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HITACHI, LTD.
(Kabushiki Kaisha Hitachi Seisakusho)
AND
CITIBANK, N.A.,
As Depositary,
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
Dated as of July 9, 1963
as Amended and Restated
as of March 6, 1981
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DEPOSIT AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS.......................................................................................................4
SECTION 1.01. "Hitachi"...............................................................................4
SECTION 1.02. "Depositary;" "Corporate Trust office"..................................................4
SECTION 1.03. "Custodian".............................................................................4
SECTION 1.04. "Deposit Agreement".....................................................................5
SECTION 1.05. "Stock".................................................................................5
SECTION 1.06. "Deposited Securities"..................................................................5
SECTION 1.07. "Receipt"...............................................................................5
SECTION 1.08. "American Depositary Shares"............................................................5
SECTION 1.09. "record holder".........................................................................5
SECTION 1.10. "dollars"...............................................................................5
SECTION 1.11. "Securities Act of 1933"................................................................6
SECTION 1.12. "Debenture".............................................................................6
SECTION 1.13. "Conversion Agent"......................................................................6
SECTION 1.14. "Indenture".............................................................................6
SECTION 1.15. "Trustee"...............................................................................6
SECTION 1.16. "Registrar".............................................................................6
SECTION 1.17. "Old Receipts"..........................................................................6
SECTION 1.18. "yen"...................................................................................6
SECTION 1.19. "Depositary's Agent"....................................................................6
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF STOCK, DEPOSIT OF DEBENTURES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS..........................................................................................................6
SECTION 2.01. Form and Transferability of Receipts....................................................6
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.........................................................................7
SECTION 2.03. Deposit of Debentures; Execution and Delivery of Receipts upon
Conversion Thereof......................................................................9
SECTION 2.04. Transfer of Receipts; Combinations and Split-ups.......................................12
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited Securities...........................12
SECTION 2.06. Limitations on Execution and Delivery, Transfer and Surrender
of Receipts............................................................................13
SECTION 2.07. Lost Receipts, Etc.....................................................................14
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts...................................14
SECTION 2.09 Exchange of Old Receipts for Receipts Issued Hereunder................................14
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.......................................................................14
SECTION 3.01. Filing Proofs, Certificates and Other Information......................................14
SECTION 3.02. Payment of Taxes or Other Governmental Charges.........................................15
SECTION 3.03. Warranties on Deposit of Stock.........................................................15
ARTICLE IV.
THE DEPOSITED SECURITIES.........................................................................................15
SECTION 4.01. Cash Distributions.....................................................................15
SECTION 4.02. Distributions Other Than Cash..........................................................15
SECTION 4.03. Distributions in Stock.................................................................16
SECTION 4.04. Rights.................................................................................16
SECTION 4.05. Conversion of Foreign Currency.........................................................17
SECTION 4.06. Fixing of Record Date..................................................................18
SECTION 4.07. Voting Rights..........................................................................18
SECTION 4.08. Changes and Reclassifications, Recapitalizations, etc..................................18
SECTION 4.09. Reports................................................................................19
SECTION 4.10. Lists of Receipt Holders...............................................................19
ARTICLE V.
THE DEPOSITARY, THE CUSTODIAN AND HITACHI........................................................................20
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary; Registrar..................................................................20
SECTION 5.02. Non-Performance or Delay in Performance by the Depositary
or Hitachi or the Custodian or any Depositary's Agent..................................20
SECTION 5.03. Obligations of the Depositary, Hitachi, the Custodian and
the Depositary's Agent.................................................................20
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary...................................................................21
SECTION 5.05. The Custodian..........................................................................22
SECTION 5.06. Notices and Reports....................................................................22
SECTION 5.07. Issuance of Additional Stock, etc......................................................23
SECTION 5.08. Indemnification........................................................................24
SECTION 5.09. Charges and Expenses...................................................................24
SECTION 5.10. Financial Statements...................................................................24
SECTION 5.11. Withholding of Japanese Tax............................................................25
ARTICLE VI.
AMENDMENT AND TERMINATION........................................................................................25
SECTION 6.01. Amendment..............................................................................25
SECTION 6.02. Termination............................................................................25
ARTICLE VII.
MISCELLANEOUS....................................................................................................26
SECTION 7.01. Agreement May Be Executed in Counterparts; Filing of Copies............................26
SECTION 7.02. Agreement for Exclusive Benefit of Parties.............................................26
SECTION 7.03. Effect of Invalidity of Provisions.....................................................26
SECTION 7.04. Holders of Receipts are Parties........................................................26
SECTION 7.05. Notices................................................................................27
SECTION 7.06. Appointment of Depositary's Agents.....................................................27
SECTION 7.07. Closing Stock Transfer Books...........................................................27
SECTION 7.08. Appointment by Hitachi of Agent for Service of Process.................................28
SECTION 7.09. Amendment and Restatement..............................................................28
SECTION 7.10. Headings...............................................................................28
SECTION 7.11. Law of New York to Govern..............................................................28
Exhibit A -- Form of Receipt
Exhibit B -- Charges of the Depositary
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT (herein called the Deposit Agreement), dated as of
July 9, 1963 as amended and restated as of March 6, 1981, among HITACHI, LTD.
(Kabushiki Kaisha Hitachi Seisakusho), incorporated under the laws of Japan
(herein called Hitachi), CITIBANK, N.A., a national banking association
incorporated and existing under the laws of the United States of America (herein
called the Depositary), and all holders from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, Hitachi desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of registered shares of Common Stock,
each of 50 yen par value (herein called Stock) of Hitachi from time to time with
the Depositary or with The Industrial Bank of Japan, Limited, Tokyo, Japan, or
The Fuji Bank, Limited, Tokyo, Japan, as agents of the Depositary for the
purposes of this Deposit Agreement, and for the issuance of American Depositary
Receipts in respect of the Stock so deposited;
WHEREAS, it is further desired to provide, as hereinafter set forth
in this Deposit Agreement, for the conversion by the Depositary into shares of
Stock of Hitachi's Debentures, as hereinafter defined, and, except as herein
otherwise provided, for the issuance of American Depositary Receipts in respect
of the Stock issued on such conversion; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
Now, therefore, in consideration of the premises, it is agreed by
and between the parties hereto as follows:
ARTICLE I.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. The term "Hitachi" shall mean Hitachi, Ltd. (Kabushiki
Kaisha Hitachi Seisakusho), incorporated under the laws of Japan, and its
successors.
SECTION 1.02. The term "Depositary" shall mean Citibank, N.A., a
national banking association incorporated and existing under the laws of the
United States of America, presently having its Corporate Trust office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and its successors as Depositary hereunder
such Corporate Trust office or any other office designated by the Depositary is
herein called the "Corporate Trust office".
SECTION 1.03. The term "Custodian" shall mean either The Industrial
Bank of Japan, Limited or The Fuji Bank, Limited, each a corporation having a
designated office in Tokyo, Japan, agents of the Depositary for the purposes of
this Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary, pursuant to the terms of Section 5.05, as
substitute Custodian hereunder. Each Custodian shall act severally. Provided,
however, that the term Custodian when used in Section 2.03 hereof and in Article
Three of the related Indenture shall mean only The Industrial Bank of Japan,
Limited, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.05 as a substitute Custodian
for The Industrial Bank of Japan, Limited. As of the date of this Deposit
Agreement such office of The Industrial Bank of Japan, Limited is located at
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000, Xxxxx and such office of The
Fuji Bank, Limited is located at 0, Xxxxxx-xxx 0-xxxxx, Xxxxxxxxxx, Xxxx-xx,
Xxxxx 000, Xxxxx.
SECTION 1.04. The term "Deposit Agreement" shall mean this
instrument and all instruments supplemental hereto.
SECTION 1.05. The term "Stock" shall mean shares in registered form
of the Common Stock of Hitachi, par value 50 yen per share, heretofore validly
issued and presently outstanding, fully paid and non-assessable, or hereafter
validly issued and outstanding and fully paid and non-assessable.
SECTION 1.06. The term "Deposited Securities" as of any time shall
mean Stock at such time deposited under this Deposit Agreement, as a result of
deposits of Stock pursuant to Section 2.02 or as a result of conversions
pursuant to Section 2.03, and any and all other securities, property and cash
received by the Depositary or the Custodian in respect thereof and at such time
held hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.07. The term "Receipt" shall mean one of the American
Depositary Receipts issued hereunder.
SECTION 1.08. The term "American Depositary Shares" shall mean the
rights represented by the Receipts issued hereunder and the interest in the
Deposited Securities represented thereby. Each American Depositary Share shall
represent 20 shares of Stock and any and all other Deposited Securities received
by the Depositary and at the time held under this Deposit Agreement in respect
to such shares.
SECTION 1.09. The term "record holder" as applied to a Receipt shall
mean the holder in whose name such Receipt shall be recorded on the books of the
Depositary. The term "holder" as applied to a Receipt shall mean, if the Receipt
be not endorsed or accompanied by proper instruments of transfer, the record
holder thereof, or, if endorsed or accompanied by proper instruments of transfer
and delivered to any specified person, such person, or, if endorsed in blank or
accompanied by proper instruments of transfer in blank, the bearer thereof. The
terms "holder" and "Debentureholder" as applied to a coupon Debenture not
registered as to principal or a coupon appertaining to a Debenture shall mean
the then bearer thereof, and as applied to a fully registered Debenture or
coupon Debenture registered as to principal shall mean the registered holder
thereof.
SECTION 1.10. The term "dollars" shall mean United States dollars.
SECTION 1.11. The term "Securities Act of 1933" shall mean the Act
of May 27, 1933 (15 U.S. Code, Secs. 77a-77aa), as from time to time amended.
SECTION 1.12. The term "Debenture" shall mean one of any issue of
Debentures which have been designated in writing from time to time by Hitachi
and the Depositary as a "Debenture" for the purposes of this Deposit Agreement.
SECTION 1.13. The term "Conversion Agent" with respect to any
Debenture shall mean the agency or agencies maintained by Hitachi in accordance
with the related Indenture for the purpose of conversion of the Debentures.
SECTION 1.14. The term "Indenture" shall mean with respect to any
Debentures, the Indenture or similar instrument pursuant to which such
Debentures shall be issued, in each case as the same shall be amended from time
to time.
SECTION 1.15. The term "Trustee" shall mean with respect to any
Indenture the Trustee under such Indenture.
SECTION 1.16. The term "Registrar" shall mean any bank or trust
company having an office in the Borough of Manhattan, the City of New York,
which shall be appointed to register Receipts as herein provided.
SECTION 1.17. The term "Old Receipts" shall mean the American
Depositary Receipts evidencing depositary shares, each representing 40 shares of
Stock, issued before March 6, 1981.
SECTION 1.18. The term "yen" shall mean Japanese yen.
SECTION 1.19. The term "Depositary's Agent" shall mean an Agent
appointed by the Depositary as provided, and for the purposes specified, in
Section 7.06.
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF STOCK, DEPOSIT OF
DEBENTURES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders or printed and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided and may be issued in denominations of any number of
American Depositary Shares. Such Receipts shall be executed by the Depositary by
the manual signature of a duly authorized officer of the Depositary, provided
that such signature may be a facsimile if a Registrar for the Receipts shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless it shall have been executed by the Depositary by the manual signature of
a duly authorized officer or, if a Registrar shall have been appointed, by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall record on its transfer books each Receipt so signed and delivered as
hereinafter provided. Receipts bearing the facsimile signature of a duly
authorized officer of the Depositary who was at any time the proper officer of
the Depositary shall bind the Depositary, notwithstanding that such officer has
ceased to hold such office prior to signature of the Registrar and delivery of
such Receipts or did not hold such office at the date of such Receipts or of the
execution of this Deposit Agreement.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable laws or regulations or with the rules and regulations
of any securities exchange upon which Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise. If required by
any stock exchange to which application is made to list the Receipts, the
Company may authorize the exchange of Receipts for other Receipts printed and
engraved in the manner required by such stock exchange.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery of such Receipt with the same effect
as in the case of a negotiable instrument, provided, however, that until a
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.04, the Depositary, notwithstanding any notice to the contrary, may
treat the record holder thereof for the time being as the absolute owner thereof
(notwithstanding any notation of ownership or other writing therein made by
anyone) for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement, and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, (1) any holder thereof may deposit Stock under this Deposit Agreement
by delivering to the Custodian (or to the Depositary as hereinafter provided in
this Section 2.02) a certificate or certificates for the Stock to be deposited,
accompanied by a proper instrument of transfer, or endorsement, if so required
by Japanese law, in form satisfactory to the Custodian, together with
securities, property and cash, if any, equal in amount to the securities,
property and cash held at the time in respect of the Stock under the Deposit
Agreement, and all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and
together with a written order directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the number of American Depositary Shares to which such
person is entitled, and (2) additional Stock may be deposited under this Deposit
Agreement in connection with the exercise by the Depositary of rights to
subscribe for additional Stock made available by the Depositary pursuant to
Section 4.04 or in connection with a dividend in, or free distribution of, Stock
as provided in Section 4.03, by delivery to the Custodian of a certificate or
certificates for such Stock, or upon conversion of the Debentures as provided in
Section 2.03(a), by delivery to the Custodian for purposes of Section 2.03 of a
certificate or certificates for such Stock. The holder depositing Stock must
submit satisfactory evidence that such holder is not resident in Japan.
If required by the Depositary, Stock presented, for deposit by a
holder at any time, whether or not the transfer books of Hitachi are closed,
shall also be accompanied by (1) an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Custodian of any dividend or right to subscribe for additional Stock 'or to
receive other property, which any person in whose name the Stock, is or has been
recorded may thereafter receive upon or in respect of such deposited Stock, or
in lieu thereof such Agreement of indemnity or other Agreement as shall be
satisfactory to the Depositary, and (2), if the Stock is recorded in the name of
the person on whose behalf it is presented for deposit, a proxy entitling the
Depositary to vote such deposited Stock for any and all purposes until the Stock
is transferred and recorded on the books of Hitachi in the name of the
Depositary or its nominee or the Custodian or its nominee.
At the request and risk and expense of any holder of Stock, and for
the account of such holder, the Depositary may receive certificates of Stock to
be deposited, together with the other securities, properties and cash, if any,
and the other instruments herein specified, for the purpose of forwarding such
Stock certificates and other property to the Custodian for deposit hereunder.
Upon each delivery to the Custodian of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents and
property above specified, the Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to
Hitachi for transfer and recordation of the Stock being deposited in the name of
the Depositary or its nominee or the Custodian or its nominee.
Deposited Securities shall be held by the Depositary, or by the
Custodian, for the account and subject to the order of the Depositary, at the
designated office of the Custodian in Tokyo, Japan or at such other place or
places as the Depositary shall determine.
Upon Receipt by the Custodian of a certificate or certificates for
Stock to be deposited hereunder by the holder thereof, together with the other
documents and property required as above specified, the Custodian shall notify
the Depositary of such deposit and of the names of the person or persons to whom
or upon whose written order a Receipt or Receipts are deliverable in respect
thereof, the office of the Depositary or the Depositary's Agent, or any other
office, at which such Receipts are to be delivered and the number of American
Depositary Shares to be represented thereby. Such notification shall be made by
letter, or, at the request and risk and expense of the person making the
deposit, by cable, telex or facsimile transmission.
Upon receiving such notification from the Custodian, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust office in the Borough of Manhattan, the City of
New York, or such other office as the Depositary may designate, to or upon the
order of the person or persons named in the notice delivered to the Depositary,
a Receipt or Receipts, registered in the name or names and representing the
number of American Depositary Shares requested by such person or persons, but
only upon payment to the Depositary of the fee of the Depositary for the
execution and delivery of such Receipt or Receipts, and of all taxes and
governmental charges and fees payable in connection with such deposit and the
transfer of the deposited Stock; provided that, if such delivery is to be made
at a place other than the Corporate Trust office of the Depositary, such
delivery shall be at the risk and expense of the holder of the Stock.
SECTION 2.03. Deposit of Debentures; Execution and Delivery of
Receipts upon Conversion Thereof. (a) Upon the Deposit by any Debentureholder
with the Depositary or a Depositary's Agent of any Debenture or Debentures for
conversion of all or any portion thereof into Stock evidenced by Receipts in
accordance with the provisions of Article Three of the related Indenture,
together with the notice given by such Debentureholder pursuant to Section
3.02(a) of the related Indenture, the Depositary or its nominee shall, as soon
as practicable and in any event effective immediately prior to the close of
business, New York City time, on the date of such deposit and Receipt of such
notice, surrender or cause to be surrendered such Debenture or Debentures and a
copy of such notice to the Conversion Agent, together with written request from
the Depositary or its nominee to Hitachi stating that the Depositary or its
nominee elects to convert such Debenture or Debentures, or, if such notice of
the Debentureholder shall have specified that only a portion of any such
Debenture is to be converted, stating that the Depositary or its nominee elects
to convert such portion. Debentures so surrendered by the Depositary or its
nominee shall be in bearer form, or, in the case of registered Debentures
without coupons or coupon Debentures registered as to principal, shall be
accompanied by proper assignments thereof in blank for transfer. The conversion
of such Debentures shall be deemed to have been effected simultaneously with the
effective time in Tokyo (such time in Tokyo being the next calendar day) of the
surrender to the Depositary or a Depositary's Agent of such Debenture and the
notice referred to above, and at such time the Depositary or its nominee shall
be deemed to have become the holder of record of the greatest number of full
shares of Stock issuable upon such conversion (disregarding any retroactive
adjustment of the conversion price pursuant to Section 3.04 of the related
Indenture prior to the time such adjustment shall have become effective) after
disregarding fractions of such shares, as provided in Section 3.01 of the
related Indenture, and the person or persons specified in the notice given by
the Debentureholder pursuant to Section 3.02(a) of the related Indenture shall
be deemed to have become the holder or holders of record of the greatest number
of full American Depositary Shares issuable here-under (disregarding fractions
of such shares, which shall be paid as provided in Section 3.03 of the related
Indenture) in respect of such shares of Stock. As promptly as practicable after
the surrender of such Debentures for conversion to the Conversion Agent and
Receipt of a copy of such notice and the request referred to above but effective
as of the time in Tokyo referred to above, Hitachi shall record the Depositary
or its nominee as the owner of such Stock in its register of shareholders and
thereafter shall issue and deliver to the Custodian a certificate or
certificates for the number of shares of Stock registered in the name of the
Depositary or its nominee, and any other securities, property or cash, to which
the person named in such notice of the Debentureholder is entitled and, as
promptly as practicable after Receipt by the Custodian of such certificate or
certificates and such other securities, property, or cash, the Depositary shall
issue and deliver to the person or persons specified in such notice of the
Debentureholder, a Receipt or Receipts representing such American Depositary
Shares and such other securities, property or cash (or warrants or other
instruments evidencing the right to receive the same), if any, not represented
by such American Depositary Shares, but only upon Receipt by the Depositary of
payment (or of evidence satisfactory to the Depositary as to the payment) of any
tax payable in respect of any transfer involved in the issue and delivery of a
Receipt or Receipts in a name other than that of the Debentureholder. Such
delivery shall be made at the Corporate Trust office of the Depositary in New
York City or such other office as the Depositary may designate, all as specified
in the notice of the Debentureholder; provided that, if such delivery is to be
made at a place other than the Corporate Trust office of the Depositary, such
delivery shall be at the risk and expense of the Debentureholder.
In addition to the foregoing, in the case of a Debenture which is
converted subsequent to a record date referred to in Section 3.04 of the related
Indenture and prior to a retroactive adjustment in the conversion price as
provided therein, the Depositary or its nominee, immediately upon such
retroactive adjustment, shall be deemed to have become the holder of record of
the number of additional full shares of Stock equal to the excess of the
greatest number of full shares of Stock deliverable upon conversion of such
Debenture (giving effect to any retroactive adjustment referred to in the
preceding paragraph) over the number of shares previously delivered pursuant to
the preceding paragraph upon such conversion (after disregarding fractions of
such shares, as provided in Section 3.01 of the related Indenture), and the
person or persons specified in the notice given by the Debentureholder pursuant
to Section 3.02(a) of the related Indenture, as stated above, shall be deemed to
have become the holder or holders of record of the number of additional full
American Depositary Shares equal to the excess of the greatest number of full
American Depositary Shares issuable hereunder (disregarding fractions of such
shares, which shall be paid as provided in Section 3.03 of the related
Indenture) in respect of the aggregate number of shares of Stock delivered upon
conversion of such Debenture over the number of American Depositary Shares
previously delivered pursuant to the preceding paragraph upon such conversion.
As promptly as practicable thereafter, Hitachi shall issue and deliver to the
Custodian a certificate or certificates for such number of additional full
shares of Stock registered in the name of the Depositary or its nominee, and, as
promptly as practicable after Receipt by the Custodian of such certificate or
certificates, the Depositary shall issue and deliver to the person or persons
specified in such notice of the Debentureholder, a Receipt or Receipts
representing such additional full American Depositary Shares, but only upon
Receipt by the Depositary of payment (or of evidence satisfactory to the
Depositary as to the payment) of any tax payable in respect of any transfer
involved in the issue and delivery of a Receipt or Receipts in a name other than
that of the Debentureholder.
In the event that conversions of Debentures shall result in the
creation of a fractional interest in American Depositary Shares, the Depositary
shall hold such fractional interests for the account of the Conversion Agent and
from time to time in accordance with the instructions given by such Conversion
Agent shall either deliver the Deposited Securities represented by such
fractional interests to or upon the order of such Conversion Agent or issue a
Receipt or Receipts representing the full number of American Depositary Shares
resulting from the sum of the fractional interests then held by the Depositary
for the account of such Conversion Agent.
(b) Upon the deposit by any Debentureholder with the Depositary or a
Depositary's Agent of any Debenture or Debentures for conversion of all or any
portion thereof into Stock rather than Receipts in accordance with the
provisions of Article Three of the related Indenture, together with the notice
given by such Debentureholder pursuant to Section 3.02(b) of the related
Indenture, the Depositary or its nominee shall, as soon as practicable and in
any event effective immediately prior to the close of business, New York City
time, on the date of such deposit and Receipt of such notice, surrender or cause
to be surrendered such Debenture or Debentures and a copy of such notice to the
Conversion Agent, together with written request from the Depositary or its
nominee to Hitachi stating that the Depositary or its nominee elects to convert
such Debenture or Debentures or, if such Debentureholder shall have specified
that only a portion of any such Debenture is to be converted, stating that the
Depositary or its nominee elects to convert such portion. Debentures so
surrendered by the Depositary or its nominee shall be in bearer form or, in the
case of registered Debentures without coupons or coupon Debentures registered as
to principal, shall be accompanied by proper assignment thereof in blank for
transfer. The conversion of such Debenture shall be deemed to have been effected
simultaneously with the effective time in Tokyo (such time in Tokyo being the
next calendar day) of the surrender to the Depositary or Depositary's Agent of
such Debenture and the notice referred to above, and at such time the Depositary
or its nominee shall be deemed to have become the holder of record of the
greatest number of full shares of Stock issuable upon such conversion
(disregarding any retroactive adjustment of the conversion price pursuant to
Section 3.04 of the related Indenture prior to the time such adjustment shall
have become effective) after disregarding fractions of such shares, as provided
in Section 3.01 of the related Indenture. As promptly as practicable after the
surrender of such Debentures for conversion to the Conversion Agent and Receipt
of a copy of such notice and the request referred to above but effective as of
the time in Tokyo referred to above, Hitachi shall record the Depositary or its
nominee as the owner of such Stock in its register of shareholders and
thereafter shall issue and deliver to the Custodian a certificate or
certificates for such number of shares of Stock, and any other securities,
property or cash, to which the person specified in the notice given by the
Debentureholder pursuant to Section 3.02 (b) of the related Indenture is
entitled. As promptly as practicable after the Receipt by the Custodian of such
certificate or certificates and such other securities, property or cash, the
Depositary shall direct the Custodian to transfer and deliver the same at its
designated office in Tokyo (together with any other securities, property or
cash, issuable upon conversion) to the order of the person or persons specified
in the notice given by the Debentureholder pursuant to Section 3.02(b) of the
related Indenture. The Depositary shall furnish the Custodian with such
assignments or other documents as may be required by Hitachi or the Custodian to
effect such transfer.
In addition to the foregoing, in the case of a Debenture which is
converted subsequent to a record date referred to in Section 3.04 of the related
Indenture, and prior to a retroactive adjustment in the conversion price as
provided therein, the Depositary or its nominee, immediately upon such
retroactive adjustment, shall be deemed to have become the holder of record of
the number of additional full shares of Stock equal to the excess of the
greatest number of full shares of Stock deliverable upon conversion of such
Debenture (giving effect to any retroactive adjustment referred to in the
preceding paragraph) over the number of shares previously delivered pursuant to
the preceding paragraph upon such conversion (after disregarding fractions of
such shares, as provided in Section 3.01 of the related Indenture). As promptly
as practicable thereafter, Hitachi shall issue and deliver to the Custodian a
certificate or certificates for such number of additional full shares of Stock.
As promptly as practicable after the Receipt by the Custodian of such
certificate or certificates, the Depositary shall cause the Custodian to
transfer and deliver the same at its designated office in Tokyo to the order of
the person or persons specified in the notice of the Debentureholder given
pursuant to Section 3.02(b) of the related Indenture.
At the request, risk and expense of the Debentureholder depositing
the Debenture or Debentures for conversion, and for the account of such
Debentureholder, the Depositary shall direct the Custodian to forward such
certificate or certificates (together with any other securities, property or
cash issuable or deliverable upon conversion) to the Depositary for delivery at
its Corporate Trust office in the City of New York or the office of one of the
Depositary's Agents, as designated in the notice of the Debentureholder.
(c) As provided in Section 3.02(c) of the related Indenture in the
case of any registered Debenture without coupons which is to be converted in
part only, upon surrender of such Debenture by the Depositary for such partial
conversion Hitachi shall execute and the Trustee under the related Indenture
shall authenticate and deliver to the holder of the Debenture, at the expense of
Hitachi a new registered Debenture without coupons equal in principal amount to
the portion of such Debenture not so converted.
(d) In connection with the conversion of Debentures, the Depositary
will comply with the provisions of Article Three of the related Indenture
applicable to it to the same extent as if such provisions were set forth in full
herein.
(e) Except as otherwise provided in Section 2.03(a), Hitachi agrees
to pay, as provided in Section 3.08 of the related Indenture, all Japanese or
United States documentary, stamp, issue, transfer or similar taxes which may be
payable in respect of the deposit of the Debentures, or the issue or delivery of
shares of Stock upon conversion thereof, or the issue of a Receipt or Receipts
representing such shares.
SECTION 2.04. Transfer of Receipts; Combinations and Split-ups. The
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
make transfers on its transfer books from time to time of Receipts, upon any
surrender at the Corporate Trust office of the Depositary or at such other
offices, if any, as the Depositary may designate, of a Receipt by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by
proper instruments of transfer, and with all requisite New York and United
States of America tax stamps affixed and duly cancelled. Thereupon the
Depositary shall execute a new Receipt or Receipts, representing the same
aggregate number of American Depositary Shares, and deliver or cause to be
delivered the same to or upon the order of the person entitled thereto at the
office where such Receipt was surrendered.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for the number of American Depositary Shares
requested, representing the same aggregate number of American Depositary Shares
as the Receipt or Receipts surrendered.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender at the Corporate Trust office of the Depositary or at
such other offices, if any, as it may designate, of a Receipt for the purpose of
withdrawal of the Stock and other Deposited Securities represented thereby, and
upon payment of the fee of the Depositary for the cancellation of Receipts, and
subject to the terms and conditions of this Deposit Agreement, the holder of
such Receipt shall be entitled to delivery, to him or upon his order, of the
amount of Stock and any other Deposited Securities at the time represented by
such Receipt. Delivery of such Stock and other Deposited Securities may be made
by the delivery of certificates registered in the name of such holder or as
ordered by him or by the delivery of certificates properly endorsed or
accompanied by proper instruments of transfer. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and the holder thereof shall execute and deliver to the
Depositary a written order directing the Depositary to cause the Stock and any
other Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the designated office of the
Custodian in Tokyo, Japan, subject to Sections 2.06, 3.01 and 3.02, and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Stock and any other Deposited
Securities represented by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by such Receipt, or of any proceeds of sale of any
dividends, distribution or rights, which may at the time be held by the
Depositary. Such direction shall be given by letter or, at the risk and expense
of the holder, by cable, telex ,or facsimile transmission.
At the request and risk and expense of any holder so surrendering a.
Receipt, and for the account of such holder, the Depositary shall direct the
Custodian to forward a certificate or certificates and other proper documents of
title for the amount of Stock and any other Deposited Securities represented by
such Receipt to the Depositary for delivery at the Corporate Trust office of the
Depositary. Such direction shall be given by letter or, at the request and risk
and expense of such holder, by cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts. As a condition precedent to the execution and delivery,
transfer, split-up, combination or surrender of any Receipt, the Depositary, any
of the Depositary's Agents or the Custodian may require payment of a sum
sufficient to reimburse it for any tax and other governmental charge and any
stock transfer registration fee with respect thereto (including any such tax,
charge or fee with respect to Deposited Securities being deposited or
withdrawn), and payment of any applicable fees as herein provided, may require
the production of proof satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with such regulations, if any, as
the Depositary may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Debentures generally or of particular Debentures for
conversion in accordance with the provisions of Article Three of the related
Indenture may be refused, the delivery of Receipts against deposits of Stock
generally may be suspended, or the delivery of Receipts against the deposit of
particular Stock may be withheld, or the transfer of Receipts in particular
instances may be refused, or the transfer or surrender of outstanding Receipts
generally may be suspended, during any period when the transfer books of the
Depositary, or Hitachi are closed, or if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or Hitachi at any
time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of this Deposit
Agreement, or, except in the case of surrender of outstanding Receipts, for any
other reason. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement or for distribution to
the holders of Receipts, any Stock or other securities required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such securities, nor will the Depositary issue any
Receipts unless a registration statement is in effect as to such Receipts.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated or be destroyed or lost or stolen, the Depositary in its discretion
may execute and deliver a new Receipt of like tenor, in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed or lost or stolen Receipt, upon the
holder thereof filing with the Depositary evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt and the
authenticity thereof and of his ownership thereof and furnishing the Depositary
with indemnification satisfactory to the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09. Exchange of Old Receipts for Receipts Issued
Hereunder. As soon as practicable after the execution of this amended and
restated Deposit Agreement, the Depositary shall notify the record holders of
Old Receipts (i) of the execution of this amended and restated Deposit
Agreement, (ii) that the Old Receipts held by them may be exchanged for Receipts
issued hereunder, and (iii) such other information as the Depositary may deem
appropriate. Upon presentation to the Depositary of any such old Receipt by or
on behalf of the registered holder thereof together with a duly completed
transmittal form and such other endorsements or accompanied by proper
instruments of transfer as the Depositary may require, the Depositary shall
execute and deliver a Receipt representing the same number of shares of Stock as
are then represented by such Old Receipt. The Depositary may withhold the
distribution of dividends having a record date on or after the date of the
mailing of such notice to the holders of Old Receipts until such Old Receipts
have been exchanged for Receipts issued hereunder. No fee shall be charged to
the holders of Old Receipts for the exchange for Receipts, except that, in all
cases involving a change of ownership, any required transfer taxes or other such
charges shall be paid by such holders.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of citizenship or residence, or other
matters or other information, to execute such certificate and to make such
representations and warranties as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or transfer of any Receipt or the
distribution or sale of any dividend or other distribution or rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the holder of such
Receipt to the Depositary. The Depositary may refuse to effect any transfer of
such Receipt or any withdrawal of Deposited Securities represented thereby until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the holder thereof (after attempting by reasonable
means to notify the holder prior to such sale) any part or all of the Deposited
Securities represented by such Receipt, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge, the record holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranties on Deposit of Stock. Every person
depositing Stock pursuant to Section 2.02 shall be deemed thereby to represent
and warrant that such Stock and each certificate therefor are validly issued and
outstanding and fully paid and non-assessable, and that the person making such
deposit is not resident in Japan and is duly authorized so to do. Hitachi hereby
represents and warrants that the Stock issuable upon conversion of the
Debentures pursuant to the provisions of Article Three of the related Indenture
and Section 2.03 will be validly issued, fully paid and non-assessable. Such
representations and warranties shall survive the deposit of Stock or the
issuance of Stock upon conversion, as the case may be, and issuance of Receipts
in respect thereof.
ARTICLE IV.
THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Deposited
Securities, the Depositary shall, subject to the provisions of Section 4.05,
convert such dividend or distribution into dollars and shall distribute the
amount thus received to the record holders of Receipts entitled thereto, in
proportion to the number of American Depositary Shares held by them
respectively, provided, however, that in the event that any of the deposited
Stock is not entitled, by reason of its date of issuance or otherwise, to
receive the full amount of such cash distribution, the Depositary shall make an
appropriate adjustment in the amount distributed to the holders of the Receipts
issued in respect of such Stock, and provided further, that in case Hitachi or
the Depositary shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, the amount distributed on the Receipts issued in
respect of such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any record holders of a Receipt or Receipts a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to record holders of
Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash upon the Deposited Securities,
the Depositary shall (subject to the provisions of Section 4.03) cause the
Securities or property received by it to be distributed to the record holders of
Receipts entitled thereto, in proportion to the number of American Depositary
Shares held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the opinion
of the Depositary such proportionate distribution cannot be made among the
record holders of Receipts entitled thereto or if for any other reason
(including any requirement that Hitachi or the Depositary withhold an amount on
account of taxes) the Depositary deems such distribution not to be feasible as a
whole or in part, the Depositary may adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received, or
any part thereof. The net proceeds of any such sale, reduced by any amount
withheld on account of taxes with respect to such distribution, shall be
distributed by the Depositary to the record holders of Receipts entitled thereto
as in the case of a distribution received in cash.
SECTION 4.03. Distributions in Stock. If any distribution consists
of a dividend in, or free distribution of, Stock or other securities, the
Depositary may (in lieu of the distributions authorized by Section 4.02) in its
discretion with the approval of Hitachi distribute to the record holders of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the amount of Stock
or other securities received as such dividend or free distribution. 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 or other
securities constituting the aggregate of such fractions (or Receipts
representing such aggregate) and distribute the net proceeds of such sale, all
in the manner and subject to the conditions described in Section 4.02.
SECTION 4.04. Rights. Whenever Hitachi shall offer or cause to be
offered to the holders of any Deposited Securities in whose name such Securities
are recorded on the transfer books of Hitachi any rights to subscribe for
additional Stock or any rights of any other nature, such rights shall be made
available by the Depositary to the record holders of Receipts in each 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 of any rights the Depositary determines that it is not lawful or
not feasible to make such rights available to record holders of Receipts by the
issue of warrants or otherwise, or if instructed by record holders of Receipts
that such holders do not desire to exercise such rights, the Depositary may sell
such rights in its discretion at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as in the case of a distribution received in cash.
Hitachi will, in connection with any offer of such rights, make such
rights generally transferable or consent to the transfer thereof by foreign
investors not resident in Japan.
If registration under the Securities Act of 1933 of the Securities
to which any rights relate is required in order for Hitachi to offer such rights
to holders of Receipts and sell the Securities represented by such rights,
Hitachi agrees 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 in the opinion of
counsel for the Depositary exempt from registration under the provisions of said
Act.
SECTION 4.05. Conversion of Foreign Currency. Whenever the
Depositary shall receive or, hold foreign currency (i.e., a currency other than
dollars), received by way of dividends or other distributions or as the net
proceeds from the sale of Securities, property or rights, and if at the time the
foreign currency so received or held can in the judgment of the Depositary be
converted (at the official or other rate of exchange) on a reasonable basis into
dollars available to the Depositary in New York City, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into dollars, and such dollars shall be
distributed to the record holders of Receipts entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitled the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among holders on account of Japanese exchange
restrictions or otherwise. Payments in dollars in respect of any Receipt will be
made, subject to applicable laws and regulations, by check drawn on the
Depositary.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary is not convertible on a
reasonable basis into dollars available to it in New York City, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may, in its discretion, distribute
the foreign currency received by the Depositary (or an appropriate document
evidencing the right to receive such foreign currency) to the respective
accounts of the record holders of Receipts entitled thereto, or the Depositary
may in its discretion hold such foreign currency proceeds for the respective
accounts of such record holders and distribute to them appropriate warrants or
other instruments evidencing their rights to receive such foreign currency.
If any such conversion of foreign currency in whole or in part
cannot be effected as aforesaid for distribution to some record holders of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion and distribution in dollars to the extent permissible to the record
holders of Receipts entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance for the
account of and distribute appropriate warrants or other instruments evidencing
the right to receive such foreign currency to, the persons who were record
holders of Receipts entitled thereto with respect to whom such conversion could
not then be effected.
SECTION 4.06. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Stock or other Deposited Securities, the Depositary shall fix a
record date for the determination of the holders of 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. Subject to the provisions of Section 4.01 and of the last
paragraph of Section 4.05, the record holders of Receipts on such record date
shall be entitled to receive the amount distributable by the Depositary with
respect to such dividend or other distribution or such rights or the net
proceeds of sale thereof or to give instructions for the exercise of such voting
rights in proportion to the number of American Depositary Shares held by them
respectively. Hitachi shall give the Depositary at least 15 days' written notice
of the fixing of any such record date by it.
SECTION 4.07. Voting Rights. Upon Receipt of notice of any meeting
of holders of Stock or other Deposited Securities, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (a) such information as is contained in such notice of meeting,
and (b) a statement that the record holders of Receipts at the close of business
on a specified record date will be entitled, subject to any applicable
provisions of law and of the Articles of Incorporation of Hitachi, to instruct
the Depositary as to the exercise of the voting rights pertaining to the amount
of Stock or other Deposited Securities represented by their respective Receipts,
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 Hitachi. Upon the
written request of a record holder of a Receipt on such record date, received on
or before the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted
the amount of Stock or other deposited Securities represented by such Receipt in
accordance with the instructions set forth in such request. The above notice to
record holders of Receipts shall 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
Hitachi unless the Depositary 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 Hitachi 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. Hitachi hereby agrees to take all action which shall
at any time be deemed necessary by the Depositary in order to enable the
Depositary to vote or cause to be voted the amount of Stock or other Deposited
Securities represented by every Receipt, the record holder of which shall have
furnished a written request setting forth instructions to the Depositary as
aforesaid, in accordance with the instructions set forth in such request. 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.
SECTION 4.08. Changes and Reclassifications, Recapitalizations, etc.
Upon any change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting Hitachi or
to which it is a party, the Depositary may in its discretion with the approval
of Hitachi, and in such manner as the Depositary may deem equitable, treat any
securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities as new Deposited Securities
under this Deposit Agreement so that Receipts then outstanding shall thenceforth
represent the new Deposited Securities so received in exchange or on conversion.
In any such case the Depositary may in its discretion execute and deliver
additional Receipts as in the case of a Stock dividend, or may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities, or take such other action as may be
deemed by it appropriate in the circumstances.
SECTION 4.09. Reports. The Depositary shall make available for
inspection by holders of Receipts at its Corporate Trust office and furnish to
the Securities and Exchange Commission, Washington, D.C. (herein called the
Commission), any reports and communications received from Hitachi which are both
(a) received by the Depositary or its nominee or the Custodian or its nominee as
the holder of the Deposited Securities, and (b) made generally available to the
holders of any such Deposited Securities by Hitachi. The Depositary shall also
send to record holders of Receipts copies of reports which are furnished by
Hitachi pursuant to Section 5.06.
In addition, the Depositary shall furnish promptly to the Commission
copies of all annual or other periodic reports and other notices or
communications which the Depositary receives as holder of the Deposited
Securities from Hitachi and which Hitachi advises the Depositary are not
otherwise furnished to or filed with the Commission pursuant to any other
requirement of the Commission. The Depositary shall also furnish to the
commission semi-annually, beginning on or before six months after the effective
date of any registration statement filed with the Commission under the
Securities Act of 1933 relating to Receipts, the following information in
tabular form:
(1) Number of shares of Stock represented by Receipts issued
during period covered by the report; number of shares of Stock
represented by Receipts retired during the period covered by report;
total number of shares of Stock represented by Receipts remaining
outstanding; and
(2) The name of each dealer in the United States known to the
Depositary to have deposited shares of Stock against issuance of
Receipts during the period covered by the report.
Hitachi shall furnish the Depositary with the names of each dealer
known to Hitachi to have deposited Stock against issuance of Receipts, and the
Depositary shall include in its report the names of such dealer or dealers in
the United States which are furnished by Hitachi.
SECTION 4.10. Lists of Receipt Holders. Promptly upon request by
Hitachi the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
ARTICLE V.
THE DEPOSITARY, THE CUSTODIAN AND HITACHI.
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary; Registrar. Until termination of this Deposit Agreement in accordance
with its terms, the Depositary shall maintain in the Borough of Manhattan, the
City of New York, facilities for the execution and delivery, transfer and
surrender of Receipts in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books for the transfer of Receipts which
at all reasonable times shall be open for inspection by Hitachi and by the
record holders of Receipts, provided that such inspection by a record holder
shall not be for the purpose of communicating with holders of Receipts in the
interest of a business or object other than the business of Hitachi or a matter
related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder. If the Receipts shall be listed on any stock exchange in
New York, the Depositary shall, with the approval of Hitachi, appoint a
Registrar in the Borough of Manhattan, The City of New York, for registry of the
Receipts in accordance with any requirements of such exchange. Such Registrar
may be removed and a substitute registrar appointed by the Depositary upon the
request of or with the approval of Hitachi. If the Receipts are listed on other
stock exchanges, the Depositary will, at the request of Hitachi, arrange for
such facilities for the delivery and surrender of Receipts as may be required by
law or applicable stock exchange regulation.
SECTION 5.02. Non-performance or Delay in Performance by the
Depositary or Hitachi or the Custodian or any Depositary's Agent. Neither the
Depositary nor Hitachi nor the Custodian nor any Depositary's Agent shall incur
any liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or Japan or any other
country, or of any other action of any governmental authority thereof, or in the
case of the Depositary, the Custodian, or the Depositary's Agent by reason of
any provision, present or future, of the Articles of Incorporation of Hitachi,
or by reason of any act of God or war or other circumstance beyond its control,
the Depositary or any Depositary's Agent or Hitachi or the Custodian shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or Hitachi or the Custodian or any Depositary's Agent incur
any liability to any holder of a Receipt by reason of any non-performance or
delay, caused as aforesaid, in performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, Hitachi, the Custodian
and the Depositary's Agent. Neither the Depositary, nor Hitachi nor the
Custodian nor any Depositary's Agent assumes any obligation or shall be subject
to any liability under this Deposit Agreement to holders of Receipts other than
that each of them agrees to use its best judgment and good faith in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary nor Hitachi nor the Custodian nor any
Depositary's Agent shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts which in its opinion may involve it in
expense or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor Hitachi nor the Custodian nor any
Depositary's Agent 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. The Depositary or Hitachi or the
Custodian or any Depositary's Agent may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary, any Depositary's Agent, any Registrar and the
Custodian may own and deal in any class of securities of Hitachi and its
affiliates and in Receipts.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to Hitachi and
the Trustee under each Indenture, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by Hitachi upon written
notice of such removal delivered to the Depositary and to the Trustee under each
Indenture, effective upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided. In the event of the
resignation or removal of the Depositary and appointment of a successor
Depositary, Hitachi shall make arrangements satisfactory to the Depositary
whereby outstanding Receipts may be exchanged, without charge to the holders of
the outstanding Receipts, for new Receipts issued by the successor Depositary,
and if requested by the Depositary, Hitachi shall take such steps as may be
reasonably practicable under the circumstances to cause such outstanding
Receipts to be so exchanged.
In case at any time the Depositary acting hereunder shall resign or
be removed, Hitachi shall, within the 30 day period referred to in Section 6.02,
appoint a successor Depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, The City of New York. Every successor
Depositary shall execute and deliver to its predecessor and to Hitachi an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of Hitachi shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any such successor Depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged or
consolidated or resulting from the conversion of the Depositary shall be the
successor of the Depositary without the execution or filing of any document or
any further act.
SECTION 5.05. The Custodian. The Depositary has appointed The
Industrial Bank of Japan, Limited, Tokyo, Japan, and The Fuji Bank, Limited,
Tokyo, Japan, severally, as Custodians and agents of the Depositary for the
purposes of this Deposit Agreement. Each Custodian in acting hereunder shall be
subject at all times and in all respects to the directions of the Depositary and
shall be responsible solely to it. Either Custodian may resign and be discharged
from its duties hereunder by notice of such resignation delivered to the
Depositary at least 30 days prior to the date on which such resignation is to
become effective. If after such resignation there will be a Custodian remaining
hereunder, the resigning Custodian shall, upon demand of the Depositary, deliver
Deposited Securities held by it to such remaining Custodian and such remaining
Custodian shall thereupon assume the obligations and duties of such resigning
Custodian, including obligations or duties pursuant to Section 2.03 hereof, if
any. If after such resignation there will be no Custodian remaining hereunder,
the Depositary shall, promptly after receiving such notice, appoint a substitute
Custodian, which shall thereafter be the Custodian hereunder. Whenever the
Depositary in its discretion determines that it is in the best interest of the
holders of Receipts to do so, it may upon prior consultation with Hitachi
appoint a substitute Custodian, for either Custodian, which, together with any
other Custodian hereunder, shall thereafter be a Custodian hereunder, and upon
demand of the Depositary any previous Custodian shall deliver the Deposited
Securities held by it to such substitute Custodian. Each such substitute
Custodian shall deliver to the Depositary forthwith upon its appointment an
acceptance of such appointment satisfactory in form and substance to the
Depositary. Promptly after any such change the Depositary shall mail notice
thereof to all record holders of Receipts. If prior to such change two entities
were acting severally as Custodian such notice shall be mailed at Hitachi's
expense but if prior to such change only one entity was acting as Custodian such
notice shall be mailed without cost to Hitachi.
Upon the appointment of any successor Depositary hereunder, the
Custodian then acting hereunder stall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of the
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of the Custodian, execute and deliver to
the Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
Depositary.
SECTION 5.06. Notices and Reports. On or before the first date of
giving by Hitachi of notice by publication or otherwise, of any meeting of
holders of Stock or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, Hitachi agrees to transmit in an
expeditious manner to the Depositary a copy of the notice thereof in the form
given or to be given to holders of Stock or such other Deposited Securities.
The Depositary will, at Hitachi's expense, promptly obtain English
translations of such notices and any other reports and communications which are
made generally available by Hitachi to holders of its Stock, and arrange for the
mailing of copies of such translations to all record holders of Receipts. Such
English translations shall be in the form in which the notice or other report or
communication was made generally available by Hitachi to holders of its Stock,
provided however that financial statements contained therein may be revised by
Hitachi to conform to the requirements of Section 5.10; and, provided further,
that the text of any such notice or other report or communication may be revised
by Hitachi as appropriate to conform it to any such revision in the financial
statements contained therein. In addition, the Depositary will make available at
its Corporate Trust office in New York, at the expense of Hitachi, sufficient
copies of such notices and other reports and communications to supply record
holders of Receipts with such copies as they may reasonably request.
Notwithstanding the foregoing provisions of this paragraph, neither the
Depositary nor Hitachi shall be obligated to furnish to record holders of
Receipts any financial statements other than those referred to in Section 5.10.
In addition, if Hitachi shall offer or cause to be offered to the
holders of Stock any rights to subscribe for additional Stock or any rights of
any other nature, the Depositary will, if it is lawful and if time permits,
release to the public press and other financial publications in the United
States full information concerning such rights offering (including the way in
which such rights will be made available to holders of Receipts) and at the
expense of Hitachi publish a notice in at least one newspaper of general
circulation in the City of New York to be selected by the Depositary, stating
among other things the time within which the holders of Receipts may exercise
such rights and the method of exercise. The Depositary may, in its discretion,
refrain from publishing such a notice if, in its judgment, appropriate
information with respect to the rights offering has already appeared in the
public press in the City of New York.
SECTION 5.07. Issuance of Additional Stock, etc. In the event of any
issuance by Hitachi or any company controlled by Hitachi to the holders of
Deposited Securities of (1) additional Stock or other securities, (2) rights to
subscribe for Stock or other securities, (3) Securities convertible into Stock
or other securities, or (4) rights to subscribe for such Securities, Hitachi
will give the Depositary notice thereof at least 21 days prior to the date for
determining the persons entitled to any such additional Stock, other securities
or rights, as the case may be, and the Depositary shall thereupon promptly
obtain from counsel in the United States selected by the Depositary and
satisfactory to Hitachi a written opinion as to whether or not the circumstances
of such issue are such as to make it necessary for a registration statement
under the Securities Act of 1933 to be in effect prior to the delivery of any
Receipts to be issued in connection with such Securities or prior to the
issuance of such rights. If in the opinion of such counsel a registration
statement is required, such counsel shall furnish to the Depositary a written
opinion as to whether or not there is a registration statement in effect which
will cover such issuance of Securities or rights.
Hitachi agrees with the Depositary that neither Hitachi nor any
company controlled by Hitachi will at any time deposit hereunder, or arrange for
another to deposit hereunder, any Stock upon original issuance or upon a sale of
Stock previously issued and reacquired by Hitachi or acquired by any company
under its control, if such Stock is required to be registered under the
provisions of the Securities Act of 1933 and no registration statement is in
effect as to such Stock under such Act.
SECTION 5.08. Indemnification. Hitachi agrees to indemnify the
Depositary, the Custodian, any Depositary's Agent and any Registrar under this
Deposit Agreement against, and hold each of them harmless from, any liability
which may arise out of acts performed or omitted in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time (1) by either the
Depositary, the Custodian, any Depositary's Agent or such Registrar, except for
any liability arising out of negligence or bad faith, or (2) by Hitachi or any
of its agents.
SECTION 5.09. Charges and Expenses. Hitachi agrees to pay all
charges and expenses of the Depositary as shown in Exhibit B hereto, and those
of any Registrar under this Deposit Agreement, other than (1) the fees of the
Depositary for the execution and delivery of Receipts pursuant to Section
2.02(1) and the surrender of Receipts pursuant to Section 2.05, (2) taxes and
other governmental charges (except as provided in Section 2.03(e), (3) such
registration fees as may from time to time be in effect for the registration of
Stock transfers generally on the Stock register of Hitachi and accordingly
applicable to transfers of Stock to the name of the Depositary or its nominee or
the Custodian or its nominee on the making of deposits hereunder pursuant to
Section 2.02 (1), and (4) such cable, telex or facsimile transmission and
delivery expenses as are expressly provided in this Deposit Agreement to be at
the expense of persons depositing Stock or holders of Receipts or Debentures.
All charges and expenses referred to in clauses (1) through (4) in the preceding
sentence shall be paid by the persons depositing the Stock or other securities
or the holders of Receipts as the case may be. Any other charges and expenses of
the Depositary hereunder (including fees and expenses of counsel) will be paid
upon consultation and agreement between the Depositary and Hitachi as to the
amount and nature of such charges and expenses. Charges of the Depositary
hereunder may at any time and from time to time be changed by agreement between
Hitachi and the Depositary. The Depositary shall present to Hitachi its
statement for such charges and expenses payable by Hitachi no more frequently
than once each month.
Hitachi will pay the reasonable fees and expenses of the Custodian,
except certain fees in connection with deposits and withdrawals of shares by
other than Hitachi, which fees will be paid by the Depositary.
SECTION 5.10. Financial Statements. Hitachi agrees to furnish to the
Depositary, and the Depositary will, at Hitachi's expense, arrange to mail to
all record holders of Receipts, (1) promptly after the end of the first
six-month accounting period in each fiscal year, a balance sheet and statements
of income and retained earnings (which need not be audited) for Hitachi as at
the end of and for such six-month period, all in reasonable detail and certified
by the principal financial or accounting officer of Hitachi, and (2) promptly
after the end of each fiscal year, a balance sheet and statements of income and
retained earnings for Hitachi as at the end of and for such year, all in
reasonable detail and certified by independent public accountants. All such
interim and year-end statements shall be in the English language, shall be
expressed in both yen and in dollars translated from yen at a rate of exchange
stated therein and shall be prepared in accordance with accounting principles
generally accepted in the United States except to the extent exceptions from
such accounting principles are permitted in periodic reports filed by Hitachi
with the Securities and Exchange Commission and, so long as Hitachi has active
subsidiaries, shall be on a consolidated basis to the extent that the accounts
of Hitachi and its subsidiaries are consolidated in its annual reports to the
Securities and Exchange Commission.
SECTION 5.11. Withholding of Japanese Tax. Hitachi shall to the
extent required by Japanese laws and regulations withhold the tax on any
dividend or distribution made by it to its stockholders and shall advise the
Custodian of the applicable withholding rate or rates and the total amount of
yen so withheld for each country. Hitachi will remit to the appropriate
governmental agency all sums withheld and will make all necessary reports and
filings.
ARTICLE VI.
AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment. Subject to Section 6.07 of each Indenture,
the form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by Agreement between Hitachi and the
Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose any fees or charges or have the effect of
increasing any fees or charges (other than taxes and other governmental charges
or the fees of the Depositary for the execution and delivery of certain Receipts
and the cancellation of Receipts which are payable by the holders thereof as
provided in Section 5.09) or which shall otherwise prejudice any substantial
existing right 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 Receipts.
Every holder of an outstanding 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 of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby.
SECTION 6.02. Termination. Subject to Section 6.07 of each
indenture, at any time after March 1, 1986 or at any time when the number of
shares of Stock represented by outstanding Receipts shall be less than 5,000,000
shares, the Depositary shall, if Hitachi so requests, terminate this Deposit
Agreement by mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination.
The Depositary may likewise terminate this Deposit Agreement if at
any time 30 days shall have expired after the Depositary shall have delivered to
Hitachi a written notice of its election to resign and a successor Depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04.
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 termination for
non-appointment of a successor depositary) or perform any further acts under
this Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividend 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. At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
the net proceeds of any such sale, together with any other cash then held by it
hereunder, without liability for interest, for the pro rata benefit of the
holders of Receipts which have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement, except to account to holders of Receipts for such net
proceeds and other cash. Upon the termination of this Deposit Agreement, Hitachi
shall be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary under Section 5.08 and 5.09 hereof.
ARTICLE VII.
MISCELLANEOUS.
SECTION 7.01. Agreement May Be Executed in Counterparts; Filing of
Copies. This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary, each Depositary's Agent and the Custodian and
shall be open to inspection at the Corporate Trust office of the Depositary, the
principal office of any Depositary's Agent and the designated office of the
Custodian by any holder of a Receipt during business hours.
SECTION 7.02. Agreement for Exclusive Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties hereto and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Effect of Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no wise be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders of Receipts are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance thereof.
SECTION 7.05. Notices. Any and all notices to be given to Hitachi
shall be deemed to have been duly given if personally delivered or sent by mail
or by cable, telex or facsimile transmission confirmed by letter, addressed to
Xxxxxxx, Xxx., Xxx Xxxxxxxxxx Xxxxxxxx, 0-0, Xxxxxxxxxx 1-chome, Xxxxxxx-xx,
Xxxxx 000, Xxxxx, Xxxxxxxxx: Secretary's Office, or any other place to which
Hitachi may have transferred its main office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail or by cable, telex
or facsimile transmission confirmed by letter, addressed to Citibank, N.A., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention : ADR unit, or any other place
where the Depositary may then have its Corporate Trust office.
Any and all notices to be given to any record holder of a Receipt
shall be deemed to have been duly given if personally delivered or sent by mail
or by cable, telex or facsimile transmission confirmed by letter, addressed to
such record holder at the address of such record holder as it appears on the
transfer books of the Depositary, or, if such holder shall have filed with the
Depositary a written request that notices intended for such holder be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or by cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission message) is Deposited, postage prepaid, in a
post-office letter box. The Depositary or Hitachi may, however, act upon any
cable, telex or facsimile transmission message received by it from the other or
from any record holder of a Receipt, notwithstanding that such cable, telex or
facsimile transmission message shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06. Appointment of Depositary's Agents. The Depositary
may, with the consent of Hitachi, which consent shall not be unreasonably
withheld, from time to time appoint Depositary's Agents for the purpose of
conversion of Debentures under the related Indenture and may at any time appoint
additional Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary may from time to time appoint other Agents
for the purposes of the Deposit Agreement. The Depositary will notify Hitachi of
any such action. The Depositary has initially appointed as Depositary's Agents
the principal offices in London and Zurich of Citibank, N.A. and the principal
Luxembourg office of Citibank (Luxembourg) S.A. and Hitachi hereby consents to
such appointments. Each Depositary's Agent shall perform such duties and
exercise such rights of the Depositary consistent with this Deposit Agreement as
the Depositary shall specify in writing to such Depositary's Agent and each
Depositary's Agent shall be subject to the direction and control of the
Depositary in respect of matters arising under this Deposit Agreement.
SECTION 7.07. Closing Stock Transfer Books. Anything herein
contained to the contrary notwithstanding, Hitachi 'agrees that, so long as any
of the Debentures shall remain outstanding, it will not, at any time, close its
Stock transfer books or take any other action designed to prevent the transfer
of its shares generally if such action will impair or diminish the ability of a
holder of a Debenture legally to convert such Debenture into valid shares of
Common Stock at all times during the period of such closure or while such other
action is effective.
SECTION 7.08. Appointment by Hitachi of Agent for Service of
Process. By the execution and delivery of this Deposit Agreement, Hitachi
irrevocably designates and appoints the Depositary, in the United States of
America, as Hitachi's authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Receipts of this Deposit
Agreement which may be instituted in any State or Federal court in The City of
New York, submits to the jurisdiction of any such court in any such suit or
proceeding, and agrees that service of process upon said Depositary, and written
notice of said service to Hitachi (mailed or delivered to its president at its
principal office in Tokyo, Japan), shall be deemed in every respect effective
service of process upon Hitachi in any such suit or proceeding. Hitachi further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of said Depositary in full force and effect so long
as any of the Receipts shall be outstanding.
By the execution and delivery of this Deposit Agreement, the
Depositary agrees to act as Hitachi's authorized agent upon which process may be
served in any such suit or proceeding and to give written notice of said service
to Hitachi (mailed or delivered to its President at Hitachi's principal
executive office in Tokyo, Japan), provided, however, that in the absence of bad
faith or gross negligence on its part the Depositary shall not be responsible
for failure to give any such notice.
SECTION 7.09. Amendment and Restatement. This Deposit Agreement
amends and restates as of March 6, 1981, the Deposit Agreement dated as of July
9, 1963, as amended by amendments dated May 11, 1971, May 10, 1973 and January
27, 1976, among Hitachi, First National City Bank (now Citibank, N.A.), as
Depositary, and the holders of American Depositary Receipts. Except to the
extent referred to in Section 2.09, this amendment and restatement shall not
prejudice any substantial existing rights of holders of American Depositary
Receipts issued pursuant to this Deposit Agreement as heretofore in effect. Any
such right, other than as modified pursuant to Section 2.09, shall survive the
execution, delivery and effectiveness of this amendment and restatement.
SECTION 7.10. Headings. The headings of articles and Sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Agreement or to have any bearing upon the meaning of interpretation
of any provision contained herein or in the Receipts.
SECTION 7.11. Law of New York to Govern. This Deposit Agreement and
the Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the laws of the State of New
York. 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 the
duties and obligations of Hitachi in respect of such holders, as such, shall be
governed by the laws of Japan.
IN WITNESS WHEREOF, HITACHI, LTD. and CITIBANK, N.A. have duly
executed this Agreement as of the day and year first above set forth and all
holders of Receipts shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
HITACHI, LTD.
By XXXXX XXXXXXXX
Duly Authorized Attorney
CITIBANK, N.A.
By XXXXXX X. XXXX
Vice President
[Corporate Seal]
Attest:
XXXXXXX XXXXX
Trust Officer
Exhibit A
American Depositary Receipt
For Common Stock of
HITACHI, LTD.
(KABUSHIKI KAISHA HITACHI SELSAKUSHO)
(Incorporated under the laws of Japan)
No. ............ American Depositary Shares (Each such
share representing 20 Shares in
registered form of Common Stock each
having a par value of 50 yen)
(1) Citibank, N.A., a national banking association incorporated and
existing under the laws of the United States of America, having its Corporate
Trust office in New York, N.Y., as Depositary (herein called the Depositary),
hereby certifies that
is the owner of American Depositary Shares,
representing Shares in registered form of the Common Stock, par value 50 yen per
share (herein called Stock), of Hitachi, Ltd. (Kabushiki Kaisha Hitachi
Seisakusho), incorporated under the laws of Japan (herein called Hitachi). Each
such American Depositary Share represents 20 shares of Stock and any and all
other securities, property and cash received by the Depositary or the Custodian
in respect of such Stock and held under the Deposit Agreement (herein
collectively called Deposited Securities). The Deposited Securities are
Deposited at the designated office in Tokyo, Japan, of The Industrial Bank of
Japan, Limited or The Fuji Bank, Limited' (herein severally called the
Custodian), as Agents of the Depositary.
(2) The Deposit Agreement. This American Depositary Receipt is one
of a continuing issue provided by Hitachi for the convenience of its
non-resident shareholders generally and for the convenience of the holders of
its Debentures (as defined in the Deposit Agreement referred to below) (such
issue of American Depositary Receipts being herein called the Receipts), all
evidencing rights of similar tenor with respect to Stock (including Stock issued
upon conversion of Debentures Deposited with the Depositary for such conversion
pursuant to any Indenture relating to the Debentures) Deposited under, and all
issued and to be issued upon the terms and conditions set forth in, the Deposit
Agreement dated as of July 9, 1963 as amended and restated as of March 6, 1981
(herein called the Deposit Agreement), by and between Hitachi, the Depositary,
and all holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
holders of the Receipts and the rights and duties of the Depositary in respect
of the Stock (including Stock issued upon conversion of Debentures) and
Deposited Securities. Copies of the Deposit Agreement are on file at said office
of the Depositary, the designated office of the Custodian in Tokyo, Japan and
the office of each Depositary's Agent. 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 of the Deposit Agreement,
to which reference is hereby made.
(3) Withdrawal of Deposited Securities. Upon surrender of this
Receipt at the Corporate Trust office, such office presently being located at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, of the Depositary in New York and
payment of the fee of the Depositary provided in paragraph (10) of this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the holder
hereof is entitled to delivery to him or upon his order of the amount of the
Stock and any other Deposited Securities at the time represented hereby.
Delivery of such Stock or other Deposited Securities may be made by the delivery
of certificates registered in the name of the holder hereof or as ordered by
him, or by the delivery of certificates properly endorsed or accompanied by
proper instruments of transfer. Such delivery will be made without unreasonable
delay and, at the option of the holder hereof, either at the designated office
of the Custodian in Tokyo, Japan or at the Corporate Trust office of the
Depositary, provided that the forwarding of Stock certificates or other
Deposited Securities for such delivery in the City of New York shall be at the
risk and expense of the holder hereof.
(4) Transfers, Split-ups, Combinations of Receipts. This Receipt is
transferable on the books of the Depositary by the holder hereof in person or by
duly authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer. This Receipt may be split into
other Receipts or may be combined with other Receipts into one Receipt,
representing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
(5) Conditions to Execution and Delivery, Transfer, etc. of Receipts
or Distribution or Sale of Dividends or Rights. As a condition precedent to the
execution and delivery, transfer, split-up, combination or surrender of any
Receipt, the Depositary or the Custodian may require payment of a sum sufficient
to reimburse it for any tax or other governmental charge and any Stock transfer
registration fee with respect thereto (including any such tax, charge or fee
with respect to Stock or other securities being Deposited or withdrawn) and
payment of any applicable fees as provided in paragraph (10) of this Receipt,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement. Any person presenting Stock for Deposit or
any holder of a Receipt may be required from time to time to file such proof of
citizenship or residence or other matters or other information, and to execute
such certificates and to make such representations and warranties as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery or transfer of any Receipt or the distribution or sale of any dividend
or other distribution or rights or of the proceeds thereof or the delivery of
any Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
(6) Suspension of Delivery, Transfer, etc. The delivery of Receipts
against Deposits of Stock generally may be suspended, or the delivery of
Receipts against the Deposit of particular Stock may be withheld, or the
transfer of Receipts in particular instances may be refused, or the transfer or
surrender of outstanding Receipts generally may be suspended, during any period
when the transfer books of the Depositary or Hitachi are closed, if any such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agents or Hitachi at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, or under any
provision of the Deposit Agreement, or, except in the case of surrender of
outstanding Receipts, for any other reason. Without limitation of the foregoing,
the Depositary will not knowingly accept for Deposit under the Deposit Agreement
or for distribution to the holders of Receipts, any Stock or other securities
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Securities nor will the
Depositary issue any Receipts unless a registration statement is in effect as to
such Receipts.
(7) Liability of Holder for Taxes. Any tax or other governmental
charge payable 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 any dividends
or other distributions, or may sell for the account of the holder hereof (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 other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the record holder hereof remaining liable
for any deficiency.
(8) Warranties as to Stock, etc. Every person Depositing Stock under
the Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are validly issued and outstanding and fully
paid and non-assessable, and that the person making such Deposit is not resident
in Japan and is duly authorized so to do. Hitachi has represented and warranted
that the Stock issuable upon conversion of Debentures pursuant to the related
Indenture and the Deposit Agreement will be validly issued, fully paid and
non-assessable. Such representations and warranties shall survive the Deposit of
Stock or the issuance of Stock on conversion, as the case may be, and issuance
of Receipts in respect thereof.
(9) Amendment of Deposit Agreement. Subject to the requirement for
the consent in certain events of holders of outstanding Debentures, all as
provided in the related Indenture, the form of the Receipts and any provisions
of the Deposit Agreement may at any time and from time to time be amended by
Agreement between Hitachi and the Depositary in any respect which they may deem
necessary or desirable. Any amendment which shall impose any fees or charges or
have the effect of increasing any fees or charges other than as provided in
paragraph (10) of this Receipt or which shall otherwise prejudice any
substantial existing right of holders of Receipts shall not become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the record holders of outstanding
Receipts. Every holder of an outstanding 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.
(10) Charges of Depositary. The Depositary will charge the party to
whom Receipts are delivered against Deposits of Stock (other than Stock issued
upon conversion of Debentures and other than as set forth below), and the party
surrendering Receipts for delivery of Stock or other Deposited Securities, as
follows:
Market price per Rate per each 100
American Depositary Share American Depositary Shares
on delivery or surrender or fraction thereof
delivered or surrendered
Below $5.00 ...................... $3.00
$5.00-$10.00 ...................... $4.00
Over $10.00 ...................... $5.00
Hitachi will pay the charges of the Depositary for Receipts delivered against
Deposits made in connection with the exercise by the Depositary of rights to
subscribe for additional Stock made available by the Depositary to holders of
Receipts or in connection with a dividend in, or free distribution of, Stock.
Hitachi will pay other charges of the Depositary (subject in certain cases to
consultation and Agreement between Hitachi and the Depositary), with the
exception of taxes and other governmental charges, Stock transfer registration
fees on Deposits or transfers of Stock, and such cable, telex, 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
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery hereof with the same effect as in the case
of a negotiable instrument, provided, however, that until this Receipt shall be
transferred on the books of the Depositary as provided in the Deposit Agreement,
the Depositary, notwithstanding any notice to the contrary, may treat the record
holder hereof for the time being as the absolute owner hereof (notwithstanding
any notation of ownership or other writing hereon made by anyone) for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(12) Dividends and distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Deposited
Securities, the Depositary will, if any yen amounts may in its judgment be
converted (at the official or other rate of exchange) on a reasonable basis into
United States dollars available to the Depositary in New York City and subject
to the provisions of the Deposit Agreement, convert such dividend or
distribution into dollars and will distribute the amount thus received to the
record holders of Receipts entitled thereto, in proportion to the number of
American Depositary Shares held by them respectively, provided, however, that if
any underlying shares of Stock are not entitled, by reason of their date of
issue or otherwise, to receive the full amount of such cash distribution, the
Depositary will make an appropriate adjustment in the amount distributed, and
provided further that the amount distributed will be reduced by any amounts
required to be withheld by Hitachi or the Depositary on account of taxes in
respect of Deposited Securities represented by such Receipts. If the Depositary
shall determine that yen amounts may not be converted on a reasonable basis into
dollars available to the Depositary in New York City, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable time as
determined by the Depositary, the Depositary may distribute the yen amounts
received by the Depositary to the respective accounts of the record holders of
Receipts entitled thereto, or the Depositary may in its discretion hold such yen
amounts for the respective accounts of such record holders and distribute to
them appropriate warrants or other instruments evidencing their rights to
receive such yen amounts. Whenever the Depositary shall receive any distribution
other than cash upon the Deposited Securities, the Depositary shall cause the
Securities or property received by it to be distributed to the record holders of
Receipts entitled thereto, in proportion to the number of American Depositary
Shares held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the opinion
of the Depositary such proportionate distribution cannot be made among the
record holders of Receipts entitled thereto, or if for any other reason
(including any requirement that Hitachi or the Depositary withhold an amount on
account of taxes) the Depositary deems such distribution not to be feasible in
whole or in part, the Depositary may adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the Securities or property thus received, or
any part thereof. The net proceeds of any such sale, reduced by any amount
withheld on account of taxes with respect to such distribution, shall be
distributed by the Depositary to the record holders of Receipts entitled thereto
as in the case of a distribution received in cash. If any distribution consists
of a dividend in, or free distribution of, Stock or other securities, the
Depositary may in its discretion with the approval of Hitachi distribute to the
record holders of outstanding Receipts entitled thereto, proportionately as
aforesaid, additional Receipts for an aggregate number of American Depositary
Shares representing the amount of Stock or other securities received as such
dividend or free distribution. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary may sell the amount
of Stock or other securities constituting the aggregate of such fractions (or
Receipts representing such aggregate) and distribute the net proceeds to the
record holders of Receipts entitled thereto as in the case of a distribution
received an cash.
(13) Rights. Whenever Hitachi shall offer or cause to be offered to
the holders of any Deposited Securities in whose name such Securities are
recorded on the transfer books of Hitachi any rights to subscribe for additional
Stock or any rights of any other nature, such rights will be made available by
the Depositary to the record holders of 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 of any rights the Depositary determines that it is not lawful or
not feasible to make such rights available to record holders of Receipts by the
issue of warrants or otherwise, or if instructed by record holders of Receipts
that such holders do not desire to exercise such rights, the Depositary may sell
such rights in its discretion at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
will be distributed by the Depositary to the record holders of Receipts entitled
thereto as in the case of a distribution received in cash.
If registration under the Securities Act of 1933 of the Securities
to which any rights relate is required in order for Hitachi to offer such rights
to holders of Receipts or sell the Securities represented by such rights,
Hitachi 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 will the Depositary make available to the holders of
Receipts any rights 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 for the Depositary from registration under the provisions of
the Act.
(14) Record Dates. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Stock or other Deposited Securities, the Depositary will fix a record
date for the determination of the holders of Receipts who shall be entitled,
subject to the provisions of the Deposit Agreement, to receive such dividend,
distribution, rights, or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting.
(15) Voting Deposited Securities. Upon Receipt of notice of any
meeting of holders of Stock or other Deposited Securities, the Depositary will,
as soon as practicable thereafter, mail to the record holders of Receipts a
notice which will contain (a) such information as is contained in such notice of
meeting, and (b) a statement that the record holders of Receipts at the close of
business on a specified record date will be entitled, subject to any applicable
provisions of law and of the Articles of Incorporation of Hitachi, to instruct
the Depositary as to the exercise of voting rights pertaining to the amount of
Stock or other Deposited Securities represented by their respective Receipts,
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 Hitachi. Upon the
written request of a record holder of a Receipt on such record date, received on
or before the date established by the Depositary for such purpose, the
Depositary will endeavor in so far as practicable to vote or cause to be voted
the amount of Stock or other Deposited Securities represented by such Receipt in
accordance with the instructions set forth in such request. The above notice to
record holders of 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 the discretionary proxy to a person designated
by Hitachi unless the Depositary 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 Hitachi
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.
(16) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities under the Deposit Agreement or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting Hitachi or
to which it is a party, the Depositary may in its discretion with the approval
of Hitachi, and in such manner as the Depositary may deem equitable, treat any
securities which shall be received by the Depositary in exchange for or on
conversion of or in respect of Deposited Securities as new Deposited Securities
under the Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new Deposited Securities so received in exchange or on conversion.
In any such case the Depositary may in its discretion execute and deliver
additional Receipts as in the case of a Stock dividend, or may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities, or take such other action as may be
deemed by it appropriate in the circumstances.
(17) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by holders of Receipts at its Corporate Trust office in
New York and will furnish to the Securities and Exchange Commission, Washington,
D.C. any reports and communications received from Hitachi which are both (a)
received by the Depositary or its nominee or the Custodian or its nominee as the
holder of the Deposited Securities, and (b) made generally available to the
holders of such Deposited Securities by Hitachi. The Depositary will also send
to record holders of Receipts copies of certain other reports and financial
statements to the extent provided in the Deposit Agreement when furnished by
Hitachi. The Depositary will keep books for the transfer of Receipts which at
all reasonable times will be open for inspection by Hitachi and the record
holders of Receipts, provided that such inspection by a record holder shall not
be for the purpose of communicating with holders of Receipts in the interest of
a business or object other than the business of Hitachi or a matter related to
the Deposit Agreement or the Receipts.
(18) Liability of the Depositary, Hitachi, the Custodian and the
Depositary's Agents. Neither the Depositary nor Hitachi nor the Custodian nor
any Depositary's Agents shall incur any liability to any holder of this Receipt,
if by reason of any provision of any present or future law or regulation of the
United States or Japan or any other country, or of any other action of any
governmental authority thereof, or in the case of the Depositary, the Custodian
or any Depositary's Agent by reason of any provision, present or future, of the
Articles of Incorporation of Hitachi, or by reason of any act of God or war or
other circumstance beyond its control, the Depositary or Hitachi or the
Custodian or the Depositary's Agent shall be prevented or forbidden from doing
or performing any act or thing which by the terms of the Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary or Hitachi or the
Custodian or any Depositary's Agent incur any liability to any holder hereof by
reason of any non-performance or delay, caused as aforesaid, or in performance
of any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement. Neither the
Depositary nor Hitachi nor the Custodian nor any Depositary's Agent assumes any
obligation or shall be subject to any liability under the Deposit Agreement to
holders of Receipts other than that each of them agrees to use its best judgment
and good faith in the performance of such duties as are specifically set forth
in the Deposit Agreement. Neither the Depositary nor Hitachi nor the Custodian
nor any Depositary's Agent 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
expanse or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required. Neither the Depositary
nor Hitachi nor the Custodian nor any Depositary's Agent 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. The
Depositary or Hitachi or the Custodian or any Depositary's Agent may rely and
shall be protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Depositary will not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities or
for the manner or effect of any such vote made, as long as any such action or
non-action is in good faith. Hitachi will indemnify the Depositary, any
Depositary's Agent, any Registrar and the Custodian against, and hold each of
them harmless from, any liability which may arise out of acts performed or
omitted in accordance with the provisions of the Deposit Agreement and of the
Receipts, (1) by either the Depositary, any Depositary's Agent, any Registrar or
the Custodian except for any liability arising out of the negligence or bad
faith or (2) by Hitachi or any of its Agents. The Depositary, any Depositary's
Agent, any Registrar and the Custodian may own and deal in any class of
Securities of Hitachi and its affiliates and in Receipts. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision hereof
or of the Deposit Agreement.
(19) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to Hitachi and
the Trustee for the Debentures, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be removed by
Hitachi by written notice of such removal delivered to the Depositary and the
Trustee for the Debentures, effective upon the appointment of a successor
Depositary and its acceptance of such appointment as provided in the Deposit
Agreement. In case of such resignation or removal, Hitachi has agreed, within 30
days after the delivery of the notice thereof, to appoint a successor
Depositary. The Depositary may at any time appoint a substitute Custodian as
provided in the Deposit Agreement.
(20) Termination of Deposit Agreement. Except as otherwise provided
in each Indenture, at any time after March 1, 1986 or at any time when the
number of shares of Stock represented by outstanding Receipts shall be less than
5,000,000 Shares, the Depositary shall, if Hitachi so requests, terminate the
Deposit Agreement by mailing notice of such termination to the record holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement if at any time 30 days shall have expired after the Depositary shall
have delivered to Hitachi a written notice of its election to resign and a
successor Depositary shall not have been appointed and accepted its appointment
as provided in the Deposit Agreement. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
transfer of Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of termination
for non-appointment of a successor Depositary) or perform any further acts under
the Deposit Agreement, except that the Depositary will continue to collect
dividends and other distributions pertaining to Deposited Securities, will sell
rights as provided in the Deposit Agreement and will continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary. 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 and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it under the Deposit Agreement, without
liability for interest, for the pro rata benefit of the holders of Receipts
which have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account to holders of Receipts for such net proceeds and other cash.
Upon the termination of the Deposit Agreement, Hitachi shall be discharged from
all obligations thereunder except for its obligations to the Depositary, the
Custodian, any Depositary's Agent and the Registrar with respect to
indemnification and the Depositary's charges and expenses.
(21) Depositary's Agents. The Depositary may, with the consent of
Hitachi, from time to time appoint Depositary's Agents for the purpose of the
Deposit Agreement. The Depositary may vary or terminate the appointment of such
Depositary's Agent. The Depositary may from time to time appoint other Agents
for purposes of the Deposit Agreement.
(22) Governing Law. This Receipt shall be interpreted and all rights
hereunder and provisions hereof shall be governed by the laws of the State of
New York. 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 the
duties and obligations of Hitachi in respect of such holders, as such, shall be
governed by the laws of Japan.
Dated: ...............................
Citibank, N.A.
Depositary
By ...............................
Vice president
Countersigned :
.......................................
Authorized signature
The following abbreviations, when used in the inscription on the
face of this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT--.......................Custodian.................
(Cust) (Minor)
under Uniform Gifts to Minors Act ............................
(State)
Additional abbreviations may also be used though not in the above
list.
Please Insert Social Security or Other
Identifying Number of Assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto .................................................................
.................................................................................
.................................................................................
......................... the within American Depositary Receipt and all rights
and interests represented thereby, and hereby irrevocably constitutes and
appoints .......................................................................
attorney, to transfer the same on the books of the within named Depositary, with
full power of substitution in the premises.
Dated ........................
Signature ........................
Signature Guaranteed:
Note: The Signature to any endorsement hereon must correspond with the
name as written upon the face of the Receipt, in every particular, without
alteration or enlargement, or any change whatever.
LEGEND TO BE INCLUDED ON FACE OF
AMERICAN DEPOSITARY RECEIPT
Subscription Rights: Under current Japanese practice offerings of rights
to subscribe to additional underlying Securities are made in substantial
amounts, with a subscription price substantially below the current market price
of the security. Hitachi has agreed in the Deposit Agreement that it will file a
registration statement covering all such rights offerings under the Securities
Act of 1933, as amended, for the purpose of making possible the distribution of
rights by the Depositary to the holders of Receipts in the United States and the
exercise of the rights by such holders. Should such distribution not be
possible, the Depositary intends to endeavor to dispose of the rights for the
benefit of holders of Receipts as provided in the Deposit Agreement. Any
disposal of rights may substantially dilute the equity of holders of Receipts.
Hitachi has in the past made such offerings. Additional information may be
obtained from the Depositary. The attention of holders is especially directed to
the provisions of paragraph (13) of this Receipt.
EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By whom paid
(1) Receiving Deposits and (per 100 American Party to whom
issuing Receipts Depositary Shares or Receipts are
fraction thereof) issued.
market price per American
(2) Delivering Deposited Shares Depositary Share on issue Party
against surrendered Receipts and surrender of Receipts surrendering
below $5, fee $3; Receipts
market price $5 to $10,
fee $4; market price
over $10, fee $5
(3) Issuing Receipts upon $1 per 100 Depositary Hitachi
conversion of Debentures Shares or fraction
thereof
(4) Receiving Deposits of 1/10 of 1% of the Hitachi
Debentures under Section principal amount of
2.03 Debentures surrendered
for conversion
Other charges of the Depositary plus out-of-pocket expenses such as ADR
printing, translation, stationery, postage, insurance, cables, etc., are to be
paid by Hitachi in accordance with Agreements in writing entered into between
the Depositary and Hitachi from time to time.
Hitachi will pay the reasonable fees and expenses of the Custodian, except
certain fees in connection with Deposits and withdrawals of Stock by others than
Hitachi, which fees will be paid by the Depositary.