Exhibit (a)(ii)
Citi Logo
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
November 16, 2007
TDK CORPORATION (TDK KABUSHIKI KAISHA)
0-00-0 Xxxxxxxxxx,
Xxxx-xx, Xxxxx, Xxxxx
Attention: Company Secretary
TDK CORPORATION (TDK KABUSHIKI KAISHA)
Direct Registration System for ADSs
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Deposit Agreement,
dated as of August 1, 2002 (the "Deposit Agreement"), by and among TDK
CORPORATION (TDK KABUSHIKI KAISHA) (the "Company"), Citibank, N.A., as
Depositary (the "Depositary"), and all Holders and Beneficial Owners from time
to time of American Depositary Receipts ("ADRs") evidencing American Depositary
Shares ("ADSs") issued thereunder, each ADS representing one (1) share of common
stock (the "Shares") of the Company. Capitalized terms used herein without
definition shall have the meaning assigned thereto in the Deposit Agreement.
The purpose of this letter agreement is to supplement the Deposit
Agreement to enable the establishment by the Depositary of a "direct
registration system" (the "DR System") for ADSs and the issuance by the
Depositary of "uncertificated ADSs" as part of the DR System. Therefore, the
Company and the Depositary agree as follows:
1. Notwithstanding any provision of the Deposit Agreement, the Depositary
may, at any time and from time to time, issue ADSs that are not evidenced by
ADRs (such ADSs, the "Uncertificated ADSs", and the ADSs evidenced by ADRs, the
"Certificated ADSs").
2. Uncertificated ADSs shall not be represented by any instrument(s) but
shall be evidenced only by the registration of "uncertificated securities" on
the books and records of the Depositary maintained through the DR System for
such purpose. Any reference to Holders of ADR(s) or ADS(S) in the Deposit
Agreement shall, in the context of the Uncertificated ADSs, refer to the
person(s) in whose name the Uncertificated ADSs are registered on the books of
the Depositary maintained through the DR System for such purpose.
3. Holders of Uncertificated ADSs that are not subject to any registered
pledges. liens, restrictions or adverse claims, of which the Depositary has
written notice at such time, shall at all times have the right to exchange the
Uncertificated ADSs (or any portion thereof) for Certificated ADSs of the same
type and class, subject in each case to applicable laws, and any procedures the
Depositary may establish from time to time in respect of the Uncertificated ADSs
which will be notified to the Company and Holders affected thereby.
4. Holders of Certificated ADSs shall have the right to exchange the
Certificated ADSs (or any portion thereon for Uncertificated ADSs upon (i) the
due surrender of the Certificated ADSs to the Depositary for such purpose, and
(ii) the presentation of a written request to such effect to the Depositary,
subject in each case to (a) all liens and restrictions noted on the ADR
evidencing the Certificated ADS(s) and all adverse claims of which the
Depositary then has written notice, (b) the terms of the Deposit Agreement (as
supplemented by this letter agreement) and the procedures that the Depositary
may establish from time to time for such purposes thereunder, and (c) applicable
law.
5. Uncertificated ADSs shall in all material respects be identical to
Certificated ADSs of the same type and class, except that (i) no ADR(s) shall
be, nor shall need to be, issued to evidence Uncertificated ADSs, (ii)
Uncertificated ADSs shall, subject to the terms of the Deposit Agreement (as
supplemented by this letter agreement), be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) each Holder's
ownership of Uncertificated ADSs shall be recorded on the books and records of
the Depositary maintained through the DR System for such purpose and evidence of
such Holder's ownership shall be reflected in periodic statements provided by
the Depositary to each such Holder in accordance with applicable law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish procedures and amend or supplement existing
procedures, as may be deemed reasonably necessary to maintain the DR System and
for the issuance of Uncertificated ADSs on behalf of Holders, provided that such
procedures do not conflict with the terms of the Deposit Agreement (as
supplemented by this letter agreement) or applicable law, (v) a Holder of
Uncertificated ADSs shall not be entitled to any benefits under the Deposit
Agreement (as supplemented by this letter agreement), and such Holder's
Uncertificated ADSs shall not be valid or enforceable for any purpose against
the Depositary or the Company, unless such Holder is registered on the books and
records of the Depositary maintained for such purpose, (vi) the Depositary may,
in connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and cancellation of
Uncertificated ADSs, require the prior receipt of such documentation as the
Depositary may reasonably request, and (vii) upon termination of the Deposit
Agreement (as supplemented by this letter agreement), the Depositary shall not
require Holders of Uncertificated ADSs to affirmatively instruct the Depositary
or to take other action before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.2 of the Deposit Agreement.
6. When issuing ADSs under the terms of the Deposit Agreement, including,
without limitation, issuances pursuant to Sections 4.2, 4.3 and 4.4 thereof, the
Depositary may in its discretion determine to issue Uncertificated ADSs rather
than Certificated ADSs, unless otherwise specifically instructed in writing by
the applicable Holder to issue Certificated ADSs.
7. Holders of Uncertificated ADSs may request the sale of ADSs through the
Depositary, subject to the terms and conditions generally applicable to the sale
of ADSs through the Depositary from time to time (which may be changed by the
Depositary from time to time and notified to the Holders).
8. All provisions and conditions of the Deposit Agreement shall apply to
Uncertificated ADSs to the same extent as to Certificated ADSs, except as
contemplated herein. The Depositary is authorized and directed to take any and
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all actions, and establish any and all procedures, deemed reasonably necessary
to give effect to the terms hereof. Any references in the Deposit Agreement or
any ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless
the context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s), individually or collectively, as the context may require.
9. Except as set forth herein and except as required by applicable law,
the Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of the Deposit Agreement (as supplemented by this letter agreement).
In the event that, in determining the rights and obligations of parties to the
Deposit Agreement (as supplemented by this letter agreement) with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement and (b) the terms hereof, the terms and conditions set forth herein
shall be controlling and shall govern the rights and obligations of the parties
to the Deposit Agreement pertaining to the Uncertificated ADSs.
10. This letter agreement shall be interpreted under, and all the rights
and obligations hereunder shall be governed by, the laws of the State of New
York without regard to the principles of choice of law thereof.
11. The terms of this letter agreement supplement the Deposit Agreement,
and are not intended to materially prejudice any substantial existing rights of
Holders of ADSs and, as a result, notice may, but is not required, to be given
of the terms hereof to Holders of ADSs under the Deposit Agreement.
12. The Company and the Depositary shall make reference to the terms of
this letter agreement, or attach an executed copy hereof to, the next
Registration Statement on Form F-6 filing made with the Securities and Exchange
Commission in respect of the ADSs.
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CITIBANK, NA.,
as Depositary
By: /s/ Emi Mak
--------------------------
Name: Emi X. Xxx
Title: Vice President
Date: November 20, 2007
Acknowledged and Agreed:
TDK CORPORATION (TDK KABUSHIKI KAISHA)
By: /s/ X. Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager
Date: November 20, 2007
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Incumbency Certificates
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(Form of Incumbency Certificate)
TDK CORPORATION (TDK KABUSHIKI KAISHA) INCUMBENCY CERTIFICATE
The undersigned hereby certifies that (i) he is the Manager of Shareholder
Relations of General Affairs Dept of TDK CORPORATION (TDK KABUSHIKI KAISHA)
INCUMBENCY CERTIFICATE (the "Company") and as such he is authorized to execute
this Incumbency Certificate, (ii) Xxxxxxx Xxxxxxx ("Authorized Officer") has
been elected or appointed, is qualified, and is now acting as an officer of the
Company in the capacity indicated below, and that the signature set forth
opposite the Authorized Officer's name is the Authorized Officer's true and
genuine signature, and (iii) the Authorized Officer has all requisite power and
authority to execute and deliver the Letter Agreement dated as of November 20,
2007 (the "Letter"), between the Company and Citibank, N.A., in the name and on
behalf of the Company, that the Authorized Officer has duly executed and
delivered the Letter on behalf of the Company, and that his or her signature on
such Letter is genuine.
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Name Title Phone Signature
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Xxxxxxx Xxxxxxx Manager 00-0-0000-0000 /s/ X. Xxxxxxx
Shareholder Relations
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of the Company this 20 day of November, 2007.
TDK CORPORATION (TDS KABUSHIKI KAISHA)
By: /s/ Xxxx Xxxxxxxx *
----------------------------------
Name: Xxxx Xxxxxxxx
Title: General Manager of General
Affairs Dept.
* Certifying officer should be different from the "Authorized Officer."
