AMENDMENT
NO. 5 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 5
dated
as
of June , 2007 (the "Amendment") to the Deposit Agreement dated as of December
19, 1962, as amended and restated as of October 1, 1982 (including changes
from
Amendment No. 1 dated as of April 1, 1989), as amended as of April 30, 1995,
January 10, 2002 and June 28, 2006 (as so amended and restated and further
amended, the "Deposit Agreement"), among HONDA MOTOR CO., LTD. (Honda Giken
Kogyo Kabushiki Kaisha) (the "Company"), JPMORGAN CHASE BANK, N.A., as
depositary thereunder (the "Depositary"), and all holders from time to time
of
American Depositary Receipts and European Depositary Receipts, as the case
may
be, issued thereunder evidencing American Depositary Shares and European
Depositary Shares, respectively.
WITNESSETH
:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to Section 6.01 of the Deposit Agreement, the Company and the
Depositary desire to amend the terms of the Deposit Agreement and
Receipts.
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.
All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended by this Amendment.
SECTION
2.02.
Effective
thirty days from the date notice is provided to holders of European Depositary
Shares, the Deposit Agreement is amended to remove all reference to European
Depositary Shares and the European Depositary Share portion of the Deposit
Agreement, and the depositary receipt program related thereto, are terminated.
Holders of European Depositary Shares shall be provided the notice required
under Section 6.02 of the Deposit Agreement, as if the Deposit Agreement were
being terminated with respect to such European Depositary Shares.
SECTION
2.03.
Notwithstanding
Section 2.02 hereof, the Deposit Agreement shall remain in full force and effect
with respect to the American Depositary Shares.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01.
Representations
and Warranties
.
The
Company represents and
warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in Japan, nor does any stamp or similar tax or governmental charge
need to be paid in Japan on or in respect of such agreements.
ARTICLE
IV
MISCELLANEOUS
SECTION
5.01.
Effective
Date
.
This
Amendment is dated as of the date set forth above and shall be effective as
the
date hereof. The termination of the European Depositary Share aspect of the
Deposit Agreement shall become effective 30 days after notice thereof has been
provided to the holders of European Depositary Shares.
SECTION
5.02.
Indemnification
.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of the Deposit Agreement in connection with any and all liability
it
or they may incur as a result of the terms of this Amendment and the
transactions contemplated herein.
SECTION
5.03.
Counterparts
.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
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.
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HONDA
MOTOR CO., LTD. (Honda Giken
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Kogyo
Kabushiki Kaisha)
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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:
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Exhibit
(a)(2)
American
Depositary Receipt
For
Common Stock of
Honda
Motor Co., Ltd.
(HONDA
GIKEN KOGYO KABUSHIKI KAISHA)
(Incorporated
under the Laws of Japan)
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American
Depositary Shares
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(Each
such share representing one share of
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Common
Stock)
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JPMorgan
Chase Bank, N.A, a national banking association organized under the laws of
the
United States, as Depositary (herein called the “Depositary”), hereby certifies
that ______________________ is the owner of _____________ American Depositary
Shares ("American Depositary Shares") representing Common Stock, including
evidence of rights to receive such Common Stock, ("Stock") of Honda Motor Co.
Ltd. (Honda Giken Kogyo Kabushiki Kaisha), a corporation duly incorporated
and
existing under the laws of Japan (the "Company"). Each American Depositary
Share
represents of one share of Stock at the date hereof, deposited at the principal
office of The Bank of Tokyo-Mitsubishi, Ltd., Tokyo (the "Custodian"), as agent
of the Depositary. The address of the Depositary's office is 4 New York Plaza,
New York, New York 10004 (the "Depositary's Office").
2.
The
Deposit Agreement
.
The
American Depositary Receipts of which this Receipt is one (the "Receipts")
are
made available to shareholders of the Company who are not residents of Japan,
upon the terms and conditions set forth in the Deposit Agreement dated as of
December 10, 1962, as amended and restated as of October 1, 1982 (as the same
may be further amended from time to time, the "Deposit Agreement") among the
Company, the Depositary, and all holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and becomes bound by all the terms and provisions thereof. The Deposit Agreement
(copies of which are on file with the Depositary and the Custodian) sets forth
the rights of holders of the Receipts 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, to which reference is hereby made.
3.
Surrender
of Receipts and Withdrawal of Stock.
Upon
surrender of this Receipt at the Depositary's Office or at such other offices
as
the Depositary may designate of a Holder's written order directing the
Depositary to cause the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt to be withdrawn and delivered to
or
upon the written order of the person or persons designated in such order along
with a certificated Receipt (properly endorsed in blank or accompanied by proper
instruments of transfer in blank, to the extent required by the Depositary)
or,
in the case of a Direct Registration Receipt, proper instruments of transfer
in
blank, to the extent required by the Depositary, the Depositary shall (i) cancel
such certificated Receipt or make a notation on the Direct Registration System
reflecting the cancellation of such Direct Registration Receipts, as the case
may be, and (ii) direct the Custodian to deliver without unreasonable delay,
subject to the Deposit Agreement and to the provisions of or governing Deposited
Securities, to or upon the written order of the person or persons designated
in
such order, the deliverable portion (as defined below) of such Stock and other
Deposited Securities at the time represented by the Depositary Shares evidenced
by such Receipt, and the Custodian shall so deliver such deliverable portion
of
such Stock and other Deposited Securities, at the office of the Custodian,
except that the Depositary may, at the request, risk and expense of the Holder
make delivery of such Deposited Securities without unreasonable delay to such
person or persons at the Depositary's Office or at any other place specified
by
the Holder in such order. Notwithstanding the foregoing, to the extent required
by the operation of applicable provisions of the Japanese Commercial Code or
any
other Japanese law the Depositary will effect the delivery to such holder of
only that portion of Stock (and any other Deposited Securities relating to
such
Stock) comprising a Unit of 100 shares of Stock (or such other number of shares
of Stock as the Articles of Incorporation of the Company may designate as a
“Unit of Shares”) or an integral multiple thereof (the “deliverable portion” of
such Receipt or Receipts). For the purpose of the foregoing sentences, the
deliverable portion shall be determined on the basis of the aggregate number
of
shares of Stock represented by the entire amount of the American Depositary
Shares evidenced by such Receipt or Receipts, surrendered by the same holder
at
the same time. The Depositary will promptly advise such holder as to the amount
of Stock and Deposited Securities, if any, represented by the non-deliverable
portion of such Receipt or Receipts and shall deliver to such holder a new
American Depositary Receipt evidencing such non-deliverable portion. In
addition, the Depositary shall notify such holder of the additional amount
of
American Depositary Shares which such holder would be required to surrender
in
order for the Depositary to effect delivery of all the Stock and Deposited
Securities represented by the American Depositary Shares of such holder.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Depositary may restrict withdrawals of Deposited Securities only
for the reasons set forth in General Instruction I.A.(1) to Form F-6 under
the
Securities Act of 1933.
4.
Transfers,
Split-ups, Combinations of Receipts.
This
Receipt is transferable on the books of the Depositary upon surrender of the
Receipt to the Depositary at such offices as it may designate properly endorsed
or accompanied by a properly executed and duly stamped instrument of transfer,
and upon such transfer the Depositary shall execute and deliver an American
Depositary Receipt to or upon the order of the person entitled thereto, as
provided in the Deposit Agreement. This Receipt may be split into other American
Depositary Receipts or combined with other American Depositary Receipts into
one
American Depositary Receipt. The Depositary may close the register at any time
or from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
5.
Conditions
to Execution and Delivery, Registration of Transfer, etc. of Receipts.
As
a
condition precedent to the execution and delivery, registration, registration
of
transfer, split-up or combination of any Receipt, the delivery of any
distribution thereon or, subject to the last sentence of Paragraph 3, the
withdrawal of any Deposited Securities, the Depositary, the Company or any
Custodian may require the Holder, the presenter of the Receipt or the depositor
of Stock: (a) payment of a sum sufficient to pay or reimburse it for payment
of
(i) any stock transfer or other tax or other governmental charge with respect
thereto, (ii) any stock transfer or registration fees for the registration
of
transfers of Stock or other Deposited Securities upon any applicable register
and (iii) any charges of the Depositary upon delivery of Receipts against
deposits of Stock and upon withdrawal of Deposited Securities against surrender
of Receipts; (b) the production of proof satisfactory to it as to the identity
and genuineness of any signature and as to any other matter contemplated by
Section 3.01 of the Deposit Agreement; and (c) compliance with such reasonable
regulations, if any, as the Depositary and the Company may establish consistent
with the provisions of this Deposit Agreement. Any person presenting Stock
for
deposit, or any holder of a Receipt, 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 other information, and
to
execute such certificates as the Depositary may deem necessary or proper.
6.
Suspension
of Delivery, Transfer, etc.
The
delivery of Receipts against deposits of Stock generally or against deposits
of
particular Stock may be suspended, or the registration of transfer of Receipts
in particular instances may be refused, or the registration of transfer or
surrender of outstanding Receipts generally may be suspended, during any period
when the register of shareholders of the Company is closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at
any
time because of any requirement of law or of any government or governmental
body
or commission or under any provision of the Deposit Agreement. The Depositary
may issue Receipts against rights to receive Stock from the Company, or any
Custodian, or any registrar, transfer agent, clearing agency or other entity
recording Stock ownership or transactions. The Depositary may issue Receipts
against other rights to receive Stock (a “pre-release”) only if (x) such
Receipts are fully collateralized (marked to market daily) with cash or U.S.
government securities until such Stock is deposited; (y) the applicant for
such
Receipts represents in writing that it owns such Shares, has assigned all
beneficial right, title and interest in such Stock to the Depositary, and shall
not dispose of such Stock other than in satisfaction of the pre-release (no
evidence of ownership is required or time of delivery specified) and (z) all
such Receipts represent not more than 20% of Stock actually deposited. Such
collateral, but not the earnings thereon, shall be held for the benefit of
the
Holders. The Depositary may retain for its own account any compensation for
the
issuance of Receipts against such other rights to receive Stock, including
without limitation earnings on the collateral securing such rights. Without
limitation of the foregoing, the Depositary will not knowingly accept any Stock
which would be subject to the registration provisions of the Securities Act
of
1933, as amended, unless a registration statement is in effect as to such Stock.
7.
Liability
of Holder for Taxes.
Any tax
or other governmental charge payable by the Depositary 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, or any withdrawal of Deposited Securities represented hereby 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.
8.
Warranties
by Depositor.
Every
person depositing Stock shall be deemed to represent and warrant that such
Stock
and each certificate therefor is validly issued and outstanding, fully paid
and
non-assessable, that such Stock is owned by a non-resident of Japan and that
the
person making such deposit is duly authorized so to do and that such Stock
is
not a restricted security as such term is defined in Rule 144 under the
Securities Act of 1933. Such representations and warranties shall survive such
deposit of Stock and the issuance of Receipts in respect thereof.
9.
Amendment
of Deposit Agreement.
The form
of the Receipts and any provisions of the Deposit Agreement may be amended
by
agreement between the Company and the Depositary in any respect which they
may
deem necessary or desirable. Any amendment imposing or having the effect of
increasing any fees or charges payable by the holders of Receipts (other than
taxes or other governmental charges, registration fees and cable, telex or
facsimile transmission and delivery expenses) or otherwise prejudicing any
substantial existing rights of holders of Receipts shall, however, not become
effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the record holders of
outstanding American Depositary Receipts and published as provided in the
Deposit Agreement. Every holder of a Receipt at the time any such amendment
so
becomes effective shall be deemed, by continuing to hold such Receipt to consent
and agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the holder hereof
to surrender this Receipt and receive therefor the Deposited Securities
represented hereby, except in order to comply with mandatory provisions of
applicable law.
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, JPMorgan Chase Bank, N.A. has been appointed
Registrar of Receipts issued under the Deposit Agreement.
10.
Charges
of Depositary.
The
Depositary will charge the party to whom Receipts are delivered against deposits
of Stock and the party surrendering Receipts for delivery of Stock and other
Deposited Securities $5.00 per 100 American Depositary Shares or fraction
thereof represented by the Receipt or Receipts delivered or surrendered, except
that the Company will pay such charges for Receipts delivered against deposits
made in connection with dividends in or free distributions of Stock or in
connection with the exercise by the Depositary of rights to subscribe for
additional Stock made available by the Depositary to holders of Receipts. The
Company will pay other charges of the Depositary (subject in certain cases
to
consultation and agreement and agreement between the Company and the
Depositary), with the exception of taxes and other governmental charges, stock
transfer or registration fees on deposits or transfers of Stock, and such cable,
telex or facsimile transmission and delivery charges as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Stock or
holders of Receipts.
11.
Title
to Receipts.
It
is a
condition of this Receipt, and every successive holder hereof by accepting
or
holding the same, consents and agrees, that title to this Receipt (and to the
American Depositary Shares evidenced thereby), when properly endorsed or
accompanied by a properly executed instrument of transfer is transferable by
delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until this Receipt shall be transferred on the books
of
the Depositary, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder hereof for the time being as the absolute owner hereof
for the purpose of determining the person entitled to dividends or other
distributions or to any notice provided for in the Deposit Agreement and for
all
other purposes.
12.
Dividends
and Distributions.
Whenever
the Depositary receives any cash dividend or other cash distribution by the
Company on the Deposited Securities, the Depositary will, if at the time of
receipt thereof any non-dollar currency amounts distributable to record holders
of American Depositary Receipts can in its judgment be converted on a reasonable
basis into United States dollars distributable to the record holders of American
Depositary Receipts entitled thereto and subject to the provisions of the
Deposit Agreement, convert such dividend or distribution into United States
dollars and distribute the resulting amount to such holders; provided, however,
that the amount distributed will be reduced by any amounts required to be
withheld by the Company or the Depositary on account of taxes. If any
distribution consists of a dividend in, or free distribution of, Stock, the
Depositary may in its discretion, with the approval of the Company, distribute
to the record holders of American Depositary Receipts entitled thereto
additional Receipts representing the amount of Stock received as such dividend
or free distribution. Other distributions received on the Deposited Securities
may be made available to record holders of American Depositary Receipts as
provided in the Deposit Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary may, in its
discretion, sell the amount of Stock represented by the aggregate of such
fractions at public or private sale, at such place or places and upon such
terms
as it may deem proper or, if any portion of such amount consists of shares
of
Stock which are insufficient in number to constitute a full Unit, sell such
portion to the Company in accordance with the applicable provisions of the
Japanese Commercial Code or any other Japanese law, and distribute the net
proceeds of any such sale, all in the manner and subject to the conditions
described in the Deposit Agreement.
13.
Rights.
In the
event that the Company shall offer or cause to be offered to the holders of
any
Deposited Securities 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 American Depositary Receipts in such manner as
the
Depositary may determine, either by the issue to the record holders 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 record holders of
American Depositary Receipts by the issue of warrants or otherwise, or if and
to
the extent so instructed by record holders of American Depositary Receipts
that
such holders do not desire to exercise such rights the Depositary in its
discretion may, if the applicable laws permit such transfer, 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 record holders of American
Depositary 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 exceeds 1% of the total number of shares of Stock then outstanding,
if
registration under the Securities Act of 1933, as amended, of the securities
to
which any rights relate is required for the Company to offer such rights to
holders of Receipts and sell the securities represented by such rights, the
Company has agreed with the Depositary 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, in the
opinion of counsel, from registration under the provisions of such Act.
If
any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights to be made available to holders of Receipts, the Company has agreed
with
the Depositary that the Company will use its best efforts, to the extent not
unduly burdensome in the judgment of the Company, to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of the rights, to enable holders of Receipts to exercise such rights.
14.
Fixing
of Record Date.
Whenever
the Depositary shall receive notice of the fixing of a record date by the
Company for the determination of holders of Stock or other Deposited Securities
entitled to receive any cash dividend or other cash distribution or any
distribution other than cash, or any rights to be issued with respect to Stock
or other Deposited Securities, or whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Stock or other Deposited Securities entitled to vote at any meeting of any
such holders, the Depositary shall fix a record date for the determination
of
the holders of American Depositary Receipts who shall be entitled to receive
such dividend, distribution or rights, or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights at any such meeting
and shall give notice thereof to the holders of Receipts as soon as practicable
thereafter, as provided in the Deposit Agreement.
15.
Voting
Deposited Securities.
Upon
receipt of notice of any meeting of holders of Stock or other Deposited
Securities the Depositary shall, as soon as practicable thereafter, and after
fixing a record date for determining the record holders of American Depositary
Receipts entitled to give instructions for the exercise of voting rights, as
provided in the Deposit Agreement, mail to the record holders of Receipts (a)
a
copy of the notice of such meeting (which shall be in the English language)
received by the Depositary and (b) a statement that the record holders of
American Depositary Receipts at the close of business on a specified record
date
will be entitled, subject to any applicable provisions of law and of the
Articles of Incorporation of the Company, to instruct the Depositary as to
the
exercise of their voting rights, 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 request of a record holder
of
an American Depositary Receipt on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary will
endeavor insofar as practicable to vote or cause to be voted the Stock or other
Deposited Securities represented by such Receipt in accordance with the
instructions set forth in such request. The above notice to record holders
of
American Depositary Receipts will state that if no instructions are received
by
the Depositary on or before the date established by the Depositary for such
purpose the Depositary will give a discretionary proxy to a person designated
by
the Company unless the Company has knowledge of any contest as to the action
to
be taken at the meeting or unless action is to be taken to authorize a merger,
consolidation or amalgamation (except an amalgamation between the Company and
one or more of its 100% owned Japanese subsidiaries) or on any other matter
which may affect substantially the rights or privileges of the holders of such
Stock or other Deposited Securities. So long as the Depositary shall act in
good
faith it shall not be responsible for any failure to carry out any instructions
filed with it or to comply with the provisions of any such notice or for the
manner or effect of any such vote, with or without instructions or for not
exercising any right to vote.
16.
Changes
Affecting Deposited Securities.
Upon any
split-up, consolidation, cancellation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities or property that shall be received by the Depositary or the
Custodian in exchange for, or in conversion, replacement, or otherwise in
respect of, Deposited Securities shall constitute Deposited Securities under
this Deposit Agreement, and each American Depositary Share shall thereafter
subject to applicable laws also represent the right to receive Deposited
Securities including the securities and property so received in exchange or
conversion to the extent that additional Receipts or new depositary receipts
or
the net proceeds of the sale of such securities or property are not effectively
distributed to Holders pursuant to the following sentences of this Paragraph
16.
In any such case the Depositary, after consultation with the Company if
practicable, may, and shall, if the Company shall so request, subject to this
Deposit Agreement, execute and deliver additional Receipts as in the case of
a
dividend of Stock, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts or other depositary receipts specifically describing
such newly received Deposited Securities. Promptly upon the receipt of written
notice from the Company as to the occurrence of any such event, the Depositary
shall give notice thereof in writing to all Holders at the Company’s expense.
Notwithstanding
the foregoing, in the event that the Depositary determines that any security
or
property so received may not be lawfully or practicably distributed to all
or
certain Holders, the Depositary, after consultation with the Company if
practicable, may and shall, if the Company requests, sell such securities or
property at public or private sale, at such place or places and upon such terms
as it may deem proper, and allocate the net proceeds of such sales (after
payment of the expenses thereof and any taxes or governmental charges) for
the
account of the Holders otherwise entitled to such securities or property upon
an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash.
17.
Reports;
Inspection of Transfer Books.
The
Depositary shall make available for inspection by Holders at the Depositary's
Office, at the office of the Custodian and at any other designated transfer
offices any reports and communications, including any proxy solicitation
material, received from the Company which are both (a) received by the
Depositary, the Custodian or the nominee of either as the holder of Deposited
Securities and (b) made generally available to the holders of Stock or Deposited
Securities by the Company. In connection with any registration statement
relating to the Receipts or with any undertaking contained therein, the Company
and the Depositary shall each furnish to the other and to the Commission such
information as shall be required to make such filings or comply with such
undertakings.
18.
Liability
of the Company, the Depositary and the Custodian.
Neither
the Depositary nor the Company nor the Custodian shall incur any liability
to
any holder of this Receipt, if by reason of any provision of any present or
future law or regulation of Japan or any other country, or of any action of
any
other governmental authority, or in the case of the Depositary or the Custodian,
by reason of any provision, present or future, of the Articles of Incorporation
or the Share Handling Regulations of the Company, or by reason of any act of
God
or war or other circumstance beyond its control, the Depositary, the Company
or
the Custodian shall be prevented or forbidden from, or subjected to any civil
or
criminal penalty on account of, doing any act which the Deposit Agreement
provides shall be done; nor shall the Depositary, the Company or the Custodian
incur any liability to any holder hereof by reason of any non-performance or
delay, caused as aforesaid, in performance of any act which it is so provided
shall or may be done, or by reason of any exercise of, or failure to exercise
any discretion provided for in the Deposit Agreement.
19.
Obligations
of the Depositary, the Custodian and the Company.
Neither
the Depositary, nor the Company nor the Custodian assumes any obligation nor
shall any of them be subject to any liability under the Deposit Agreement to
holders of Receipts, 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 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 satisfactory indemnity be furnished
as often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary, nor the Custodian nor
the Company shall be liable for any action or non-action by it in reliance
upon
the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information
or for any translation of any notice, report or other document made by a
translator believed by it to be competent. Neither the Depositary nor the
Custodian will be responsible for any failure to carry out any instructions
to
vote any of the Deposited Securities, or for the manner or effect of any such
vote, made either with or without request as long as any such action or
non-action is in good faith. The Company will indemnify the Depositary, the
Registrar and the Custodian against any liability which may arise out of acts
performed, in accordance with the provisions of the Deposit Agreement and of
the
Receipts (i) by the Depositary, the Custodian or any Registrar, or any of their
agents, except for any liability arising out of its own negligence or bad faith
or (ii) by the Company or any of its agents. The Depositary will indemnify
the
Company against any liability which may arise out of acts performed or omitted
by the Depositary or its agents (including the Custodian) due to negligence
or
bad faith. The Depositary and the Custodian may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
20.
Resignation
and Removal of Depositary; Substitution of Custodian.
The
Depositary may at any time (i) resign by written notice of its election so
to do
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment, or (ii) be
removed by the Company effective upon the appointment of a successor Depositary
and its acceptance of such appointment, all as provided in the Deposit
Agreement. The Depositary may at any time appoint a substitute custodian.
21.
Termination
of Deposit Agreement.
The
Depositary will, if the Company at any time so requests, terminate the Deposit
Agreement by mailing notice of such termination to the record holders of the
American Depositary Receipts then outstanding and publishing notice as provided
in the Deposit Agreement, in each case at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate
the
Deposit Agreement in accordance with the same notice requirements if at any
time
60 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. Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, the Registrar and
the
Custodian with respect to indemnification, charges and expenses.
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 the non-deliverable
portion of Receipts so surrendered pursuant to the Deposit Agreement and will
continue to effect transfers of Receipts representing non-deliverable portions
in accordance with the Deposit Agreement. At any time after the expiration
of
six months from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement at public or private sale,
at
such place or places and upon such terms as it deems proper or, if any portion
of such Deposited Securities consists of shares of Stock which are insufficient
in number to constitute a full Unit, sell such portion to the Company in
accordance with the applicable provisions of the Japanese Commercial Code or
other Japanese law, and may thereafter hold the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, for the pro rata benefit of the holders of
Receipts which have not theretofore been surrendered.
22.
Governing
Law.
This
Receipt and all rights hereunder and provisions hereof shall be governed by
and
construed in accordance with the laws of the State of New York, United States
of
America. It is understood that notwithstanding any present or future provision
of the laws of the State of New York, the rights of holders of Stock and other
Deposited Securities and the duties and obligations of the Company in respect
of
such holders, as such shall be governed by the laws of Japan.
23.
Disclosure
of Beneficial Ownership
.
(a)
Without prejudice to the requirements of applicable law concerning disclosure
of
beneficial ownership of shares of Stock, any Beneficial Owner (as defined below)
of American Depositary Shares who becomes, or ceases to be, directly or
indirectly the Beneficial Owner of more than 5% of all outstanding shares of
Stock (whether such interest is held in whole or only in part through American
Depositary Receipts) shall, within five days (excluding Saturdays, Sundays
and
legal holidays in any part of Japan) following such event, send written notice
to the Depositary at the Depositary's Office and to the Company at its principal
office in Japan currently at 1-1, 2-chome, Minami-Aoyama, Minato-ku, Tokyo
107
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 of Stock have been acquired or are held; the
number of American Depositary Shares and total shares of Stock and total shares
of Stock equivalents (as defined below) (including American Depositary Shares)
forming the basis of the said 5% beneficial ownership beneficially owned
directly or indirectly by such Beneficial Owner (“beneficially owned shares”)
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 beneficially owned shares are registered in the Company’s
share register, and the respective numbers of beneficially owned shares held
through each such person; the date or dates of acquisition of the beneficial
interest in such beneficially owned shares, and the number of beneficially
owned
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
name,
addresses and nationalities of any person 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
beneficially owned shares; and the number of beneficially owned 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 of Stock 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 1% or more of total shares of Stock to which the beneficial ownership
relates.
As
used
herein, the “Beneficial Owner” means a person who, directly or indirectly,
through any contract, trust, arrangement, understanding, relationship, or
otherwise, has an interest in any shares of Stock and shares of Stock
equivalent, including any shares of Stock which underlie any American Depositary
Shares issued hereunder (including having the right to exercise or control
the
exercise of any right conferred by the holding of such shares of Stock for
shares of Stock equivalent or the power to vote or to direct voting or the
power
to dispose or to direct disposition or in the case of shares of Stock
equivalent, the power to exercise the right to subscribe for or to convert
into
shares of Stock represented thereby), and includes any Holder of an American
Depositary Share.
(b)
Without
prejudice to the requirements of applicable law and the provisions of the
Company’s Articles of Incorporation, any Beneficial Owner of beneficially owned
shares shall, if so requested in writing by the Company, provide such
information with respect to the beneficial ownership of shares of Stock and
shares of Stock equivalent (including not only shares of Stock underlying
American Depositary Shares, but also any other shares of Stock and shares of
Stock equivalent in which such Beneficial Owner has an interest) 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 the Depositary's Office.
As
used
herein, “shares of Stock equivalent” means convertible bonds convertible into
shares of Stock, bonds with warrants to subscribe for shares of Stock and
subscription rights or warrants to subscribe for shares of Stock, and the number
of shares of Stock attributable to such shares of Stock equivalent shall be
the
number of shares of Stock into which such convertible bonds are convertible
or
which are subscribed for upon exercising the subscription rights represented
by
such bonds with warrants, rights or warrants, at the conversion price or rate
or
the subscription price or rate applicable at the time of determination of the
relevant beneficial ownership.
In
calculating the percentage ownership of the Beneficial Owner, the number of
shares of Stock which are issuable upon conversion of the convertible bonds
or
upon exercise of the subscription rights represented by the bonds with warrants,
rights of warrants beneficially owned by the Beneficial Owner shall be added
to
both the numerator and the denominator of the fraction of which the numerator
is
the total number of shares of Stock beneficially owned by the Beneficial Owner
and the denominator of which is the total number of the outstanding shares
of
Stock.
(c)
If
the
Company notifies the Depositary in writing that a particular Beneficial Owner
has not complied with subsections (a) or (b), the Depositary shall use
reasonable efforts not to vote or cause to be voted any shares of Stock held
by
it or any Custodian as to which such Beneficial Owner of such shares of Stock
shall have failed to comply with the provisions of subsections (a) or (b) above
but only to the extent that such Beneficial Owner is the Beneficial Owner of
an
American Depositary Receipt(s).
24.
Available
Information.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the Commission.
Such reports and other information may be inspected and copied at public
reference facilities maintained by the Commission located at the date of the
Deposit Agreement at 100 F Street N.E., Washington DC 20549.
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Dated:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Depositary
and Registrar
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Authorized
Officer
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Please
Insert ss # or Other
Identifying
Number of Assignee
_______________________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________________________________
(Please
print or typewrite name and address of assignee)
the
within the American Depositary Receipt and all rights and interests represented
hereby, and hereby irrevocably constitutes and appoints
__________________________________ attorney, to transfer the same on the books
of the within name Depositary, with full power of substitution in the
premises.
Dated:______
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Signature
_________________________
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Signature
Guaranteed:
Note:
The
signature to any endorsement hereon must correspond with the name as written
upon the face of the Receipt, in every particular, without alteration or
enlargement, or any change whatever.