may specify to the other by written notice:
|
(a)
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JPMorgan
Chase Bank, N.A.
|
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Four
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
ADR Administration
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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6
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(b)
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▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇
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Attention:
Yo NakaharaFax: ▇▇-▇▇▇▇-▇▇▇▇
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18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall not give
any
legal or equitable right, remedy or claim whatsoever to any other person.
The
Holders and owners of ADRs from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the provisions hereof. If any such
provision is invalid, illegal or unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding against
the
Company brought by the Depositary or any Holder, arising out of or based
upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in New York, New York, and irrevocably
waives any objection which it may now or hereafter have to the laying of
venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
also irrevocably agrees that any legal suit, action or proceeding against
the
Depositary brought by the Company, arising out of or based upon this Deposit
Agreement or the transactions contemplated hereby, may only be instituted
in a
state or federal court in New York, New York. The Company has appointed Allied
Telesis Inc.19800 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. #▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as its authorized
agent (the "Authorized Agent") upon which process may be served in any such
action arising out of or based on this Deposit Agreement or the transactions
contemplated hereby which may be instituted in any state or federal court
in New
York, New York by the Depositary or any Holder, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
The
Company represents and warrants that the Authorized Agent has agreed to act
as
said agent for service of process, and the Company agrees to take any and
all
action, including the filing of any and all documents and instruments, that
may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company. If, for any reason, the Authorized Agent named above or
its
successor shall no longer serve as agent of the Company to receive service
of
process in New York, the Company shall promptly appoint a successor acceptable
to the Depositary, so as to serve and will promptly advise the Depositary
thereof. In the event the Company fails to continue such designation and
appointment in full force and effect, the Company hereby waives personal
service
of process upon it and consents that any such service of process may be made
by
certified or registered mail, return receipt requested, directed to the Company
at its address last specified for notices hereunder, and service so made
shall
be deemed completed five (5) days after the same shall have been so mailed.
Notwithstanding the foregoing, any action based on this Agreement may be
instituted by the Depositary or any Holder in any competent court in
Japan.
7
To
the
extent that the Company or any of its properties, assets or revenues may
have or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution
or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect
to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim,
any
such immunity and consents to such relief and enforcement.
8
IN
WITNESS WHEREOF, ALLIED TELESIS HOLDINGS K.K. and JPMORGAN CHASE BANK, N.A.
have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of ADRs shall become parties hereto upon acceptance
by
them of ADRs issued in accordance with the terms hereof.
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
Vice President
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9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
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_____
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No.
of ADSs:
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Number
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____________
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Each
ADS represents
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Five
Shares
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CUSIP:
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THE
RIGHT OF HOLDERS OF ADRS TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED
AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW. PURSUANT TO THE COMMERCIAL CODE
OF
JAPAN AND TO THE COMPANY’S ARTICLES OF INCORPORATION, THE RELEASE OF THE SHARES
UNDERLYING THE ADSs REPRESENTED BY THIS ADR MAY BE LIMITED TO A UNIT OF 100
SUCH
SHARES (OR SUCH OTHER NUMBER OF SHARES AS THE ARTICLES OF INCORPORATION MAY
FROM
TIME TO TIME DESIGNATE AS A “UNIT OF SHARES”) OR INTEGRAL MULTIPLES
THEREOF.
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
(Incorporated
under the laws of Japan)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws
of the
United States of America, as depositary hereunder (the "Depositary"), hereby
certifies that
is
the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing
five
common shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of Allied Telesis Holdings K.K., a corporation
organized under the laws of Japan (the "Company"), deposited under the Deposit
Agreement dated as of [DATE] , 2006 (as amended from time to time, the "Deposit
Agreement") among the Company, the Depositary and all Holders from time to
time
of American Depositary Receipts issued thereunder ("ADRs"), each of whom
by
accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) other rights to receive
Shares (until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or such other collateral as the Depositary
deems appropriate held by the Depositary for the benefit of Holders (but
such
collateral shall not constitute "Deposited Securities"), (ii) each recipient
of
Pre-released ADRs represents and agrees in writing with the Depositary that
such
recipient or its customer (a) beneficially owns such Shares, (b) assigns
all
beneficial right, title and interest therein to the Depositary, (c) holds
such
Shares for the account of the Depositary and (d) will deliver such Shares
to the
Custodian as soon as practicable and promptly upon demand therefor and (iii)
all
Pre-released ADRs evidence not more than 30% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
may retain for its own account any earnings on collateral for Pre-released
ADRs
and its charges for issuance thereof. At the request, risk and expense of
the
person depositing Shares, the Depositary may accept deposits for forwarding
to
the Custodian and may deliver ADRs at a place other than its office. Every
person depositing Shares under the Deposit Agreement represents and warrants
that such Shares are validly issued and outstanding, fully paid, nonassessable
and free of pre-emptive rights, that the person making such deposit is duly
authorized so to do and that such Shares (A) are not "restricted securities"
as
such term is defined in Rule 144 under the Securities Act of 1933 unless
at the
time of deposit they may be freely transferred in accordance with Rule 144(k)
and may otherwise be offered and sold freely in the United States or (B)
have
been registered under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement
any
Shares required to be registered under the Securities Act of 1933 and not
so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance
with
such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR,
the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Upon surrender
of an
ADR or ADRs by a Holder to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese Commercial
Code, the Depositary will effect the delivery to such Holder of only that
portion of Shares (and any other Deposited Securities relating to such Shares)
comprising a Unit or an integral multiple thereof (the "deliverable portion"
of
such ADR or ADRs). As of the date of the Deposit Agreement, a Unit is comprised
of 100 Shares. For the purpose of the foregoing sentence, the deliverable
portion shall be determined on the basis of the aggregate number of Shares
represented by the entire amount of the ADSs evidenced by the ADR or ADRs
surrendered by the same Holder at the same time. The Depositary will promptly
advise such Holder as to the number of Shares and Deposited Securities, if
any,
represented by the non-deliverable portion of such ADR or ADRs and shall
deliver
to such Holder a new ADR evidencing such non-deliverable portion. In addition,
the Depositary shall notify such Holder of the additional amount of ADSs
which
such Holder would be required to surrender in order for the Depositary to
effect
delivery of all the Shares and Deposited Securities represented by the ADSs
of
such Holder. Notwithstanding any other provision of the Deposit Agreement
or
this ADR, the withdrawal of Deposited Securities may be restricted only for
the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration
ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company
or a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to
any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and
may be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
aggregate number of ADSs surrendered for split-up or combination, by the
Holder
hereof or by duly authorized attorney upon surrender of this ADR at the Transfer
Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped
as
may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR
with a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
A-3
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject
to the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity of any signatory
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law
(including, without limitation, the Foreign Exchange and Foreign Trade Law
of
Japan), regulations, provisions of or governing Deposited Securities and
terms
of the Deposit Agreement and this ADR, as it may deem necessary or proper;
and
(c) compliance with such regulations as the Depositary may establish consistent
with the Deposit Agreement. The issuance of ADRs, the acceptance of deposits
of
Shares, the registration, registration of transfer, split-up or combination
of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed
or when
any such action is deemed advisable by the Depositary.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and
may
apply such deduction or the proceeds of any such sale in payment of such
tax or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property
other
than cash (including Shares or rights) on Deposited Securities is subject
to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the
net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto. Each Holder of an ADR or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective directors, employees, agents and affiliates against,
and
hold each of them harmless from, any claims by any governmental authority
with
respect to taxes, additions to tax, penalties or interest arising out of
any
refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
A-4
(6)
Disclosure
of Interests.
(a) Without
prejudice to the requirements of applicable law concerning disclosure of
beneficial ownership of Shares, any Beneficial Owner (as defined below) of
ADSs
who becomes, or ceases to be, directly or indirectly, the Beneficial Owner
of
more than 5% of all outstanding Shares (whether such interest is held in
whole
or only in part through ADRs) shall, within five days (excluding Saturdays,
Sundays and legal holidays in Japan) following such event, send written notice
to the Depositary at its Transfer Office and to the Company at its principal
office in Japan at ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ 141-0031
Japan, containing the following information:
(i) the
name,
address and nationality of such Beneficial Owner and all other persons by
whom
or on whose behalf such Shares have been acquired or are held; the number
of
ADSs and total Shares (including ADSs) beneficially owned, directly or
indirectly, by such Beneficial Owner immediately before and immediately after
the event requiring notification; the names and addresses of any persons
other
than the Depositary, the Custodian, or either of their nominees, through
whom
such beneficially owned Shares are held, or in whose name such Shares are
registered in the Company's shareholders’ register, and the respective numbers
of Shares beneficially held through each such person; the date or dates of
acquisition of the beneficial interest in such Shares; and the number of
any
Shares in which such Beneficial Owner has the right to acquire, directly
or
indirectly, beneficial ownership and material information as to such right(s)
of
acquisition; and
(ii) the
names, addresses and nationalities of any persons with whom such Beneficial
Owner is acting as a partnership, limited partnership, syndicate or other
group
for the purpose of acquiring, holding, voting or disposing of a beneficial
interest in Shares; and the number of Shares being acquired, held, voted
or
disposed of as a result of such association (being the total number held
by such
group).
Any
Beneficial Owner of more than 5% of all outstanding Shares shall promptly
notify
the Depositary and the Company as provided above of any material change in
the
information previously notified, including, without limitation, a change
of more
than 1% of the percentage of total Shares to which the beneficial ownership
relates.
As
used
herein, the "Beneficial Owner" of shares of Stock means a person who,
directly
or indirectly, through any contract, trust, arrangement, understanding,
relationship, or otherwise, has an interest in any Shares, including any
Shares
which underlie any ADS issued hereunder (including having the right to exercise
or control the exercise of any right conferred by the holding of such Shares
or
the power to vote or to direct voting or the power to dispose or to direct
disposition), and includes any Holder of an ADS.
A-5
(b) Without
prejudice to the requirements of applicable law and the provisions of the
Company's Articles of Incorporation, any Beneficial Owner of Shares shall,
if so
requested in writing by the Company, provide such information with respect
to
the beneficial ownership of Shares (including not only Shares underlying
ADSs,
but also any other Shares in which such Beneficial Owner has an interest
and
including any security convertible into, exchangeable for or exercisable
for
Shares) by such Beneficial Owner as is requested by the Company. Such Beneficial
Owner shall provide such information to the Company in writing within the
time
specified by the Company. Copies of any such request and responses shall
be
contemporaneously sent to the Depositary at its Transfer Office.
(c) If
the
Company notifies the Depositary in writing that a particular Beneficial Owner
has not complied with subsections (a) or (b) above, at the Company's written
request, the Depositary shall instruct the Beneficial Owner to surrender
its
ADSs for cancellation so as to permit the Company to deal directly with such
Beneficial Owner as a shareholder of the Company. Holders and Beneficial
Owners
agree to comply with such requests.
(7)
Charges
of Depositary.
The
Depositary may charge (i) each person to whom ADSs are issued, including,
without limitation, issuances against deposits of Shares, issuances in
respect of Share Distributions, Rights and Other Distributions (as such terms
are defined in paragraph (10)), issuances pursuant to a stock dividend or
stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the ADSs or the Deposited Securities, and (ii) each person surrendering
ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or
reduced for any other reason, U.S. $5.00 for each 100 ADSs (or portion thereof)
issued, delivered, reduced, cancelled or surrendered (as the case may be).
The Depositary may sell (by public or private sale) sufficient securities
and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Holders, by any party depositing or withdrawing
Shares or by any party surrendering ADRs, to whom ADRs are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the ADRs or the
Deposited Securities or a distribution of ADRs pursuant to paragraph (10)),
whichever is applicable (i) to the extent not prohibited by the rules of
the
primary stock exchange upon which the ADSs are listed, a fee of $.02 or less
per
ADS (or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the primary
stock
exchange upon which the ADSs are listed, a fee of $1.50 per ADR or ADRs for
transfers made pursuant to paragraph (3) hereof, (iii) a fee for the
distribution or sale of securities pursuant to paragraph (10) hereof, such
fee
being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit
of
such securities (for purposes of this paragraph (7) treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
to
the extent not prohibited by the rules of the primary stock exchange upon
which
the ADSs are listed, a fee of US$0.02 per ADS (or portion thereof) per year
for
the services performed by the Depositary in administering the ADRs (which
fee
shall be assessed against Holders as of the record date or dates set by the
Depositary not more than once each calendar year and shall be payable at
the
sole discretion of the Depositary by billing such Holders or by deducting
such
charge from one or more cash dividends or other cash distributions), and
(v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders
or by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
A-6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished
by the
Company. The Company furnishes the United States Securities and Exchange
Commission (the "Commission") with certain public reports and documents required
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act of 1934. Such reports and documents may be inspected and copied at the
public reference facilities maintained by the Commission located at the date
of
the Deposit Agreement at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
________________________
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Authorized
Officer
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The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute to each Holder entitled thereto on the record date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution
or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be
made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as
a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions
and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Such U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional cents will be withheld without liability and dealt with
by the
Depositary in accordance with its then current practices.
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a
record
date (which, to the extent applicable, shall be as near as practicable to
any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as for the determination of the Holders who shall be entitled
to receive any distribution on or in respect of Deposited Securities, to
give
instructions for the exercise of any voting rights, to receive any notice
or to
act in respect of other matters and only such Holders shall be so entitled
or
obligated.
A-8
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will,
subject
to any applicable provisions of the laws, rules and regulations of Japan,
be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date
in the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under
the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary will not itself exercise
any
voting discretion in respect of any Deposited Securities.
To
the
extent such instructions are not so received by the Depositary from any Holder,
the Depositary shall deem such Holder to have so instructed the Depositary
to
give a discretionary proxy to a person designated by the Company and the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary proxy
to
a person designated by the Company to vote the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions
are so
given, provided
that no
such instruction shall be deemed given and no discretionary proxy shall be
given
with respect to any matter as to which the Company informs the Depositary
(and
the Company agrees to provide such information promptly in writing) or the
Depositary reasonably believes (in the case of (y) or (z) below) that (x)
the
Company does not wish such proxy given, (y) substantial opposition exists
or (z)
materially affects the rights of holders of Shares.
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable such Holder to return
any
voting instructions to the Depositary in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, to sell by public or private sale any property received
in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all
the
assets of the Company, and to the extent the Depositary does not so amend
this
ADR or make a distribution to Holders to reflect any of the foregoing, or
the
net proceeds thereof, whatever cash, securities or property results from
any of
the foregoing shall constitute Deposited Securities and each ADS evidenced by
this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
A-9
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule, regulation, fiat, order
or
decree of the United States, Japan or any other country, or of any governmental
or regulatory authority or any securities exchange or market or automated
quotation system, the provisions of or governing any Deposited Securities,
any
present or future provision of the Company's charter, any act of God, war,
terrorism or other circumstance beyond its control shall prevent, delay or
subject to any civil or criminal penalty any act which the Deposit Agreement
or
this ADR provides shall be done or performed by it or them (including, without
limitation, voting pursuant to paragraph (12) hereof), or (ii) by reason
of any
exercise or failure to exercise any discretion given it in the Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to
the
extent they are specifically set forth in this ADR and the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary
and its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR;
(d)
in the case of the Company and its agents hereunder be under no obligation
to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or this ADR, which in its opinion may involve
it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished
as
often as may be required; or (e) not be liable for any action or inaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in
acting
upon any written notice, request, direction or other document believed by
them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities or
for the
manner in which any such vote is cast, provided such action or inaction is
in
good faith, or for the effect of any such vote. The Depositary and its agents
may own and deal in any class of securities of the Company and its affiliates
and in ADRs. Notwithstanding anything to the contrary set forth in the Deposit
Agreement or an ADR, the Depositary and its agents may fully respond to any
and
all demands or requests for information maintained by or on its behalf in
connection with the Deposit Agreement, any Holder or Holders, any ADR or
ADRs or
otherwise related hereto to the extent such information is requested or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities
or
other regulators. The Company has agreed to indemnify the Depositary and
its
agents under certain circumstances and the Depositary has agreed to indemnify
the Company under certain circumstances. Neither the Company nor the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
A-10
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to
do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary. The Depositary may appoint
substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by
the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form
and
(ii) do not in either such case impose or increase any fees or charges to
be
borne by Holders, shall be deemed not to prejudice any substantial rights
of
Holders. Notwithstanding the foregoing, if any governmental body or regulatory
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the ADR at any time in accordance with such changed laws, rules
or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination
to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and
its
agents will perform no further acts under the Deposit Agreement and this
ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other
cash.
After the date so fixed for termination, the Company shall be discharged
from
all obligations under the Deposit Agreement except for its obligations to
the
Depositary and its agents.
A-11
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any
ADSs
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement shall be deemed for all purposes to (a) be a party
to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate,
to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement and the applicable ADR(s), the taking of such actions
to
be the conclusive determinant of the necessity and appropriateness
thereof.
(19)
Change
in Unit.
The
Company agrees that it shall give notice to Holders of ADRs of any amendment
to
its Articles of Incorporation changing the number of Shares previously
designated as a Unit as soon as practicable but no later than two weeks after
the adoption of a shareholders' resolution giving effect to such change in
Unit.
A-12