EXHIBIT 1.1
NIPPON TELEGRAPH AND TELEPHONE CORPORATION
Global Offering of 1,000,000 Shares of Common Stock
(Par Value (Yen)50,000 per Share)
U.S. Underwriting Agreement
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THIS U.S. UNDERWRITING AGREEMENT (the "Underwriting Agreement") is
made on December __, 1998 by and among THE MINISTER OF FINANCE OF JAPAN,
representing the Government of Japan (the "Selling Shareholder"), NIPPON
TELEGRAPH AND TELEPHONE CORPORATION, a limited liability joint stock company
incorporated under the laws of Japan (the "Company") and XXXXXXX, XXXXX & CO.,
WARBURG DILLON READ LLC and DAIWA SECURITIES AMERICA INC., as representatives
(the "Representatives") of the several Underwriters named in Schedule I hereto
(the "Underwriters").
The terms defined in this Agreement are also set forth in Schedule II
attached hereto.
The Selling Shareholder proposes, subject to the terms and conditions
stated herein, to sell to the Underwriters an aggregate of ............ shares
(the "U.S. Shares") of common stock, par value (Yen)50,000 per share ("NTT
Common Stock"), of the Company, for sale in the United States and Canada (the
"U.S. Offering").
The Underwriters propose to purchase the U.S. Shares from the Selling
Shareholder and offer the U.S. Shares, in the form of U.S. Shares or American
Depositary Shares ("ADSs"), in the U.S. Offering. The ADSs are to be issued
pursuant to a deposit agreement (the "Deposit Agreement"), dated as of July 8,
1994, among the Company, Xxxxxx Guaranty Trust Company of New York, as
depositary (the "Depositary"), and holders from time to time of the American
Depositary Receipts (the "ADRs") issued by the Depositary and evidencing the
ADSs. Each ADS will initially represent the right to receive 1/200th of a share
of NTT Common Stock deposited pursuant to the Deposit Agreement. The ADSs
representing U.S. Shares are hereinafter called the "U.S. ADSs".
It is understood by all the parties that the Company and the Selling
Shareholder are concurrently entering into (i) an agreement (the "International
Underwriting Agreement") providing for the sale by the Selling Shareholder of a
total of ............ shares of NTT Common Stock (the "International Shares"),
through arrangements with certain underwriters outside the United States, Canada
and Japan (the "International Underwriters"), for whom UBS AG, acting through
its division Warburg Dillon Read, ("Warburg Dillon Read"), Daiwa Europe Limited
and Xxxxxxx Xxxxx International are acting as lead managers (the "International
Offering"), and (ii) an agreement (the "Japanese Underwriting Agreement")
providing for the sale by the Selling Shareholder of a total of
.................... shares of NTT Common Stock (the "Japanese Shares"), through
arrangements with certain underwriters in Japan (the "Japanese Underwriters"),
for whom Daiwa Securities Co. Ltd., Xxxxxxx Sachs (Japan) Ltd. and Warburg
Dillon Read (Japan) Limited are acting as lead
managers (the "Japanese Offering"). The U.S. Shares, the International Shares
and the Japanese Shares are herein collectively called the "Offered Shares". The
U.S. Offering, the International Offering and the Japanese Offering are herein
collectively called the "Global Offering". Anything herein or therein to the
contrary notwithstanding, the closing under this Agreement is expressly
conditional on the closings under the Global Underwriting Agreements (defined
below).
The Underwriters hereunder, the International Underwriters and the
Japanese Underwriters are simultaneously entering into an Agreement among
Underwriting Syndicates (the "Agreement among Syndicates"), which provides,
among other things, that Daiwa Securities Co. Ltd., Xxxxxxx Xxxxx International
and Warburg Dillon Read shall act as the Joint Global Coordinators (the "Joint
Global Coordinators") for the Global Offering and for the transfer of Offered
Shares, if needed, among the U.S. and International syndicates.
Except as the context may otherwise require, the International
Underwriters and the Japanese Underwriters are referred to herein collectively
as the "Global Underwriters" and the International Underwriting Agreement and
the Japanese Underwriting Agreement are referred to herein collectively as the
"Global Underwriting Agreements".
Three forms of prospectus are to be used in connection with the
offering and sale of Offered Shares contemplated by the foregoing, one relating
to the U.S. Offering (the "U.S. Prospectus"), another relating to the
International Offering (the "International Prospectus") and another relating to
the Japanese Offering (the "Japanese Prospectus"). The International Prospectus
will be identical to the U.S. Prospectus except for certain substitute pages.
References hereinafter to the Offered Shares shall include Offered Shares to be
represented by ADSs.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A Registration Statement (as defined below) in respect of the Offered
Shares has been filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "Securities
Act"); the Registration Statement and any post-effective amendment thereto,
each in the form previously delivered to the Representatives, have been
declared effective by the Commission in such form (copies, including all
documents incorporated by reference in the prospectus contained therein but
excluding the exhibits thereto were also provided to the Representatives
for each of the other Underwriters); no other document (including exhibits)
relating to the Registration Statement or document incorporated by
reference in the Registration Statement has previously been filed or
transmitted for filing with the Commission; and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission.
For the purposes of this Agreement, "Registration Statement" shall
mean the Registration Statement on Form F-3 (File No. 333-67603) and
Amendment No. 1 thereto including all exhibits thereto and including (i)
the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities Act in accordance
with Section 6(a) hereof and deemed by virtue of Rule 430A under the
Securities Act to be part of the Registration Statement at the time it was
declared effective and (ii) the documents incorporated by reference in the
prospectus contained in the Registration Statement at the time such part of
the Registration Statement became effective, each as amended at the time
such part of the Registration Statement became
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effective. Any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement.
Any preliminary prospectus included in the Registration Statement or
filed with the Commission pursuant to Rule 424(a) under the Securities Act,
including any version thereof prepared in connection with the International
Offering, is hereinafter called a "Preliminary Prospectus". The
prospectus, in the form first filed pursuant to Rule 424(b) under the
Securities Act, including the version thereof prepared in connection with
the International Offering, is hereinafter called the "Prospectus". Any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form F-3 under the Securities Act, as of the
date of such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or the Prospectus, as
the case may be, under the Exchange Act, and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the case may be.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act; and each Preliminary Prospectus, at the
time of filing did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use
therein;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable; none of the documents
incorporated by reference contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
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(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Securities Act and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives
expressly for use therein;
(v) A registration statement on Form F-6 (File No. 33-81562) in respect
of the ADSs has been filed with the Commission; such registration statement
in the form previously delivered to the Representatives and, excluding
exhibits, to the Representatives for each of the other Underwriters, has
been declared effective by the Commission in such form; no other document
with respect to such registration statement has previously been filed with
the Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (the various parts of
such registration statement, including all exhibits thereto, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "ADS Registration Statement"); and
the ADS Registration Statement when it became effective conformed, and any
further amendments thereto will conform, in all material respects to the
requirements of the Securities Act, and did not, as of the applicable
effective date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vi) Neither the Company nor its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
that would be material to the Company and its subsidiaries, taken as a
whole; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been (A) any
change in the capital stock of the Company, (B) any increase in excess of
(Yen)400 billion in the long-term debt of the Company on a consolidated
basis, or (C) any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(vii) The Company has been duly incorporated and is validly existing as
a joint stock corporation under the laws of Japan, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and has been duly qualified for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no liability or
disability by reason of the failure to be so qualified in any such
jurisdiction, except where the failure to do so would not individually or
in the aggregate have a material adverse effect on the Company and its
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subsidiaries taken as a whole; and each subsidiary of the Company named in
the Prospectus has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation;
(viii) The Company has an authorized capital stock as set forth in the
Prospectus, and all of the issued shares of NTT Common Stock have been duly
and validly authorized and issued, and are fully paid and non-assessable
and conform to the description of the NTT Common Stock contained in the
Prospectus; all of the issued shares of capital stock of each subsidiary of
the Company named in the Prospectus have been duly and validly authorized
and issued, are fully paid and non-assessable and (except as set forth in
the Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens (other than statutory preferences granted to the holders
of bonds issued by the Company provided under Article 8 of the Nippon
Telegraph and Telephone Corporation Law), encumbrances, equities or claims;
all of the NTT Common Stock (including the Offered Shares) have been or
will be duly listed and admitted for trading on the Tokyo Stock Exchange
(except for the NTT Common Stock which will continue to be held by the
Selling Shareholder) and the London Stock Exchange; the ADSs have been duly
listed and admitted for trading on the New York Stock Exchange; the holders
of outstanding shares of NTT Common Stock are not entitled pursuant to any
action taken by the Company or pursuant to Japanese law to preemptive or
other rights to acquire the Offered Shares; there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or
options to purchase from the Company, or obligations of the Company to
issue, the NTT Common Stock or any other class of capital stock of the
Company; the Offered Shares may be freely deposited with the Depositary
against issuance of ADRs evidencing ADSs (except as described in the
Prospectus under "Description of the Shares -- Exchange Controls and Other
Limitations Affecting Security Holders"); the Offered Shares are freely
transferable by the Selling Shareholder to or for the account of the
several Underwriters and are freely transferable by the several
Underwriters to (to the extent described in the Prospectus) the initial
purchasers thereof; and there are no restrictions on subsequent transfers
of the Offered Shares or ADSs under the laws of Japan and of the United
States (except as described in the Prospectus under "Description of the
Shares -- Exchange Controls and Other Limitations Affecting Security
Holders");
(ix) The Offered Shares have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description of the NTT
Common Stock contained in the Prospectus; the Selling Shareholder is the
sole registered holder of title to the Offered Shares on the register of
shareholders of the Company; and holders of the Offered Shares will be
entitled to all the rights of shareholders conferred by the Articles of
Incorporation of the Company and the Commercial Code of Japan;
(x) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution and
delivery by the Depositary, constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and except as the enforceability thereof is subject to the
application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without
limitation, (i) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (ii) concepts of
materiality, reasonableness, good faith and fair dealing;
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(xi) Except as described in the Prospectus, all dividends and other
distributions declared and payable on NTT Common Stock (subject to the
approval of the Minister of Posts and Telecommunications) (including
payments to the Depositary in respect of ADSs) may under the current laws
and regulations of Japan be paid in Japanese yen that may be converted into
foreign currency that may be freely transferred out of Japan, and all such
dividends and other distributions will not be subject to withholding or
other taxes under the laws and regulations of Japan and are otherwise free
and clear of any other tax, withholding or deduction in Japan and without
the necessity of obtaining any consent, approval, authorization, order,
registration, clearance or qualification (hereinafter referred to as
"Governmental Authorizations") of or with any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or
any of their properties or any stock exchange authorities or self-
regulatory organizations (hereinafter referred to as a "Governmental
Agency") in Japan;
(xii) The deposit by the Underwriters of the Offered Shares being
deposited with the Depositary against issuance of the ADRs evidencing the
ADSs and the compliance by the Company with all of the provisions of this
Agreement, the Global Underwriting Agreements and the Deposit Agreement and
the consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject, nor
will such action result in any violation by the Company of the provisions
of the Articles of Incorporation, Regulations of the Board of Directors or
Share Handling Regulations of the Company or any statute or any order, rule
or regulation of any Governmental Agency having jurisdiction over the
Company or any of its properties;
(xiii) No Governmental Authorization of any Governmental Agency is
required for the deposit of the Offered Shares being deposited with the
Depositary against issuance of ADRs evidencing the ADSs to be delivered or
the consummation of the transactions contemplated by this Agreement and the
Global Underwriting Agreements, except (A) the registration under the
Securities Act of the Offered Shares and the ADSs, (B) the Diet's approval
of the relevant national budget which authorizes the sale of the Offered
Shares, (C) such other Governmental Authorizations as have been duly
obtained and are in full force and effect and copies of which have been
furnished to the Representatives and (D) such Governmental Authorizations
as may be required under securities or Blue Sky laws of any state of the
United States or any laws of jurisdictions outside Japan and the United
States in connection with the purchase and distribution of the Offered
Shares and ADSs by or for the account of the Underwriters and the
International Underwriters;
(xiv) Each of this Agreement and the Global Underwriting Agreements has
been duly authorized executed and delivered by the Company and under the
laws of Japan, constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(xv) Each of this Agreement, the Global Underwriting Agreements, the
Deposit Agreement and the ADRs evidencing the ADSs is in proper form under
the laws of Japan to be enforced against the Company and the certificates
for the Offered Shares are in
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proper form to be legal and valid under the laws of Japan, and to ensure
the legality, validity, enforceability or admissibility into evidence in
Japan of this Agreement, the Global Underwriting Agreements, the Deposit
Agreement, the ADRs or the Offered Shares, as the case may be, it is not
necessary that this Agreement, the Global Underwriting Agreements, the
Deposit Agreement, the ADRs or the Offered Shares or any other documents be
filed or recorded with any court or other authority in Japan or that any
Japanese stamp or similar tax be paid by the Underwriters or the Global
Underwriters or purchasers therefrom on or in respect of this Agreement,
the International Underwriting Agreement, the Deposit Agreement, the ADRs
or the Offered Shares or any other document to be furnished hereunder or
thereunder;
(xvi) The Company is not in violation of its Articles of Incorporation,
Regulations of the Board of Directors and Share Handling Regulations, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(xvii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters or the Global Underwriters in Japan in
connection with (A) the deposit with the Depositary of Offered Shares
against the issuance of ADRs evidencing ADSs, (B) the sale and delivery of
the Offered Shares and ADSs to or for the respective accounts of the
Underwriters or the International Underwriters, (C) the execution and
delivery of this Agreement or the Global Underwriting Agreements or (D) the
sale and delivery by the Underwriters or the International Underwriters of
the Offered Shares and ADSs to the initial purchasers thereof;
(xviii) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Shares and ADSs;
(xix) The statements set forth in the Prospectus under the captions
"Description of the Shares" and "Description of American Depositary
Receipts", insofar as they purport to constitute a summary of the terms of
the NTT Common Stock and the ADSs, respectively, and under the caption
"Certain Tax Considerations", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(xx) The Company and its subsidiaries named in the Prospectus have valid
title to all real property and valid title to all personal property owned
by them, in each case free and clear of all liens (other than statutory
preferences granted to the holders of bonds issued by the Company provided
under Article 8 of the Nippon Telegraph and Telephone Corporation Law),
encumbrances and defects except such as are described in the Prospectus or
such as do not and would not, in the aggregate, have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and any real property and buildings held
under lease by the Company and such subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as do not and
would not, in the aggregate, have a material adverse effect on the current
or future consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole;
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(xxi) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(xxii) The Company is not and, after giving effect to the offering and
sale of the Offered Shares, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(xxiii) The Company and each of its subsidiaries named in the Prospectus
have all licenses, franchises, permits, authorizations, approvals and
orders and other concessions of and from all Governmental Agencies that are
necessary to own or lease their other properties and conduct their
businesses as described in the Prospectus with such exceptions as
individually or in the aggregate would not have a material adverse effect
on the financial position, shareholders' equity or results of operations of
the Company or such subsidiaries;
(xxiv) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the Year 2000
Problem. As a result of such review, the Company has no reason to believe,
and does not believe, that the Year 2000 Problem will have a material
adverse effect on the financial position, shareholders' equity or results
of operations of the Company and its subsidiaries or result in any material
loss or interference with the Company's business or operations. The "Year
2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of
data or in the operation of mechanical or electrical systems of any kind
will not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000; and
(xxv) Price Waterhouse, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act.
(b) The Selling Shareholder represents and warrants to, and agrees with,
each of the Underwriters and the Company that:
(i) The sale and delivery of the Offered Shares by the Selling
Shareholder hereunder and under the Global Underwriting Agreements and the
compliance by the Selling Shareholder with all of the provisions of, and
the performance by the Selling Shareholder of his obligations under, this
Agreement and the Global Underwriting Agreements and the consummation by
the Selling Shareholder of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any agreement or
instrument to which the Selling Shareholder is a party or by which the
Selling Shareholder is bound, or to which any of the property or assets of
the Selling Shareholder are subject, nor will such action result in any
violation by the Selling Shareholder of the provisions of any statute or
any order, rule or regulation of any Governmental Agency in Japan;
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(ii) Each of this Agreement and the Global Underwriting Agreements has
been duly authorized, executed and delivered by the Selling Shareholder
and, under the laws of Japan, constitutes a valid and legally binding
obligation of the Selling Shareholder, enforceable in accordance with its
terms;
(iii) The Selling Shareholder has, and immediately prior to the Time of
Delivery (as defined in Section 4 hereof) the Selling Shareholder will
have, good and valid title to the Offered Shares to be sold by the Selling
Shareholder hereunder and under the Global Underwriting Agreements, free
and clear of all liens, encumbrances, equities or claims; and upon delivery
of the Offered Shares and payment therefor pursuant to this Agreement and
the Global Underwriting Agreements, good and valid title to the Offered
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the Underwriters, or the Global Underwriters, as the case may be;
(iv) The Selling Shareholder has full right, power and authority to enter
into this Agreement and the Global Underwriting Agreements and to sell,
assign, transfer and deliver the Offered Shares to be sold by the Selling
Shareholder hereunder and under the International Underwriting Agreement;
(v) No Governmental Authorization of or with any Governmental Agency in
Japan is required to be obtained by the Selling Shareholder for the sale of
the Offered Shares by the Selling Shareholder hereunder or under the Global
Underwriting Agreements, the compliance by the Selling Shareholder with all
of the provisions of, and the performance by the Selling Shareholder of his
obligations under, this Agreement and the Global Underwriting Agreements,
the consummation by the Selling Shareholder of the transactions
contemplated by this Agreement and the Global Underwriting Agreements, or
for the execution and delivery by the Selling Shareholder of this Agreement
to be duly and validly authorized, except (A) the Diet's approval of the
relevant national budget which authorizes the sale of the Offered Shares
and (B) such Governmental Authorizations as have been duly obtained and are
in full force and effect and copies of which have been furnished to the
Representatives;
(vi) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters or the Global Underwriters in Japan in
connection with (A) the sale and delivery by the Selling Shareholder of the
Offered Shares to or for the respective accounts of the Underwriters or the
International Underwriters, (B) the execution and delivery of this
Agreement or the Global Underwriting Agreements or (C) the sale and
delivery by the Underwriters or the International Underwriters of the
Offered Shares and the ADSs to the initial purchasers thereof;
(vii) The statements set forth in the Prospectus with respect to the
number of Offered Shares to be offered and sold by the Selling Shareholder
and with respect to the number of shares of NTT Common Stock previously
sold and to be sold in the future by the Selling Shareholder are accurate;
and
(viii) The Selling Shareholder has not taken, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Offered Shares or ADSs in the Offering.
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2. Subject to the terms and conditions herein set forth, the Selling
Shareholder agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Shareholder, at a purchase price per U.S. Share of (Yen)................... the
number of U.S. Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder, the
Selling Shareholder will pay to Xxxxxxx, Xxxxx & Co., for the accounts of the
several Underwriters, an amount equal to (Yen)................. per U.S. Share
(the "Underwriting Commission") for the U.S. Shares to be delivered by the
Selling Shareholder hereunder at the Time of Delivery. The foregoing amount
shall be payable by the Selling Shareholder if and only if the U.S. Shares are
purchased by the Underwriters as provided herein.
3. Upon the authorization by the Representatives of the release of the
U.S. Shares and the U.S. ADSs, the several Underwriters propose to offer the
U.S. Shares and the U.S. ADSs for sale upon the terms and conditions set forth
in the U.S. Prospectus. Each Underwriter hereby represents and warrants to, and
agrees with, the Company and the Selling Shareholder that it and each of its
affiliates will not offer, sell or deliver any of the U.S. Shares or distribute
the Prospectus or any other offering material in any jurisdiction (including
Canada) outside the United States except in compliance with the applicable laws
thereof and in the manner contemplated by the Prospectus, including taking
whatever action is required to permit its purchase and resale of the U.S. Shares
in such jurisdiction at its own expense; provided, however, that with respect to
the Prospectus, the Underwriters make no representations as to compliance with
applicable laws with respect to the content of, including any misstatements or
omissions in, the Prospectus.
4. (a) Xxxxxxx, Sachs & Co. or its agent shall, on behalf of the
Underwriters (and the Underwriters hereby severally agree to cause such payment
to be made), make payment to the Selling Shareholder by using the payment form
supplied by the Selling Shareholder no later than 3:00 p.m., Tokyo time, on the
Tokyo business day immediately preceding the Delivery Date, or such other time
and date as the Joint Global Coordinators and the Selling Shareholder may agree
upon in writing (such time and date of payment for the U.S. Shares being herein
called the "Time of Payment"), of the purchase price therefor by settlement upon
delivery of a check drawn upon The Bank of Japan in same day funds; provided,
however, that the Selling Shareholder shall as soon as practicable return the
foregoing payment to Xxxxxxx, Xxxxx & Co. or its agent if the U.S. Shares are
not delivered at the Time of Delivery because of any provision of Section 8.
(b) Subject to confirmation of receipt of the purchase price referred to in
(a) above, the Selling Shareholder will make available for inspection by
Xxxxxxx, Sachs & Co. or its agent on behalf of the Underwriters the certificates
representing the U.S. Shares no later than 8:15 a.m., Tokyo time, on the
Delivery Date. The time and date of delivery of the U.S. Shares shall be 9:00
a.m., Tokyo time, on December ...., 1998 or such other time and date as the
Joint Global Coordinators and the Selling Shareholder may agree upon in writing.
Such time and date of delivery of the U.S. Shares are herein called the "Time of
Delivery" and such date of delivery is herein called the "Delivery Date". No
later than 9:00 a.m., Tokyo time, on the Delivery Date, the Selling Shareholder
shall deliver or cause to be delivered to Xxxxxxx, Xxxxx & Co. or its agent in
Japan acting as agent on behalf of the Underwriters for deposit with the Japan
Securities Depository Center ("JASDEC") system, certificates representing the
U.S. Shares. Goldman,
10
Sachs & Co., or its agent shall issue a receipt for the U.S. Shares in a form
prescribed by the Selling Shareholder.
(c) A meeting will be held at the offices of Xxxxxxxx & Xxxxxxxx, Tokio
Kaijo Building Shinkan, 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000,
Xxxxx (the "Closing Location") at or around 3:00 p.m., Tokyo time, two Tokyo
business days prior to the Delivery Date (or such other time and date as the
Joint Global Coordinators, the Company and the Selling Shareholder may agree
upon), at which meeting the final drafts of the documents to be delivered
pursuant to the next sentence will be available for review by the parties
hereto. The documents to be delivered at the Time of Payment by or on behalf of
the parties hereto pursuant to Section 8 hereof and any additional documents
requested by the Underwriters pursuant to Sections 8(l) and 8(m) hereof,
including the receipts for the U.S. Shares and the payment therefor, will be
delivered at the Closing Location at or prior to the Time of Payment, and the
U.S. Shares and the U.S. ADSs will be delivered as specified in Sections 4(b)
and 5(b), at the Time of Delivery and at or prior to the ADS Time of Delivery,
respectively. For the purposes of this Xxxxxxx 0, "Xxxxx business day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in Tokyo are generally authorized or obligated by law
or executive order to close.
(d) The Selling Shareholder shall, subject to receipt of invoice therefor,
pay to Xxxxxxx, Xxxxx & Co. or its agent, for the accounts of the several
Underwriters, into an account specified by Xxxxxxx, Sachs & Co. or its agent
the Underwriting Commission referred to in Section 2 above by the Tokyo business
day immediately succeeding the Delivery Date. However, the Selling Shareholder
shall make efforts to pay the Underwriting Commission as soon as practicable
after the Time of Delivery.
5. (a) With respect to all or a portion of the U.S. Shares to be
purchased from the Selling Shareholder and sold hereunder at the Time of
Delivery, Xxxxxxx Xxxxx International on behalf of the several Underwriters, may
elect to receive U.S. Shares delivered and paid for hereunder in the form of
U.S. ADSs. Notice of such election shall be given by Xxxxxxx Sachs
International to the Company no later than 5:00 p.m. (Tokyo time) on the Tokyo
business day prior to the Delivery Date (the "Notification Time").
(b) In the event and to the extent that the Underwriters shall have elected
to receive U.S. ADSs in accordance with Section 5(a), such U.S. ADSs shall be
registered in the name of Cede & Co., as nominee for The Depository Trust
Company ("DTC") on the books of the Depositary and delivered by or on behalf of
the Depositary to the DTC participant account of Xxxxxxx Xxxxx International,
for the account of the Underwriters, upon delivery for deposit with The Bank of
Tokyo-Mitsubishi, Ltd., as custodian under the Deposit Agreement, of
certificates representing the U.S. Shares deposited with the custodian for the
account of the Depositary against the issuance of the U.S. ADSs in accordance
with the terms of the Deposit Agreement. Subject to the satisfaction of the
terms of the Deposit Agreement and to receipt of payment therefor pursuant to
Section 4(a), the Company shall cause the U.S. ADSs to be delivered by the
Depositary to the purchasers thereof no later than 9:30 a.m., New York City
time, on December __, 1998 (the "ADS Time of Delivery").
6. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by
11
Rule 430A(a)(3) under the Securities Act; to make no further amendment or
any supplement to the Registration Statement or Prospectus prior to the
Time of Delivery which shall be reasonably disapproved by the
Representatives promptly after reasonable notice thereof; to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Representatives copies thereof; to file
promptly all reports required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Offered Shares or ADSs; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of the
Offered Shares or ADSs for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Offered Shares or
ADSs for offering and sale under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Offered
Shares or ADSs, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Offered Shares or ADSs and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
in connection with sales of the Offered Shares or ADS at any time nine
12
months or more after the time of the issue of the Prospectus, upon such
Underwriters' request but not at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as it may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act; provided that any failure to furnish the Underwriters
with copies of the Prospectus in New York City prior to 10:00 a.m., New
York City time, on the Business Day next succeeding the date of this
Agreement as a direct result of an event beyond the control of the Company
shall not result in a breach of this Clause (iii);
(iv) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act (including, at the option of the Company, Rule 158);
(v) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (which
will be dated the date of this Underwriting Agreement), not to directly or
indirectly offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder and under the Global Underwriting Agreements, any
securities of the Company that are substantially similar to the Offered
Shares or ADSs, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, NTT Common Stock or any such substantially similar securities
(other than pursuant to employee stock option plans or other agreements
(copies of which have been previously provided to the Underwriters and
their counsel) existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of the Joint Global
Coordinators;
(vi) To make available to its shareholders as soon as practicable after
the end of each fiscal year an annual report (in English) (including a
balance sheet and statements of income, shareholders' equity and cash flows
of the Company and its consolidated subsidiaries certified by independent
public accountants and prepared in conformity with generally accepted
accounting principles in the United States ("U.S. GAAP")) and, as soon as
practicable after the end of each of the first six months of each fiscal
year, consolidated summary financial information of the Company and its
subsidiaries for such interim period in reasonable detail prepared in
accordance with U.S. GAAP;
(vii) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the
sale or resale of the Offered Shares and the ADSs;
(viii) To use its best efforts to obtain and maintain the listing of the
NTT Common Stock on the Tokyo Stock Exchange and the London Stock Exchange
and the listing of the ADSs on the New York Stock Exchange; and
(ix) To cooperate in procuring from the Depositary at the ADS Time of
Delivery certificates satisfactory to the Representatives evidencing the
deposit with the Depositary of the Offered Shares being so deposited
against issuance of ADRs evidencing the ADSs to be delivered, and the
execution, countersignature (if applicable),
13
issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement.
(b) The Selling Shareholder agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (which
will be dated the date of this Underwriting Agreement), not to directly or
indirectly offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder and under the Global Underwriting Agreements, any
securities of the Company that are substantially similar to the Offered
Shares or ADSs, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, NTT Common Stock or any such substantially similar securities
(other than to the Company for repurchase and cancellation or to an entity
controlled by the Government of Japan that agrees to be bound by the
restrictions of this section 6(b)(i); provided, however, that in either
case five Tokyo business days prior written notice shall be given to the
Joint Global Coordinators), without the prior written consent of the Joint
Global Coordinators;
(ii) To deliver or cause to be delivered to Xxxxxxx, Sachs & Co or its
agent acting as agent on behalf of the Underwriters no later than the Time
of Delivery certificates representing the U.S. Shares for deposit with
JASDEC; and
(iii) In connection with the Global Offering, not to (and to cause its
affiliates (excluding the Company and any person controlled by the Company)
not to) take, directly or indirectly, any action which is designed to or
which constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale or the Offered Shares or the ADSs.
7. (a) The Company covenants and agrees with the Selling Shareholder and
the several Underwriters that it will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of counsel to the Company and
the Company's accountants in connection with the registration of the
Offered Shares and ADSs under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the securities notice and the extraordinary securities report
filed in Japan, any Preliminary Prospectus, the Prospectus, the Japanese
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and the Global
Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Global Underwriting Agreements, the Agreement among
Syndicates, the Selling Agreements, any Blue Sky Memorandum and any other
documents in connection with the offering, purchase, sale and delivery of
the Offered Shares and ADSs;
(iii) all expenses in connection with the qualification of the Offered
Shares and ADSs for offering and sale under state securities laws as
provided in Section 6(a)(ii) hereof, including the fees and disbursements
of counsel for the Underwriters in connection with such qualification and
in connection with any Blue Sky survey;
14
(iv) all fees and expenses in connection with listing the Offered Shares
on the Tokyo Stock Exchange, all other stock exchanges in Japan and the
London Stock Exchange and listing the ADSs on the New York Stock Exchanges;
(v) out-of-pocket expenses (including fees, disbursements and expenses
of counsel to the Underwriters) incurred by the Underwriters in connection
with the transactions contemplated herein in an amount to be separately
agreed by the Joint Global Coordinators and the Company;
(vi) all expenses and Japanese taxes arising as a result of (A) the
deposit of Offered Shares with the Depositary and the issuance and delivery
of the ADRs evidencing ADSs in exchange therefor by the Depositary, (B) the
sale and delivery of the Offered Shares by the Selling Shareholder to or
for the account of the Underwriters and the International Underwriters, (C)
the sale and delivery outside of Japan of the Offered Shares and the ADSs
by the Underwriters and the International Underwriters to each other and to
the initial purchasers thereof in the manner contemplated hereunder and
under the International Underwriting Agreement and (D) the reallocation of
the U.S. Shares and International Shares between the Underwriters and the
International Underwriters pursuant to the Agreement among Syndicates,
including, in any such case, any Japanese income, capital gains,
withholding, transfer or other tax asserted against an Underwriter or an
International Underwriter by reason of the purchase and sale of a Share or
an ADS pursuant to this Agreement, the International Underwriting Agreement
or the Agreement among Syndicates;
(vii) the fees and expenses (including fees and disbursements of
counsel), if any, of the Depositary and any custodian appointed under the
Deposit Agreement, other than the fees and expenses to be paid by holders
of ADRs (other than the Underwriters or the International Underwriters, in
connection with the initial purchase of ADSs and the Offered Shares);
(viii) the fees and expenses of the Authorized Agent (as defined in
Section 15 hereof);
(ix) the cost of preparing stock certificates;
(x) the cost and charges of any transfer agent or registrar;
(xi) all fees and expenses incurred in connection with the qualification
of the ADRs for deposit with DTC;
(xii) all expenses relating to the roadshows for the U.S. Offering and
the International Offering (including out-of-pocket expenses) in an amount
to be separately agreed by the Joint Global Coordinators and the Company;
(xiii) all costs of advertising and legal notices in connection with the
U.S. Offering and the International Offering; and
(xiv) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section; and
(b) The Selling Shareholder covenants and agrees with the Company and the
several Underwriters that it will pay or cause to be paid the fees,
disbursements and expenses of counsel to the Selling Shareholder.
15
8. The obligations of the Underwriters hereunder, as to the U.S. Shares to
be paid for at the Time of Payment and to be delivered at the Time of Delivery,
shall be subject, in the discretion of the Representatives on behalf of the
Underwriters, to the condition that all representations and warranties and other
statements of each of the Company and the Selling Shareholder herein are, at and
as of the Time of Payment, true and correct, the condition that each of the
Company and the Selling Shareholder shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions
provided, however, that only for the purpose of determining the satisfaction as
of the Time of Payment of the foregoing conditions, the references in clauses
(i) and (j) shall be deemed to refer to the Time of Payment and clauses (f), (l)
and (o) shall be disregarded:
(a) The Prospectus shall have been filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing or transmission by the
rules and regulations under the Securities Act and in accordance with
Section 6(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, United States counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Time of Payment, with respect to the validity of the ADSs, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Milbank, Tweed, Xxxxxx & XxXxxx, United States counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Time of Payment, in form and substance satisfactory to the
Representatives, to the effect set forth in Annex I hereto and in giving
such opinion, may state that with respect to all matters of Japanese law
they have relied upon the opinion of Japanese counsel for the Company
delivered pursuant to paragraph (d) of this Section 8;
(d) Tomotsune Kimura & Mitomi, Japanese counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Payment, in form and substance satisfactory to the Representatives, to the
effect set forth in Annex II hereto, and in giving such opinion, may state
that with respect to all matters of United States federal and New York law
they have relied upon the opinions of United States counsel for the Company
delivered pursuant to paragraph (c) of this Section 8;
(e) Tsunematsu Yanase & Sekine, Japanese counsel for the Underwriters,
shall have furnished to the Representatives their written opinion, dated
the Time of Payment, in form and substance satisfactory to the
Representatives, to the effect set forth in Annex III hereto, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon the foregoing matters. In
addition, in giving such opinion, such counsel may state that with respect
to all matters of United States federal and New York law they have relied
upon the opinions of United States counsel for the Underwriters delivered
pursuant to paragraph (b) of this Section 8;
(f) Xxxxxxx, Xxxxxxx & Xxxxxx, United States counsel for the Depositary,
shall have furnished to the Representatives their written opinion, dated
the Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect set forth in Annex IV hereto;
16
(g) Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Selling
Shareholder, shall have furnished to the Representatives their written
opinion, dated the Time of Payment, in form and substance satisfactory to
the Representatives, to the effect set forth in Annex V hereto;
(h) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at the Time of Payment, Price
Waterhouse shall have furnished to the Representatives a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to the Representatives, to the effect set forth in Annex VI
hereto;
(i) During the period beginning on the date hereof and ending on and
including the Time of Delivery, (i) neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, (ii) no downgrading
shall have occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and (iii) since the respective dates as of which
information is given in the Prospectus there shall not have been (A) any
change in the capital stock of the Company, (B) any increase in excess of
(Yen)400 billion in the long-term debt of the Company on a consolidated
basis, or (C) any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in Clause (i),
(ii) or (iii), is in the judgment of the Representatives, after
consultation (which the Joint Global Coordinators will use good faith
efforts to make and consider) with the Selling Shareholder, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Shares and ADSs on the terms
and in the manner contemplated in the Prospectus;
(j) During the period beginning on the date hereof and ending on and
including the Time of Delivery, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in the
Company's securities or in securities generally on the Tokyo Stock
Exchange, the London Stock Exchange or the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in Tokyo, London or New
York declared by the relevant authorities; (iii) a change or development
involving a prospective change in Japanese taxation affecting the Company,
the Offered Shares or the ADSs or the transfer thereof or in the exchange
controls in effect in Japan or the imposition of exchange controls by the
United States or the United Kingdom; (iv) the outbreak or escalation of
hostilities involving Japan, the United States or the United Kingdom or the
declaration by Japan, the United States or the United Kingdom of a national
emergency or war; or (v) the occurrence of any material adverse change in
the existing financial, political or economic conditions in Japan, the
United States, the United Kingdom or elsewhere which, in the case of
clauses (i) to (v), in the judgment of the Joint Global Coordinators, after
consultation (which the Joint Global Coordinators will
17
use good faith efforts to make and consider) with the Company and the
Selling Shareholder, makes it impracticable or inadvisable to proceed with
the offering or the delivery of the Offered Shares on the terms and in the
manner contemplated by this Underwriting Agreement and the Global
Underwriting Agreements and the Prospectus;
(k) The Offered Shares at the Time of Payment shall have been duly approved
for listing on the Tokyo Stock Exchange and the London Stock Exchange and
the ADSs to be sold shall have been duly approved for listing on the New
York Stock Exchange;
(l) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery a certificate or certificates,
dated the Time of Delivery, of an officer or Director of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of the Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Time of Delivery, as to the
matters set forth in subsections (a) and (j) of this Section, and as to
such other matters as the Representatives may reasonably request;
(m) The Selling Shareholder shall have furnished or caused to be furnished
to the Representatives at the Time of Payment a certificate or
certificates, dated the Time of Payment, of the Director General of the
Finance Bureau of the Ministry of Finance or any other official
satisfactory to the Representatives satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Selling
Shareholder herein at and as of the Time of Payment, as to the performance
by the Selling Shareholder of all of its obligations hereunder to be
performed at or prior to the Time of Payment, and as to such other matters
as the Representatives may reasonably consider necessary for the
consummation of the transactions contemplated under this Agreement;
(n) The Company shall have complied with the provisions of Section
6(a)(iii) hereof with respect to the furnishing of prospectus on the New
York Business Day next succeeding the date of this Agreement;
(o) The action referred to in Section 6(b)(ii) shall have been taken by the
Selling Shareholder; and
(p) The Global Underwriting Agreements shall not have been terminated and
shall remain in full force and effect.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the ADR Registration Statement, the Prospectus, or the
Japanese Prospectus or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue
18
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement, the ADR Registration Statement, the Prospectus or
the Japanese Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or the Selling Shareholder may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the ADR Registration Statement, the
Prospectus or the Japanese Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the ADR Registration Statement, the Prospectus or the Japanese
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company and the Selling Shareholder for any legal or other expenses reasonably
incurred by the Company or the Selling Shareholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable for any
settlement of any action effected without its consent, but if settlement is made
with the consent of the indemnifying party, such indemnifying party shall
indemnify and hold harmless the indemnified party against any loss or liability
by reason of such settlement.
(d) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and
19
the Selling Shareholder on the one hand and the Underwriters on the other from
the offering of the Offered Shares and ADSs. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholder on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholder on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Offered Shares purchased under
this Agreement (before deducting expenses) received by the Company and the
Selling Shareholder bear to the total underwriting commissions received by the
Underwriters with respect to the Offered Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the U.S. Prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholder on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or the Selling Shareholder within the
meaning of the Securities Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
U.S. Shares which it has agreed to purchase hereunder (a) the Representatives
will notify the Company and the
20
Selling Shareholder promptly after becoming aware of such default and (b) the
Representatives and the Selling Shareholder may in their discretion arrange for
the Representatives or another party or other parties satisfactory to the
Representatives to purchase such U.S. Shares on the terms contained herein. In
the event that the Representatives notify the Selling Shareholder that they have
so arranged for the purchase of such U.S. Shares, or the Selling Shareholder
notifies the Representatives that it has so arranged for the purchase of such
U.S. Shares, the Representatives or the Selling Shareholder shall effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in the Representatives' opinion may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such U.S. Shares.
(b) If, after giving effect to any arrangements for the purchase of the
U.S. Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Selling Shareholder as provided in subsection (a) above, the aggregate
number of such U.S. Shares which remains unpurchased does not exceed three-
tenths of the aggregate number of all of the U.S. Shares, then the Selling
Shareholder shall have the right to require each non-defaulting Underwriter to
purchase the number of U.S. Shares which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of U.S. Shares which such
Underwriter agreed to purchase hereunder) of the U.S. Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
U.S. Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Selling Shareholder as provided in subsection (a) or (b) above, the
aggregate number of such U.S. Shares which remains unpurchased exceeds three-
tenths of the aggregate number of all of the U.S. Shares, then the Selling
Shareholder shall have the right to require each non-defaulting Underwriter to
purchase the number of U.S. Shares which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of U.S. Shares which such
Underwriter agreed to purchase hereunder) of the U.S. Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made up to
a limit of three-tenths of all of the U.S. Shares after which this Agreement
shall thereupon be modified to reduce the total number of U.S. Shares to be sold
and purchased pursuant to this Agreement by the aggregate number of such U.S.
Shares which remain unpurchased, without liability on the part of any non-
defaulting Underwriter or the Company or the Selling Shareholder, except for the
expenses to be borne by the Company and the Selling Shareholder and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 9 hereof; provided, however, that if the Selling
Shareholder does not exercise its right under this subsection (c), this
Agreement shall terminate without liability as stated immediately above; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
If the number of U.S. Shares to be sold and purchased is reduced pursuant
to this subsection (c), the Selling Shareholder shall as soon as practicable
return the portion of the payment made, if any, pursuant to Section 4(a)
relating to the reduced U.S. Shares. Additionally, if the Selling Shareholder
does not exercise its right under this subsection (c) and this Agreement is
terminated, the Selling Shareholder shall as soon as practicable return the
payment made, if any, pursuant to Section 4(a).
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the
21
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or the Selling Shareholder, or any
officer or director or controlling person of the Company, or any controlling
person of the Selling Shareholder, and shall survive delivery of and payment for
the Offered Shares.
12. If the Offered Shares are not delivered by or on behalf of the Selling
Shareholder as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Offered Shares, but the Company and the Selling Shareholder
shall then be under no further liability to any Underwriter in respect of the
Offered Shares except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the Representatives in care of Xxxxxxx, Xxxxx & Co.,
00 Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Registration Department;
if to the Selling Shareholder shall be delivered or sent by mail, hand delivery
or facsimile transmission (with a Japanese translation attached; provided,
however, that the failure to provide a Japanese translation does not affect the
validity of such notice) to 0-0 Xxxxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000,
Xxxxx, Attention: National Property Coordination Division, Finance Bureau; and
if to the Company shall be delivered or sent by mail, hand delivery or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: General Affairs Department; provided, however, that any
notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, hand delivery or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Shareholder by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholder and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company
and each person or entity that controls the Company, the Selling Shareholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement; provided, however, that the Minister of
Finance shall sign this Agreement in his official and not his personal capacity
and as such, this Agreement shall not be binding upon the heirs, executors,
administrators, successors and assigns of the Minister of Finance and no
recourse shall be had against the Minister of Finance personally. No purchaser
of any of the Offered Shares from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
15. Each of the Company and the Underwriters irrevocably (i) agrees that
any legal suit, action or proceeding against the Company brought by any
Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court located in the Borough of Manhattan,
The City of New York, New York (each a "New York Court"), (ii) waives, to the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the
22
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
irrevocably waives any immunity to jurisdiction to which it may otherwise be
entitled or become entitled (including sovereign immunity, immunity to pre-
judgment attachment, post-judgment attachment and execution) in any legal suit,
action or proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby which is instituted in any New York Court or in
any competent court in Japan. The Company has appointed C T Corporation System,
New York, New York, as its authorized agent (the "Authorized Agent") upon whom
process may be served in any such action arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in any
New York Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. The
Company represents and warrants that the Authorized Agent has agreed to act as
such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
mailed or delivered to the Company in Tokyo, Japan shall be deemed, in every
respect, effective service of process upon the Company.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
17. (a) In connection with the global offering of the Offered Shares, the
Representatives for their own account at their discretion may, as principals and
not as agents of the Company or the Selling Shareholder and to the extent
permitted by applicable laws and regulations, effect transactions in relation to
the NTT Common Stock with a view to stabilizing or maintaining the market price
of the NTT Common Stock at levels other than those which might otherwise prevail
in the open market and such stabilization, if commenced, may be discontinued at
any time. Any loss resulting from such stabilization shall be borne, and any
profit arising therefrom shall be retained, by the Representatives.
(b) The Company undertakes with the Underwriters that, unless it has
received the prior consent thereto of the Representatives, it will not at any
time from the date hereof up to and including the Time of Delivery for such
Offered Shares effect or enter into, or cause or permit any other parties (other
than the Underwriters and the Global Underwriters) who may otherwise be
permitted under applicable laws and regulations to engage in stabilization
transactions to effect or enter into, any transactions (in the open market or
otherwise) or effect or enter into any other arrangements the object or effect
of which would be to stabilize or maintain the market price of NTT Common Stock
at levels which might not otherwise prevail.
23
18. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
19. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
20. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
24
The foregoing being in accordance with the Selling Shareholder, the
Company and the Representatives understanding, the parties hereto have duly
executed this Underwriting Agreement.
THE MINISTER OF FINANCE OF JAPAN
As representative of the Government of Japan
By: _________________________
Name:
Title:
NIPPON TELEGRAPH AND TELEPHONE CORPORATION
By: _________________________
Name:
Title:
XXXXXXX, SACHS & CO.
____________________________
(Xxxxxxx, Xxxxx & Co.)
WARBURG DILLON READ LLC
By:____________________________
Name:
Title:
DAIWA SECURITIES AMERICA INC.
By:____________________________
Name:
Title:
On behalf of each of the Underwriters
25
SCHEDULE I
UNDERWRITER TOTAL NUMBER OF U.S. SHARES TO BE PURCHASED
----------- -------------------------------------------
Xxxxxxx, Xxxxx & Co. ..................
Warburg Dillon Read LLC................
Daiwa Securities America Inc. .........
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx..
Incorporated..............
Xxxxxx Xxxxxxx & Co. Incorporated......
Xxxxxxx Xxxxx Barney Inc. .............
Total.............................
SCHEDULE II
In the Agreement, unless the context otherwise requires:
"ADRs" means American Depositary Receipts issued by the Depositary
pursuant to the Deposit Agreement and evidencing ADSs.
"ADSs" means American Depositary Shares issued pursuant to the Deposit
Agreement, each ADS initially representing the right to receive 1/200th of a
share of NTT Common Stock deposited pursuant to the Deposit Agreement.
"ADS Registration Statement" has the meaning specified in Section
1(a)(v).
"ADS Time of Delivery" has the meaning specified in Section 5(b).
"Agreement among Syndicates" means the Agreement among Underwriting
Syndicates, dated the date hereof, among the Underwriters, the International
Underwriters and the Japanese Underwriters.
"Authorized Agent" has the meaning specified in Section 15.
"Business Day" means any day when the Commission's office in
Washington, D.C. is open for business.
"Closing Location" means the offices of Xxxxxxxx & Xxxxxxxx, Tokio
Kaijo Building Shinkan, 2-1, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000,
Xxxxx.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means Nippon Telegraph and Telephone Corporation, a limited
liability joint stock company incorporated under the laws of Japan.
"Delivery Date" has the meaning specified in Section 4(b).
"Deposit Agreement" means the deposit agreement, dated as of July 8,
1994, among the Company, the Depositary and holders from time to time of the
ADRs issued thereunder.
"Depositary" means Xxxxxx Guaranty Trust Company of New York, as
depositary under the Deposit Agreement.
"DTC" means The Depository Trust Company.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
"Global Offering" means the U.S. Offering, the International Offering
and the Japanese Offering.
1
"Global Underwriters" means the International Underwriters and the
Japanese Underwriters.
"Global Underwriting Agreements" means the International Underwriting
Agreement and the Japanese Underwriting Agreement.
"Governmental Agency" has the meaning specified in Section 1(a)(xi).
"Governmental Authorizations" has the meaning specified in Section
1(a)(xi).
"International Offering" means the offering of the International
Shares by the International Underwriters outside the United States, Canada and
Japan.
"International Prospectus" means the prospectus used in connection
with the offering and sale of International Shares in the International
Offering.
"International Shares" means the ______ shares of NTT Common Stock to
be sold by the Selling Shareholder to the International Underwriters pursuant to
the International Underwriting Agreement.
"International Underwriters" means the underwriters named in Schedule
I to the International Underwriting Agreement, for whom Warburg Dillon Read,
Daiwa Europe Limited and Xxxxxxx Xxxxx International are acting as lead
managers.
"International Underwriting Agreement" means the International
Underwriting Agreement, dated the date hereof, among the Company, the Selling
Shareholder and the International Underwriters.
"Investment Company Act" means the United States Investment Company
Act of 1940, as amended.
"Japanese Offering" means the offering of the Japanese Shares by the
Japanese Underwriters in Japan.
"Japanese Prospectus" means the prospectus used in connection with the
offering and sale of Japanese Shares in the Japanese Offering.
"Japanese Shares" means the ______ shares of NTT Common Stock to be
sold by the Selling Shareholder to the Japanese Underwriters pursuant to the
Japanese Underwriting Agreement.
"Japanese Underwriters" means the underwriters named in the Japanese
Underwriting Agreement, for whom Daiwa Securities Co. Ltd., Xxxxxxx Sachs
(Japan) Ltd. and Warburg Dillon Read (Japan) Limited are acting as lead
managers.
"Japanese Underwriting Agreement" means the Japanese Underwriting
Agreement, dated the date hereof, among the Company, the Selling Shareholder and
the Japanese Underwriters.
2
"JASDEC" means the Japan Securities Depository Center.
"Joint Global Coordinators" means Daiwa Securities Co. Ltd., Xxxxxxx
Xxxxx International and Warburg Dillon Read, as joint global coordinators for
the Global Offering.
"Judgment currency" has the meaning specified in Section 16.
"New York Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The City
of New York are generally authorized or obligated by law or executive order to
close.
"New York Court" means any state or federal court located in the
Borough of Manhattan, The City of New York, New York.
"Notification Time" has the meaning specified in Section 5(a).
"NTT Common Stock" means the common stock, par value (Yen)50,000 per
share, of the Company.
"Offered Shares" means the U.S. Shares, the International Shares and
the Japanese Shares.
"Preliminary Prospectus" has the meaning specified in Section 1(a)(i).
"Prospectus" has the meaning specified in Section 1(a)(i).
"Registration Statement" has the meaning specified in Section 1(a)(i).
"Representatives" means Xxxxxxx, Xxxxx & Co., Warburg Dillon Read LLC
and Daiwa Securities America Inc., as representatives of the several
Underwriters.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
"Selling Shareholder" means the Minister of Finance of Japan,
representing the Government of Japan.
"Time of Delivery" has the meaning specified in Section 4(b).
"Time of Payment" has the meaning specified in Section 4(a).
"Tokyo business day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in Tokyo are
generally authorized or obligated by law or executive order to close.
"Underwriting Commission" has the meaning specified in Section 2.
"Underwriters" means the several underwriters named in Schedule I
hereto.
3
"U.S. ADSs" means ADSs representing U.S. Shares.
"U.S. GAAP" means generally accepted accounting principles in the
United States.
"U.S. Offering" means the offering of the U.S. Shares by the
Underwriters in the United States and Canada.
"U.S. Prospectus" means the prospectus used in connection with the
offering and sale of U.S. Shares in the U.S. Offering.
"U.S. Shares" means the shares of NTT Common Stock to be sold by the
Selling Shareholder to the Underwriters pursuant to this Agreement.
"Warburg Dillon Read" means UBS AG, acting through its division
Warburg Dillon Read.
"Year 2000 Problem" has the meaning specified in Section 1(a)(xxiv).
4
ANNEX I
Pursuant to Section 8(c) of this Agreement, Milbank, Tweed, Xxxxxx &
XxXxxx, United States counsel for the Company, shall furnish their written
opinion to the effect that:
(i) Assuming each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by the Company
under Japanese law, each of this Agreement and the International
Underwriting Agreement has been duly executed and delivered by the Company;
(ii) Assuming that the Deposit Agreement has been duly authorized,
executed and delivered by the Company under Japanese law, the Deposit
Agreement has been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery of the Deposit Agreement by the
Depositary and that each of the Depositary and (under Japanese law) the
Company has full power, authority and legal right to enter into and perform
its obligations thereunder, constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms, ,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement
of creditors' rights generally and except as the enforceability thereof is
subject to the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including, without
limitation, (i) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (ii) concepts of
materiality, reasonableness, good faith and fair dealing; and the
statements set forth under the heading "Description of American Depositary
Receipts" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the Deposit Agreement, fairly summarize, in
all material respects, such provisions;
(iii) Upon due issuance of the ADRs evidencing ADSs being delivered at
the Time of Delivery against the deposit of Offered Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the person in whose name the ADR
is registered will be entitled to the rights specified therein and in the
Deposit Agreement;
(iv) Assuming each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by the Company
and is enforceable against the Company under Japanese law, and assuming
that each of this Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the other parties
thereto and are enforceable against such parties under applicable law,
under the laws of the State of New York relating to personal jurisdiction,
the Company has, pursuant to Section 15 of this Agreement and the
International Underwriting Agreement, validly and irrevocably submitted to
the personal jurisdiction of any state or federal court located in the
Borough of Manhattan, The City of New York, New York (each a "New York
Court") in any action arising out of or relating to this Agreement or the
International Underwriting Agreement or the transactions contemplated
hereby or thereby, has validly and irrevocably waived any objection to the
venue of a proceeding in any such court, and has validly and irrevocably
appointed the Authorized Agent (as defined herein) as its authorized agent
for the purpose described in Section 15 of this Agreement and the
International Underwriting Agreement; and service of process effected on
such agent in the manner set forth in Section 15 of this Agreement and the
International Underwriting Agreement will be effective to confer valid
personal jurisdiction over the Company;
I-1
(v) The deposit of the Offered Shares being deposited with the Depositary
against issuance of the ADRs evidencing the ADSs and the compliance by the
Company with all of the provisions of this Agreement, the Global
Underwriting Agreements and the Deposit Agreement and the consummation of
the transactions herein or therein contemplated will not conflict with or
result in a breach or violation of any statute, rule or regulation of the
United States or the State of New York;
(vi) No Governmental Authorization of the United States or the State of
New York is required for the sale of the Offered Shares and the ADSs or the
consummation by the Company of the transactions contemplated by this
Agreement and the Global Underwriting Agreements, except the registration
under the Securities Act of the Offered Shares and the ADSs, and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Shares and the ADSs by the
Underwriters and the Global Underwriters;
(vii) The statements set forth in the Prospectus under the captions
"Description of American Depositary Receipts", insofar as they purport to
constitute a summary of the terms of the ADRs, and with respect to U.S.
federal law under the caption "Certain Tax Considerations", insofar as they
purport to describe the provisions of the U.S. federal statutes, rules and
regulations and documents referred to therein, are accurate, complete and
fair;
(viii) The Company is not an "investment company" as such term is defined
in the Investment Company Act; and
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Time of
Delivery (other than the financial statements, financial data and related
schedules therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities
Act; although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
subsection (vii) of this Annex I, they have no reason to believe that, as
of its effective date, the Registration Statement or any further amendment
thereto (including any documents incorporated by reference therein) made by
the Company prior to the Time of Delivery (other than the financial
statements, financial data and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of its date, the Prospectus or any further amendment or supplement
thereto (including any documents incorporated by reference therein) made by
the Company prior to the Time of Delivery (other than the financial
statements, financial data and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto (including any documents incorporated by reference
therein) made by the Company prior to the Time of Delivery (other than the
financial statements, financial data and related schedules therein, as to
which such counsel need express no opinion) contains an untrue statement
I-2
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required.
I-3
ANNEX II
Pursuant to Section 8(d) of this Agreement, Tomotsune Kimura & Mitomi,
Japanese counsel for the Company, shall furnish their written opinion to the
effect that:
(i) The Company has been duly incorporated and is validly existing as a
joint stock corporation under the laws of Japan, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capital stock as set forth in the
Prospectus, and all of the issued shares of NTT Common Stock (including the
Offered Shares) have been duly and validly authorized and issued and are
fully paid and non-assessable; all of the NTT Common Stock (including the
Offered Shares) have been duly listed and admitted for trading on the Tokyo
Stock Exchange (except for the NTT Common Stock which will continue to be
held by the Selling Shareholder); the holders of outstanding NTT Common
Stock are not entitled to preemptive or other rights to acquire the Offered
Shares; the Offered Shares may be freely deposited with the Depositary
against issuance of ADRs evidencing ADSs; the Offered Shares are freely
transferable by the Selling Shareholder to or for the account of the
several Underwriters and International Underwriters and are freely
transferable by the several Underwriters and International Underwriters to
(to the extent described in the Prospectus) the initial purchasers thereof;
there are no restrictions on subsequent transfers of the Offered Shares or
ADSs under the laws of Japan (except to the extent described in the
Prospectus); and the Offered Shares conform to the description of the NTT
Common Stock contained in the Prospectus;
(iii) The Selling Shareholder is the sole registered holder of title to
the Offered Shares on the register of shareholders of the Company; the
Selling Shareholder has good and valid title to the Offered Shares to be
sold at the Time of Delivery by the Selling Shareholder under this
Agreement and the Global Underwriting Agreements, free and clear of all
liens, encumbrances, equities or claims; the Selling Shareholder has full
right, power and authority to sell, assign, transfer and deliver the
Offered Shares to be sold hereunder and thereunder; and upon delivery of
the Offered Shares and payment therefor pursuant to this Agreement and the
International Underwriting Agreement, good and valid title to the Offered
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the Underwriters or the International Underwriters, as the case may
be; and no persons are entitled to preemptive or other rights to acquire
the Offered Shares from the Selling Shareholder;
(iv) Each of this Agreement, the Global Underwriting Agreements and the
Deposit Agreement has been duly authorized, executed and delivered by the
Company and, in the case of this Agreement and the Global Underwriting
Agreements, the Selling Shareholder and, under the laws of Japan,
constitutes a valid and legally binding agreement of the Company and, in
the case of this Agreement and the Global Underwriting Agreements, the
Selling Shareholder, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and similar laws
of general applicability relating to or affecting creditors' rights, to
general equity principles and, in the case of the Selling Shareholder, to
any applicable sovereign immunity;
(v) Each of NTT Mobile Communications Network, Inc. and NTT Data
Corporation has been duly incorporated and is validly existing as a joint
II-1
stock corporation under the laws of Japan; and all of the issued shares of
capital stock of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except as otherwise set
forth in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens (other than statutory preferences granted to
the holders of bonds issued by the Company provided under Article 8 of the
Nippon Telegraph and Telephone Corporation Law), encumbrances, equities or
claims;
(vi) To the best of such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(vii) The indemnification and contribution provisions set forth in
Section 9 of this Agreement and the International Underwriting Agreements
do not contravene the public policy or laws of Japan;
(viii) The deposit of the Offered Shares being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs and the
compliance by the Company with all of the provisions of this Agreement, the
Global Underwriting Agreements and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will
such action result in any violation of the provisions of the Articles of
Incorporation, Regulations of the Board of Directors and Share Handling
Regulations of the Company or any statute or any order, rule or regulation
known to such counsel of any Governmental Agency in Japan having
jurisdiction over the Company or any of its properties;
(ix) The sale and delivery of the Offered Shares by the Selling
Shareholder hereunder and under the Global Underwriting Agreements and the
compliance by the Selling Shareholder with all of the provisions of, and
the performance by the Selling Shareholder of his obligations under, this
Agreement and the Global Underwriting Agreements and the consummation by
the Selling Shareholder of the transactions herein and therein contemplated
will not result in any violation by the Selling Shareholder of the
provisions of any statute or any order, rule or regulation of any
Governmental Agency in Japan;
(x) No Governmental Authorization of any Governmental Agency in Japan is
required for the sale of the Offered Shares by the Selling Shareholder, for
the deposit of the Offered Shares being deposited with the Depositary
against issuance of ADRs evidencing the ADSs to be delivered or the
consummation by the Company or by the Selling Shareholder of the
transactions contemplated by this Agreement and the Global Underwriting
Agreements, except the authorization by the relevant national budget of
the sale of the Offered Shares which have been duly obtained and are in
full force and effect;
II-2
(xi) Each of this Agreement, the Global Underwriting Agreements, the
Deposit Agreement and the ADRs evidencing the ADSs is in proper form under
the laws of Japan to be enforced against the Company and the Selling
Shareholder and the certificates for the Offered Shares are in proper form
to be legal and valid under the laws of Japan, and to ensure the legality,
validity, enforceability or admissibility into evidence in Japan of this
Agreement, the Global Underwriting Agreements, the Deposit Agreement, the
ADRs or the Offered Shares, as the case may be, it is not necessary that
this Agreement, the Global Underwriting Agreements, the Deposit Agreement,
the ADRs or the Offered Shares or any other documents be filed or recorded
with any court or other authority in Japan or that any Japanese stamp or
similar tax be paid by the Underwriters or the Global Underwriters or
purchasers therefrom on or in respect of this Agreement, the Global
Underwriting Agreements, the Deposit Agreement, the ADRs or the Offered
Shares or any other document to be furnished hereunder or thereunder;
(xii) The statements in the Prospectus under the captions "Description of
the Shares", insofar as they purport to constitute a summary of the terms
of the NTT Common Stock and under the captions "Prospectus Summary", "The
Company", "Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business", "Regulatory Developments", "Principal
Shareholders and Selling Shareholder", "Description of American Depositary
Receipts--Restrictions on Foreign Ownership", "Certain Tax Considerations--
Japanese Taxation" and "Underwriting", to the extent such statements
relate to matters of Japanese law or regulation or to the provisions of
documents governed by Japanese law therein described, are true and accurate
in all material respects, and nothing has been omitted from such statements
which would make the same misleading in any material respect;
(xiii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters or the Global Underwriters to Japan or to any
political subdivision or taxing authority thereof or therein in connection
with (A) the deposit with the Depositary of Offered Shares against the
issuance of ADRs evidencing the ADSs, (B) the sale and delivery by the
Selling Shareholder of the Offered Shares to or for the respective accounts
of the Underwriters or the International Underwriters, (C) the execution
and delivery of this Agreement or the Global Underwriting Agreements or (D)
the sale and delivery by the Underwriters or the Global Underwriters of the
Offered Shares and ADSs to the initial purchasers thereof in the manner
contemplated herein and in the Global Underwriting Agreements;
(xiv) Insofar as matters of Japanese law are concerned, the Registration
Statement and the filing of the Registration Statement with the Commission
have been duly authorized by and on behalf of the Company; and the
Registration Statement has been duly executed pursuant to such
authorization by and on behalf of the Company;
(xv) The Company's agreement to the choice of law provisions set forth in
Section 15 of this Agreement and the International Underwriting Agreement
will be recognized by the courts of Japan; the Company can xxx and be sued
in its own name under the laws of Japan; the irrevocable submission of the
Company to the exclusive jurisdiction of a New York Court, the waiver by
the Company of any objection to the venue of a proceeding of a New York
Court and the agreement of the Company that this Agreement and the
International Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York are legal, valid and
binding; service of process
II-3
effected in the manner set forth in Section 15 of this Agreement and the
International Underwriting Agreement will be effective, insofar as Japanese
law is concerned, to confer valid personal jurisdiction over the Company;
and judgment obtained in a New York Court arising out of or in relation to
the obligations of the Company under this Agreement would be enforceable
against the Company in the courts of Japan, provided that (A) the
jurisdiction of such New York Court is not denied under the laws of Japan
(as of the date of this opinion the laws of Japan would not deny the
jurisdiction over the Company of New York Courts in any such legal suit),
(B) the Company has received service of process otherwise than by public
notice or has appeared before such New York Court, (C) such judgment is not
repugnant to public policy as applied in Japan and (D) there exists
reciprocity as to the recognition by a New York Court of a final judgment
obtained in a Japanese court.;
(xvi) The Company is not entitled to any immunity on the basis of
sovereignty or otherwise in respect of its obligations under this Agreement
or the International Underwriting Agreement and could not successfully
interpose any such immunity as a defense to any suit or action brought or
maintained in respect of its obligations under this Agreement or the
International Underwriting Agreement; and the waiver by the Company of
immunity to jurisdiction (including the waiver of sovereign immunity to
which the Company may become entitled subsequent to the date of this
Agreement and the International Underwriting Agreement) and immunity to
pre-judgment attachment, post-judgment attachment and execution in any
suit, action or proceeding against it arising out of or based on this
Agreement and the International Underwriting Agreement is a valid and
binding obligation of the Company under Japanese law;
(xvii) All dividends and other distributions declared and payable on the
NTT Common Stock (subject to the approval of the Minister of Posts and
Telecommunications) (including any payments to the Depositary in respect of
ADSs) may under the current laws and regulations of Japan be paid in
Japanese yen that may be converted into foreign currency that may be freely
transferred out of Japan, and except as described in the Prospectus, all
such dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Japan and are otherwise
free and clear of any other tax, withholding or deduction in Japan and
without the necessity of obtaining any Governmental Authorization in Japan;
(xviii) To the best of such counsel's knowledge, the Company is not in
violation of its Articles of Incorporation, Regulations of the Board of
Directors or Share Handling Regulations or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound; and
(xix) Although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
subsection(xii) of this Annex II, they have no reason to believe that, as
of its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than the
financial statements, financial data and related schedules therein, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements
II-4
therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements, financial data and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements,
financial data and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
II-5
ANNEX III
Pursuant to Section 8(e) of this Agreement, Tsunematsu Yanase & Sekine,
Japanese counsel for the Underwriters, shall furnish their written opinion to
the effect that:
(i) The Company has been duly incorporated and is validly existing as a
joint stock corporation under the laws of Japan, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capital stock as set forth in the
Prospectus, and all of the issued NTT Common Stock (including the Offered
Shares) have been duly and validly authorized and issued and are fully paid
and non-assessable; all of the shares of NTT Common Stock (including the
Offered Shares) have been duly listed and admitted for trading on the Tokyo
Stock Exchange (except for the NTT Common Stock which will continue to be
held by the Selling Shareholder); the holders of outstanding NTT Common
Stock are not entitled to preemptive or other rights to acquire the Offered
Shares; the Offered Shares may be freely deposited with the Depositary
against issuance of ADRs evidencing ADSs; the Offered Shares are freely
transferable by the Selling Shareholder to or for the account of the
several Underwriters and International Underwriters and are freely
transferable by the several Underwriters and International Underwriters to
or for the account of (to the extent described in the Prospectus) the
initial purchasers thereof; there are no restrictions on subsequent
transfers of the Offered Shares or ADSs under the laws of Japan (except to
the extent described in the Prospectus); and the Offered Shares conform to
the description of the NTT Common Stock contained in the Prospectus;
(iii) The Selling Shareholder is the sole registered holder of title to
the Offered Shares on the register of shareholders of the Company;
(iv) Each of this Agreement, the Global Underwriting Agreements and the
Deposit Agreement has been duly authorized, executed and delivered by the
Company and, under the laws of Japan, constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(v) Each of NTT Mobile Communications Network, Inc. and NTT Data
Corporation has been duly incorporated and is validly existing as a joint
stock corporation under the laws of Japan; and all of the issued shares of
capital stock of each such corporation have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except as
otherwise set forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims;
(vi) The indemnification and contribution provisions set forth in Section
9 of this Agreement and the International Underwriting Agreement do not
contravene the public policy or laws of Japan;
(vii) No Governmental Authorization of any Governmental Agency is
required in Japan for the deposit of the Offered Shares being deposited
with the Depositary against issuance of ADRs evidencing the ADSs to be
delivered or the consummation by the Company of the transactions
contemplated by this Agreement and the Global Underwriting Agreements,
except the authorization by the relevant national budget of the sale of the
Offered Shares which have been duly obtained and are in full force and
effect;
III-1
(viii) Each of this Agreement, the Global Underwriting Agreements, the
Deposit Agreement and the ADRs evidencing the ADSs is in proper form under
the laws of Japan to be enforced against the Company and the Selling
Shareholder and the certificates for the Offered Shares are in proper form
to be legal and valid under the laws of Japan, and to ensure the legality,
validity, enforceability or admissibility into evidence in Japan of this
Agreement, the Global Underwriting Agreements, the Deposit Agreement, the
ADRs or the Offered Shares, as the case may be, it is not necessary that
this Agreement, the Global Underwriting Agreements, the Deposit Agreement,
the ADRs or the Offered Shares or any other documents be filed or recorded
with any court or other authority in Japan or that any Japanese stamp or
similar tax be paid by the Underwriters or the Global Underwriters or
purchasers therefrom on or in respect of this Agreement, the Global
Underwriting Agreements, the Deposit Agreement, the ADRs or the Offered
Shares or any other document to be furnished hereunder or thereunder;
(ix) The statements in the Prospectus under the captions "Description of
the Shares", insofar as they purport to constitute a summary of the terms
of the NTT Common Stock and under the captions "Prospectus Summary", "The
Company", "Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business", "Regulatory Developments", "Principal
Shareholders and Selling Shareholder", "Description of American Depositary
Receipts--Restrictions on Foreign Ownership", "Certain Tax Considerations--
Japanese Taxation" and "Underwriting", to the extent such statements
relate to matters of Japanese law or regulation or to the provisions of
documents governed by Japanese law therein described, are true and accurate
in all material respects, and nothing has been omitted from such statements
which would make the same misleading in any material respect;
(x) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of
the Underwriters or the Global Underwriters to Japan or to any political
subdivision or taxing authority thereof or therein in connection with (A)
the deposit with the Depositary of Offered Shares against the issuance of
ADRs evidencing the ADSs, (B) the sale and delivery by the Selling
Shareholder of the Offered Shares to or for the respective accounts of the
U.S. Underwriters or the International Underwriters, (C) the execution and
delivery of this Agreement or the Global Underwriting Agreements or (D) the
sale and delivery by the Underwriters or the Global Underwriters of the
Offered Shares and ADSs to the initial purchasers thereof in the manner
contemplated herein and in the Global Underwriting Agreements;
(xi) Insofar as matters of Japanese law are concerned, the Registration
Statement and the filing of the Registration Statement with the Commission
have been duly authorized by and on behalf of the Company; and the
Registration Statement has been duly executed pursuant to such
authorization by and on behalf of the Company;
(xii) The Company's agreement to the choice of law provisions set forth
in Section 15 of this Agreement and the International Underwriting
Agreement will be recognized by the courts of Japan; the Company can xxx
and be sued in its own name under the laws of Japan; the irrevocable
submission of the Company to the exclusive jurisdiction of a New York
Court, the waiver by the Company of any objection to the venue of a
proceeding of a New York Court and the agreement of the Company that this
Agreement and the International Underwriting Agreement shall be governed by
and construed in accordance
III-2
with the laws of the State of New York are legal, valid and binding;
service of process effected in the manner set forth in Section 15 of this
Agreement and the International Underwriting Agreement will be effective,
insofar as Japanese law is concerned, to confer valid personal jurisdiction
over the Company; and under the laws of Japan currently in effect, Japanese
courts would recognize as a valid judgment and enforce without
reexamination of the merits of the action any final and conclusive civil
judgment for monetary claims obtained in a State or a Federal court, as the
case may be, sitting in New York City against the Company, in an action
arising out of or relating to this Agreement or the International
Underwriting Agreement and instituted by service of process (otherwise than
by public notice or a method comparable thereto) on the authorized agent in
New York City of the Company provided therein, provided that (i) the
jurisdiction of such State or Federal court is recognized under Japanese
laws, (ii) recognition of such judgment and the court procedures thereof
are not repugnant to public policy or good morals as applied in Japan and
(iii) a State or a Federal court, as the case may be, sitting in New York
City would recognize as a valid judgment without reexamination of the
merits of the Japanese action, any final and conclusive civil judgment for
monetary claims obtained in a Japanese court in an action based upon
certain indebtedness and instituted by service of process on the Company
(such indebtedness being comparable to the obligation of the Company under
this Agreement or the International Underwriting Agreement), when
recognition of such Japanese judgment is not repugnant to public policy as
applied in a State or a Federal court, as the case may be, sitting in New
York City. There is no reason known to them why the enforcement in Japan of
such a judgment and the court procedures thereof in respect of the
obligation of the Company under this Agreement or the International
Underwriting Agreement would be contrary to Japanese public policy or good
morals;
(xiii) The Company is not entitled to any immunity on the basis of
sovereignty or otherwise in respect of its obligations under this Agreement
or the International Underwriting Agreement and could not successfully
interpose any such immunity as a defense to any suit or action brought or
maintained in respect of its obligations under this Agreement or the
International Underwriting Agreement; and the waiver by the Company of
immunity to jurisdiction (including the waiver of sovereign immunity to
which the Company may become entitled subsequent to the date of this
Agreement and the International Underwriting Agreement) and immunity to
pre-judgment attachment, post-judgment attachment and execution in any
suit, action or proceeding against it arising out of or based on this
Agreement and the International Underwriting Agreement is a valid and
binding obligation of the Company under Japanese law;
(xiv) All dividends and other distributions declared and payable on the
NTT Common Stock (subject to the approval of the Minister of Posts and
Telecommunications) (including any payments to the Depositary in respect of
ADSs) may under the current laws and regulations of Japan be paid in
Japanese yen that may be converted into foreign currency that may be freely
transferred out of Japan, and except as described in the Prospectus, all
such dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Japan and are otherwise
free and clear of any other tax, withholding or deduction in Japan and
without the necessity of obtaining any Governmental Authorization in Japan;
and
(xv) Although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
subsection (ix) of this Annex III, they have no
III-3
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the
Time of Delivery (other than the financial statements, financial data and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements,
financial data and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the financial
statements, financial data and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
III-4
ANNEX IV
Pursuant to Section 8(f) of this Agreement, Xxxxxxx, Xxxxxxx & Xxxxxx,
counsel to the Depositary, shall furnish their written opinion to the effect
that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally binding
obligation of the Depositary, enforceable in accordance with its terms,
except insofar as enforceability may be limited by (A) applicable
bankruptcy, insolvency, moratorium or other laws relating to creditors'
rights generally and (B) general principles of equity (whether considered
in an action at law or in equity); and
(ii) The ADRs will be validly issued and will entitle the holder thereof
to the rights specified therein and in the Deposit Agreement, assuming that
the ADRs evidencing ADSs are issued in accordance with the Deposit
Agreement against the deposit, pursuant to the terms of the Deposit
Agreement, of duly authorized, validly issued, fully paid and nonassessable
Offered Shares and that the preemptive rights, if any, with respect to the
Offered Shares have been validly waived or exercised.
IV-1
ANNEX V
Pursuant to Section 8(g) of this Agreement, Xxxxx Xxxx & Xxxxxxxx, United
States counsel for the Selling Shareholder, shall furnish their written opinion
to the effect that:
(i) Each of this Agreement and the International Underwriting Agreement
has been duly executed and delivered by the Selling Shareholder;
(ii) The sale of the Offered Shares by the Selling Shareholder and the
compliance by the Selling Shareholder with all of the provisions of this
Agreement and the International Underwriting Agreement and the consummation
of the transactions herein contemplated will not conflict with or result in
a breach or violation of any statute, rule or regulation of the United
States or the State of New York;
(iii) No Governmental Authorization of the United States or the State of
New York is required for the sale of the Offered Shares by the Selling
Shareholder, the deposit of the Offered Shares being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs or the
consummation by the Selling Shareholder of the transactions contemplated by
this Agreement and the International Underwriting Agreement, except the
registration under the Securities Act of the Offered Shares and the ADSs,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Offered Shares and
the ADSs by the Underwriters and the International Underwriters; and
(iv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Time of
Delivery (other than the financial statements, financial data and related
schedules therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities
Act; although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, they have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto
(including any documents incorporated by reference therein) made by the
Company prior to the Time of Delivery (other than the financial statements,
financial data and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto (including any
documents incorporated by reference therein) made by the Company prior to
the Time of Delivery (other than the financial statements, financial data
and related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto (including any
documents incorporated by reference therein) made by the Company prior to
the Time of Delivery (other than the financial statements, financial data
and related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required to be
filed as an
V-1
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
V-2
ANNEX VI
Pursuant to Section 8(h) of this Agreement, Price Waterhouse shall furnish
letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representatives;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's interim report on Form 6-K incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached hereto; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 8 of the Company's Annual
Report on Form 20-F for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
VI-1
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference
in an interim report on Form 6-K incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, or the
Exchange Act, as applicable and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus or included in an interim report on Form 6-K
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's
Annual Report on Form 20-F for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form 20-
F for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published rules
and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived
VI-2
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
VI-3
