DESCRIPTION OF AMERICAN DEPOSITARY RECEIPTS
American Depositary Receipts
The Bank of New York will be the Depositary for our ADS program and will
issue the ADRs. Each ADR is a certificate evidencing a specified number of
ADSs. Each ADS will represent ownership interests in shares or the right to
receive shares. The shares will be deposited with The Fuji Bank, Limited, The
Bank of New Yorks custodian in Tokyo, Japan. Each ADS will also represent
securities, cash or other property deposited with The Bank of New York, but not
distributed to ADS holders. The Bank of New Yorks Corporate Trust office is
located at 101 Barclay Street, New York, NY 10286.
You may hold ADSs either directly (by having an ADR registered in your
name) or indirectly through your broker or other financial institution. If you
hold ADSs directly, you are an ADR holder. This description assumes you hold
your ADSs directly. If you hold the ADSs indirectly, you must rely on the
procedures of your broker or other financial institution to assert the rights
of ADR holders described in this section. You should consult with your broker
or financial institution to find out what those procedures are.
As an ADR holder, you will not be treated as one of our shareholders and
you will not have shareholder rights which are governed by Japanese law. The
Bank of New York will be the legal owner of the shares underlying your ADRs,
and you must rely on it to exercise the rights of a shareholder. You will have
ADR holder rights. Those rights and the obligations of The Bank of New York
are set out in an agreement among us, The Bank of New York and you, as an ADR
holder. The agreement and the ADRs are generally governed by New York law.
The following describes the material terms of the agreement. For more
complete information, you should read the entire agreement and the ADR.
Directions on how to obtain copies of these are provided in the section
entitled Where You Can Find Additional Information.
Share Dividends and Other Distributions
How Will You Receive Dividends and Other Distributions on the Shares?
The Bank of New York has agreed to pay to you the cash dividends or any of
other distributions it or any of the custodians receives on shares or other
deposited securities after deducting its fees and expenses. You will receive
these distributions in proportion to the number of shares your ADRs represent.
Cash. The Bank of New York will convert any cash dividend or other cash
distribution we pay on the shares into U.S. dollars, if it can do so on a
reasonable basis and can transfer the U.S. dollars to the United States. If
that is not possible or if any approval from the Japanese government is needed
and cannot be obtained, the agreement allows The Bank of New York to distribute
the Japanese yen only to those ADR holders to whom it is possible to do so. It
will hold the Japanese yen it cannot convert for the account of the ADR holders
who have not been paid. It will not invest the Japanese yen and it will not be
liable for any interest.
Before making a distribution, the relevant custodian will deduct any
withholding taxes that must be paid under Japanese law. See Tax
Considerations-Japanese Taxation. It will distribute only whole U.S. dollars
and cents and will round fractional cents to the nearest whole cent. If the
exchange rates fluctuate during a time when The Bank of New York cannot convert
the Japanese yen currency, you may lose some or all of the value of the
distribution, in U.S. dollar terms.
Shares. The Bank of New York may distribute new ADSs representing any
shares we may distribute as a dividend or free distribution, if we furnish it
promptly with satisfactory evidence that it is legal to do so. The Bank of New
York will only distribute whole ADSs. It will sell shares which would require
it to use a fractional ADS and distribute the new proceeds in the same way as
it does with cash. If the Bank of New York does not distribute additional
ADSs, each outstanding ADS will also represent the new shares.
Rights to Receive Additional Shares. If we offer holders of our shares
any rights to subscribe for additional shares or any other rights, The Bank of
New York may make these rights available to you. We must first instruct The
Bank of New York to do so and furnish it with satisfactory evidence that it is
legal to do so. If we dont furnish this evidence and/or give these
instructions, and The Bank of New York decides it is practical to sell the
rights, The Bank of New York will sell the rights and distribute the proceeds
in the same way as it does with cash. The Bank of New York may allow rights
that are not distributed or sold to lapse. In that case, you will receive no
value for them.
If The Bank of New York makes rights available to you, it will exercise
the rights and purchase the shares on your behalf. The Bank of New York will
then deposit the shares and issue additional ADRs to you. It will only
exercise rights if you pay it the exercise price and any other charges the
you to pay.
U.S. securities laws restrict the sale, deposit, cancellation and transfer
of the ADSs issued after exercise of rights. For example, you may not be able
to trade the ADSs freely in the United States. In this case, The Bank of New
York may issue the ADSs under a separate restricted deposit agreement which
will contain the same provisions as the agreement, except for the changes
needed to put the restrictions in place.
Other Distributions. The Bank of New York will send to you anything else
we distribute on deposited securities by any means it thinks is legal, fair and
practical. If it cannot make the distribution in that way, The Bank of New
York has a choice. It may decide to sell what we distributed and distribute
the net proceeds in the same way as it does with cash. Or it may decide to
hold what we distributed, in which case the outstanding ADSs will also
represent the newly distributed property.
The Bank of New York is not responsible if it decides that it is unlawful
or impractical to make a distribution available to any ADR holders. We have no
obligation to register ADSs, shares, rights or other securities under the
Securities Act. We also have no obligation to take any other action to permit
the distribution of ADRs, shares, rights or anything else to ADR holders.
This means that you may not receive the distributions we make on our
shares or any value for them if it is illegal or impractical for us to make
them available to you.
Deposit, Withdrawal and Cancellation
How Are ADRs Issued?
The Bank of New York will issue ADSs if you or your broker deposit shares
or evidence of rights to receive shares with the custodian. Upon payment of
its fees and expenses and of any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, The Bank of New York will register the appropriate
number of ADRs in the names you request and will deliver the ADRs at its office
to the persons you request.
How do ADR Holders Cancel an ADR and Obtain Shares?
You may turn in your ADRs at The Bank of New Yorks office. Upon payment
of its fees and expenses and any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, The Bank of New
York will deliver (1) the underlying shares to an account designated by you and
(2) any other deposited securities underlying the ADR at the office of the
custodian. Or, at your request, risk and expense, The Bank of New York will
deliver the deposited securities at its office.
You may instruct The Bank of New York to vote the shares underlying your
ADRs but only if we ask The Bank of New York to ask for your instructions.
Otherwise, you wont be able to exercise your right to vote unless you cancel
your ADRs and withdraw the shares. However, you may not know about the meeting
far enough in advance to withdraw the shares.
If we ask for your instructions, The Bank of New York will notify you of
the upcoming vote and arrange to deliver our voting materials to you. The
materials will (1) describe the matters to be voted on and (2) explain how you,
on a certain date, may instruct The Bank of New York to vote the shares or
other deposited securities underlying your ADSs as you direct. For
instructions to be valid, The Bank of New York must receive them on or before
the date specified. The Bank of New York will try, as far as practical,
subject to Japanese law and the provisions of our articles of incorporation, to
vote or to have its agents vote the shares or other deposited securities as you
instruct. If you do not validly instruct The Bank of New York, it will deem
that you have instructed them to give a discretionary proxy to a person
designated by us to vote such deposited securities, unless substantial
opposition exists or the matter materially and adversely affects your rights.
No votes will be cast as to fractional shares, which shall be rounded down to
the nearest whole share.
We and The Bank of New York cannot assure you that you will receive the
voting materials in time to ensure that you can instruct The Bank of New York
to vote your shares. In addition, The Bank of New York and its agents are not
responsible for failing to carry out voting instructions or for the manner of
carrying out voting instructions. This means that you may not be able to
exercise your rights to vote and there may be nothing you can do if your shares
are not voted as you requested.
Fees and Expenses
|ADR holders must pay:
|$5.00 (or less) per 100 ADSs
Each issuance of an ADR, including as a
result of a distribution of shares or
rights or other property
Each cancellation of an ADR, including if
the agreement terminates
|$.02 (or less) per ADS
||Any cash payment
|Registration or Transfer Fees
||Transfer and registration of shares on
the share register of a custodian from
your name to the name of The Bank of New
York or its agent when you deposit or
|Expenses of The Bank of New York
||Conversion of Japanese yen to U.S. dollars
Cable, telex and facsimile transmission
|Taxes and other governmental
charges The Bank of New York or
the custodian have to pay on
any ADR or share underlying an
ADR, for example, stock
transfer taxes, stamp duty or
|Any charges payable for The
Bank of New York or its agents
in connection with servicing
the deposited securities
Payment of Taxes
The Bank of New York may deduct the amount of any taxes owed from any
payments to you. It may also sell deposited securities, by public or private
sale, to pay any taxes owed. You will remain liable if the proceeds of the
sale are not enough to pay the taxes. If The Bank of New York sells deposited
securities, it will, if appropriate, reduce the number of ADRs to reflect the
sale and pay to you any proceeds, or send to you any property, remaining after
it has paid the taxes.
Reclassifications, Recapitalizations and Mergers
|Changes the nominal or par value of its shares
The cash, shares or
received by The Bank of
New York will become
|Reclassifies, splits up or consolidates any of
the deposited securities
Each ADR will
its equal share of the
Distributes securities on the shares that are
The Bank of New York may, and will if
|not distributed to you
merges, liquidates, sells all or substantially all of its assets, or
takes any similar action
||Crayfish asks it to, distribute some or
all of the cash, shares or other securities it received. It may also issue new ADRs or
ask you to surrender your outstanding ADRs in exchange for new ADRs, identifying the
new deposited securities.
Amendment and Termination
How May the Deposit Agreement Be Amended?
We may agree with The Bank of New York to amend the agreement and the ADRs
without your consent for any reason. If the amendment adds or increases fees
or charges, except for taxes and other governmental charges or certain expenses
of The Bank of New York, or prejudices an important right of ADR holders, it
will only become effective 30 days after The Bank of New York notifies you of
the amendment. At the time an amendment becomes effective, you are considered,
by continuing to hold your ADR, to agree to the amendment and to be bound by
the ADRs and the agreement as amended.
How May the Deposit Agreement Be Terminated?
The Bank of New York will terminate the agreement if we ask it to do so.
The Bank of New York may also terminate the agreement if The Bank of New York
has told us that it would like to resign and Crayfish has not appointed a new
depositary bank within 90 days. In both cases, The Bank of New York must
notify you at least 90 days before termination.
After termination, The Bank of New York and its agents will be required to
do only the following under the agreement: (1) advise you that the agreement
is terminated, and (2) collect distributions on the deposited securities and
deliver shares and other deposited securities upon cancellation of ADRs. One
year after termination, The Bank of New York may, if practical, sell any
remaining deposited securities by public or private sale. After that, The Bank
of New York will hold the proceeds of the sale, as well as any other cash it is
holding under the agreement, for the pro rata benefit of the ADR holders that
have not surrendered their ADRs. It will not invest the money and will have no
liability for interest. The Bank of New Yorks only obligations will be to
account for the proceeds of the sale and other cash. After termination, our
only obligation will be with respect to indemnification and to pay certain
amounts to The Bank of New York.
Limitations on Obligations and Liability to ADR Holders
Limits on Our Obligations and the Obligations of the Depositary; Limits on
the Liability to Holders of ADRs
The agreement expressly limits our obligations and the obligations of The
Bank of New York, and it limits our liability and the liability of The Bank of
New York. We and The Bank of New York:
||are only obligated to take the actions specifically set forth in
the agreement without negligence or bad faith;
||are not liable if either is prevented or delayed by law or
circumstances beyond their control from performing their obligations
under the agreement;
||are not liable if either exercises discretion permitted under the
||have no obligations to become involved in an lawsuit or other
proceeding related to the ADRs or the agreement on your behalf or on
behalf of any other party; and
||may rely upon any documents they believe in good faith to be
genuine and to have been signed or presented by the proper party.
||In the agreement, we and The Bank of New York agree to indemnify each
other under certain circumstances.
Requirements for Depository Actions
Before The Bank of New York will issue or register transfer of an ADR,
make a distribution on an ADR, or permit withdrawal of shares, The Bank of New
York may require;
||payment of stock transfer or other governmental charges and
transfer or registration fees charged by third parties for the transfer
of any shares or other deposited securities;
||production of satisfactory proof of the identity and genuineness of
any signature or other information it deems necessary; and
|| compliance with regulations it may establish, from time to time,
consistent with the agreement, including presentation of transfer
The Bank of New York may refuse to deliver, transfer, or register
transfers of ADRs generally when the transfer books of The Bank of New York or
we are closed, or at any time if The Bank of New York or we think it is
advisable to do so.
Your Right to Receive the Shares Underlying Your ADRs
You have the right to cancel your ADRs and withdraw the underlying shares
at any time except:
||when temporary delays arise because (1) we or The Bank of New York
has closed its transfer books; (2) the transfer of shares is blocked to
permit voting at a shareholders meeting; or (3) we are paying a
dividend on the shares;
||when you or other ADR holders seeking to withdraw shares owe money
to pay fees, taxes and similar charges; or
||when it is necessary to prohibit withdrawals in order to comply
with any laws or governmental regulations that apply to ADRs or to the
withdrawal of shares or other deposited securities.
This right of withdrawal may not be limited by any other provision of the
Before November 21, 2000, the ADS/share ratio was 5,000/1. On November
21, 2000, the ADS/share ratio changed to 500/1. As the ADS/share ratio is
500/1, and The Bank of New York will not accept for surrender any number of
ADSs which would require the delivery of fractional shares, you will need to
have 500 ADSs or any integral multiple thereof in order to withdraw any shares.
Information About the Company
We are subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly, file certain reports with the SEC.
The Bank of New York will make available for inspection by you at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from us. The Bank of New York will also, upon
written request, send you copies of any reports furnished by us pursuant to the
deposit agreement. These reports and communications, including any such proxy
soliciting material, furnished to The Bank of New York by us will be furnished
in English to the extent such materials are required to be translated into
English pursuant to any regulations of the SEC.
Disclosure of Interests
We may from time to time request you to provide information as to the
capacity in which you own or owned ADRs and regarding the identity of any other
persons then or previously interested in such ADRs and the nature of such
You agree to provide any information requested by us or The Bank of New
York pursuant to the deposit agreement. The Bank of New York has agreed to
comply with reasonable written instructions received from us requesting that
The Bank of New York forward any such requests to you and to forward to us any
such response to such requests received by The Bank of New York.
Pre-Release of ADRs
In certain circumstances, subject to the provisions of the agreement, The
Bank of New York may issue ADRs before deposit of the underlying shares. This
is called a pre-release of the ADR. The Bank of New York may also deliver
shares upon cancellation of pre-released ADRs, even if the ADRs are canceled
before the pre-release transaction has been closed out. A pre-release is
closed out as soon as the underlying shares are delivered to The Bank of New
York. The Bank of New York may receive ADRs instead of shares to close out a
pre-release. The Bank of New York may pre-release ADRs only under the
following conditions: (1) before or at the time of the pre-release, the person
to whom, the pre-release is being made must represent to The Bank of New York
in writing that it or its customer (i) owns the shares or ADRs to be deposited,
(ii) assigns all beneficial rights, title and interest in such shares or ADRs
to The Bank of New York for the benefit of the ADR holders and (iii) will not
take any action with respect to such shares or ADRs that is inconsistent with
the transfer of beneficial ownership; (2) the pre-release must be fully
collateralized with cash or other collateral that The Bank of New York
considers appropriate; and (3) The Bank of New York must be able to close out
the pre-release on not more than five business days notice. In addition, the
Bank of New York will limit the number of ADRs that may be outstanding at any
time as a result of pre-release, although the Bank of New York may disregard
the limit from time to time, if it thinks it is appropriate to do so.