[Conformed Copy]
AMENDMENT NO. 1
dated as of
February 17, 1982
(effective as of February 23, 1982)
TO
Deposit Agreement
Dated as of July 9, 1963
as Amended and Restated
as of March 6, 1981
AMENDMENT dated as of February 17, 1982 to Deposit Agreement dated
as of July 9, 1963 as amended and restated as of March 6, 1981 (herein called
the Deposit Agreement) among Hitachi, Ltd. (Kabushiki Kaisha Hitachi
Seisakusho), incorporated under the laws of Japan (herein called the Company),
Citibank, N.A., a national banking association incorporated and existing under
the laws of the United States of America (herein called the Depositary), and all
holders from time to time of American Depositary Receipts hereunder.
W I T N E S S E T H:
WHEREAS, pursuant to the terms thereof, the Company desires to amend
the Deposit Agreement and the text of the American Depositary Receipts issued
thereunder, all as hereinafter set forth.
NOW, THEREFORE, it is agreed by and between the parties hereto as
follows:
I
The Deposit Agreement is hereby amended as follows:
1.1. Section 1.08 is hereby amended in its entirety to read as
follows:
"Section 1.08. The term "American Depositary Shares" shall mean the
rights represented by the Receipts issued hereunder and the interest in
the Deposited Securities represented thereby. Each American Depositary
Share shall represent 10 shares of Stock and any and all other Deposited
Securities received by the Depositary and at the time held under this
Deposit Agreement in respect to such shares."
1.2. Section 1.17 is hereby amended in its entirety to read as
follows:
"Section 1.17. The term "Old Receipts" shall mean the American
Depositary Receipts evidencing depositary shares, each representing 20, 40
or 80 shares of Stock, as the case may be, issued before February 23,
1982.
1.3. A new Section 1.20 shall be added after Section 1.19 as
follows:
"Section 1.20. The term "Unit" shall mean 1000 shares of Stock or,
if the Articles of Incorporation of Hitachi provide for any other number
of shares of Stock as a unit of shares, such other number of shares of
Stock (as such Articles of Incorporation may be amended from time to
time).
1.4. Section 2.05 is hereby amended to read in its entirety as
follows:
"Section 2.05. "Surrender of Receipts and Withdrawal of Deposited
Securities". Upon surrender at the Corporate Trust office of the
Depositary or at such other offices, if any, as it may designate, of a
Receipt or Receipts for the purpose of withdrawal of the Stock and other
Deposited Securities represented thereby, and upon payment of the fee of
the Depositary for the cancellation of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the holder
of such Receipt or Receipts shall be entitled to delivery, to him or upon
his order, of the amount of Stock and any other Deposited Securities at
the time represented by the deliverable portion of such Receipt or
Receipts (as defined in Section 2.06 (c)). Delivery of such Stock and
other Deposited Securities may be made by the delivery of certificates
registered in the name of such holder or as ordered by him or by the
delivery of certificates properly endorsed or accompanied by proper
instruments of transfer. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt or Receipts surrendered for such purposes may be required
by the Depositary to be properly endorsed in blank or accompanied by
proper instruments of transfer in blank, and the holder thereof shall
execute and deliver to the Depositary a written order directing the
Depository to cause the Stock and any other Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or
persons designated in such order. Thereupon the Depositary shall direct
the Custodian to deliver at the designated office of the Custodian in
Tokyo, Japan, subject to Sections 2.06, 3.01 and 3.02, and to the other
terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
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Depositary as above provided, the amount of Stock and any other Deposited
Securities represented by the deliverable portion of such Receipt or
Receipts, except that the Depositary may make delivery to such person or
persons at the Corporate Trust office of the Depositary of any dividends
or distributions with respect to the Deposited Securities represented by
the deliverable portion of such Receipt or Receipts, or of any proceeds of
sale of any dividends, distribution or rights, which may at the time be
held by the Depositary. Such direction shall be given by letter or, at the
risk and expense of the holder, by cable, telex or facsimile transmission.
At the request and risk and expense of any holder so surrendering a
Receipt or Receipts, and for the account of such holder, the Depositary
shall direct the Custodian to forward a certificate or certificates and
other proper documents of title for the amount of Stock and any other
Deposited Securities represented by the deliverable portion of such
Receipt or Receipts to the Depositary for delivery at the Corporate Trust
office of the Depositary. Such direction shall be given by letter or, at
the request and risk and expense of such holder, by cable, telex or
facsimile transmission."
1.5. Section 2.06 is hereby amended to provide that the first
paragraph thereof be designated as subsection (a) thereof, that the second
paragraph be designated as subsection (b) thereof, and to add a new subsection
(c) after subsection (b) as follows:
"(c) On and after October 1, 1982, upon surrender of a Receipt or
Receipts by a holder to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese
Commercial Code, the Depositary will effect the delivery to such holder of
only that portion of Stock (and any other Deposited Securities relating to
such Stock) comprising a Unit or an integral multiple thereof (the
"deliverable portion" of such Receipt or Receipts). For the purpose of the
foregoing sentence, the deliverable portion shall be determined on the
basis of the aggregate number of shares of Stock represented by the entire
amount of the American Depositary Shares evidenced by the Receipt or
Receipts surrendered by the same holder at the same time. The Depositary
will promptly advise such holder as to the amount of Stock and Deposited
Securities, if any, represented by the non-deliverable portion of such
Receipt or Receipts and shall deliver to such holder a new Receipt
evidencing such non-deliverable portion. In addition, the Depositary shall
notify such holder of the additional amount of American Depositary Shares
which such holder would be required to surrender in order for the
Depositary to effect delivery of all the Stock and Deposited Securities
represented by the American Depositary Shares of such holder."
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1.6. A new Section 5.12 shall be added after Section 5.11 as
follows:
"Section 5.12. Change in Unit. Hitachi agrees that it shall give
notice to record holders of Receipts of any amendment to its Articles of
Incorporation changing the number of shares of Stock previously designated
as a Unit, at least three months prior to the effectiveness of such
amendment. Notwithstanding the foregoing, however, if the number of shares
of Stock proposed to be designated as a Unit pursuant to an amendment to
Hitachi's Articles of Incorporation is a number evenly divisible into the
number of shares of Stock then designated as a Unit, Hitachi shall give
notice to record holders of Receipts of such amendment at least two weeks
prior to the effectiveness of such amendment."
1.7. The parenthetical sentence following the phrase ". . . . . .
American Depositary Shares" above paragraph (1) on Exhibit A (the text of the
American Depositary Receipt) is hereby changed to read as follows:
"(Each such Share representing 10 shares in registered form of
Common Stock each having a par value of 50 yen)"
1.8. The second sentence in paragraph (1) on Exhibit A (the text of
American Depositary Receipt) is hereby amended to read as follows:
"Each such American Depositary Share represents 10 shares of Stock
and any and all other securities, property and cash received by the
Depositary or the Custodian in respect of such Stock and held under the
Deposit Agreement (herein collectively called the Deposited Securities)."
1.9. The reference to the Deposit Agreement in the first sentence of
paragraph (2) on Exhibit A (the text of American Depositary Receipt) which
presently reads ". . . the Deposit Agreement dated as of July 9, 1963 as amended
and restated as of March 6, 1981 (herein called the Deposit Agreement) . . ." be
amended to read:
". . . the Deposit Agreement dated as of July 9, 1963 as amended and
restated as of March 6, 1981 and as further amended as of February 17,
1982 (herein called the Deposit Agreement) . . ."
1.10. The first sentence in paragraph (3) on Exhibit A (the text of
American Depositary Receipt) is hereby amended to read as follows:
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"Upon surrender at the Corporate Trust office, such office presently
being located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, of the
Depositary in New York and payment of the fee of the Depositary provided
in paragraph (10) of this Receipt, and subject to the terms and conditions
of the Deposit Agreement, the holder hereof is entitled to delivery to him
or upon his order of the amount of the Stock and any other Deposited
Securities at the time represented by this Receipt, provided, however,
that on and after October 1, 1982, upon surrender of a Receipt or Receipts
by a holder thereof to the Depositary, as a result of, and to the extent
required by, the operation of applicable provisions of the Japanese
Commercial Code, the Depositary will effect the delivery to such holder of
only that portion of Stock (and any other Deposited Securities relating to
such Stock) comprising a Unit (as said term shall be defined in accordance
with the terms of the Deposit Agreement) or an integral multiple thereof
(the "deliverable portion" of such Receipt or Receipts). The Depositary
will promptly advise such holder as to the amount of Stock and Deposited
Securities, if any, represented by the non-deliverable portion of such
Receipt or Receipts and shall deliver to such holder a new Receipt
evidencing such non-deliverable portion. In addition, the Depositary shall
notify such holder of the additional amount of American Depositary Shares
which such holder would be required to surrender in order for the
Depositary to effect delivery of all the Stock and Deposited Securities
represented by the American Depositary Shares of such holder."
1.11. Each reference in the Deposit Agreement to the "Deposit
Agreement", "this Agreement", "herein", "hereunder", or words of similar meaning
shall mean and be a reference to the Deposit Agreement as amended by this
Amendment and each reference in the Deposit Agreement to an American Depositary
Share or Receipt shall be to the American Depositary Shares and Receipts as such
terms have been amended by this Agreement.
II
2.1. As soon as practicable after the execution of this amendment to
the Deposit Agreement, the Depositary shall notify the record holders of Old
Receipts (i) of the execution of this amendment to the Deposit Agreement, (ii)
that the Old Receipts held by them may be exchanged for Receipts issued
hereunder, and (iii) such other information as the Depositary may deem
appropriate. Upon presentation to the Depositary of any such Old Receipt by or
on behalf of the registered holder thereof together with a duly completed
transmittal form and such other endorsements or accompanied by proper
instruments of transfer as the Depositary may require, the Depositary shall
execute and deliver a Receipt representing the same number of shares of Stock as
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are then represented by such Old Receipt. The Depositary may withhold the
distribution of dividends having a record date on or after the date of the
mailing of such notice to the holders of Old Receipts until such Old Receipts
have been exchanged for Receipts issued hereunder. No fee shall be charged to
the holders of Old Receipts for the exchange for Receipts, except that, in all
cases involving a change of ownership, any required transfer taxes or other such
charges shall be paid by such holders.
III
3.1. The Deposit Agreement and the form of American Depositary
Receipt are hereby ratified and confirmed in all respects and all terms and
provisions thereof, except as amended by this Amendment, shall remain in full
force and effect.
IV
4.1. This Agreement shall become effective as of February 23, 1982
when each of the parties shall have received counterparts of this Agreement
signed by or on behalf of both of them. Upon the effectiveness of this
Agreement, the Deposit Agreement will be automatically amended as set forth
herein. On and after February 23, 1982 the rights and obligations of the parties
hereto shall be governed by this Agreement; provided, however, that the rights
of the parties hereto with respect to the period prior to February 23, 1982
shall continue to be governed
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by the terms of the Deposit Agreement dated as of July 9, 1963 as Amended and
Restated as of March 6, 1981.
IN WITNESS WHEREOF, HITACHI, LTD. and CITIBANK, N.A. have duly
executed this Amendment as of this 17th day of February, 1982.
Hitachi, Ltd.
(Kabushiki Kaisha Hitachi Seisakusho)
By /s/ Katsuaki Suzuki
----------------------------------
Authorized Signatory
Citibank, N.A.
By /s/ Xxxxxx Xxxx
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Vice President
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