Mizuho Financial Group Inc F-3ASR, filed Oct 4, 2024
Mizuho Financial Group Inc (MFG)
As filed with the Securities and Exchange Commission on October 4, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Kabushiki Kaisha Mizuho Financial Group
(Exact name of registrant as specified in its charter)
Mizuho Financial Group, Inc.
(Translation of registrant’s name into English)
| Japan | 98-1028207 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
1-5-5 Otemachi
Chiyoda-ku, Tokyo 100-8176, Japan
+81-3-5224-1111
(Address and telephone number of registrant’s principal executive offices)
Mizuho Bank, Ltd.
1271 Avenue of the Americas
New York, NY 10020
(212) 282-3000
(Name, address, and telephone number of agent for service)
Please send copies of all communications to:
| Takahiro Saito Simpson Thacher & Bartlett LLP Ark Hills Sengokuyama Mori Tower 41st Floor 9-10, Roppongi 1-Chome Minato-ku, Tokyo, 106-0032, Japan +81-3-5562-6214 |
Jon R. Gray Davis Polk & Wardwell LLP Izumi Garden Tower 33F 1-6-1 Roppongi Minato-ku, Tokyo 106-6033, Japan +81-3-5574-2600 |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
PROSPECTUS
Mizuho Financial Group, Inc.
(incorporated in Japan)
Debt Securities
We may offer, from time to time, in one or more offerings, senior debt securities, dated subordinated debt securities or perpetual subordinated debt securities, which we collectively refer to as the “debt securities.”
We may offer and sell any combination of the senior debt securities, the dated subordinated debt securities and the perpetual subordinated debt securities described in this prospectus in different series, at times, in amounts, at prices and on terms to be determined at or prior to the time of each offering. This prospectus describes the general terms of each of the senior debt securities, the dated subordinated debt securities and the perpetual subordinated debt securities and the general manner in which the debt securities will be offered. We will provide the specific terms of the debt securities in supplements to this prospectus. These prospectus supplements will also describe the specific manner in which the debt securities will be offered and may also supplement, update or amend information contained in, or incorporated by reference into, this prospectus. Before you invest in any of the debt securities, you should read this prospectus and any applicable prospectus supplement and any related free writing prospectus that we authorize to be delivered to you, including documents incorporated by reference herein or therein.
The debt securities covered by this prospectus may be offered through one or more underwriters, dealers and agents, or directly to purchasers. The supplements to this prospectus will provide the specific terms of the plan of distribution.
The applicable prospectus supplement will contain information, where applicable, as to any listing on any securities exchange of the debt securities covered by the prospectus supplement.
Investing in our securities involves risks. See “Item 3.D. Key Information—Risk Factors” in our most recent annual report on Form 20-F filed with the U.S. Securities and Exchange Commission (the “SEC”) and any additional risk factors included in the applicable prospectus supplement under the heading “Risk Factors” or our other reports incorporated herein or in any applicable prospectus supplement.
Neither the SEC nor any state securities commission has approved or disapproved of the debt securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Mizuho Securities USA LLC or our other affiliates may use this prospectus and any applicable prospectus supplement in market-making transactions involving the debt securities after the initial sale. See “Plan of Distribution (Conflicts of Interest)—Market-Making Transactions by Affiliates.” Unless you are informed otherwise in the confirmation of sale, this prospectus and any applicable prospectus supplement are being used in a market-making transaction.
The date of this prospectus is October 4, 2024.
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This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell the debt securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the senior debt securities, the dated subordinated debt securities and the perpetual subordinated debt securities that we may offer. Each time we sell debt securities, we will provide a prospectus supplement that will contain specific information about the terms of the debt securities and the offering. The prospectus supplement may also add, update or change information contained in, or incorporated by reference into, this prospectus. The prospectus supplement will supersede this prospectus, or the documents incorporated by reference into this prospectus, to the extent it contains information that is different from, or conflicts with, the information contained in, or incorporated by reference into, this prospectus. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus that we authorize to be delivered to you together with additional information described under the heading “Where You Can Find More Information” in this prospectus, or in the documents incorporated by reference into any applicable prospectus supplement, before purchasing any of our debt securities.
We have not authorized any other person to provide you with any information other than that contained or incorporated by reference in this prospectus or in any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which we have referred you. “Incorporated by reference” means that we can disclose important information to you by referring you to another document filed separately with the SEC. We are not responsible for, and can provide no assurance as to the accuracy of, any other information that any other person may give you. We are not making, nor will we make, an offer to sell securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information appearing in this prospectus or in any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which we have referred you, including any information incorporated by reference herein or therein, is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those respective dates.
In this prospectus and any applicable prospectus supplement, “MHFG,” “we,” “us,” and “our” refer to Mizuho Financial Group, Inc. and, unless the context indicates otherwise, its consolidated subsidiaries. “Mizuho Financial Group” refers to Mizuho Financial Group, Inc. as an individual legal entity. Furthermore, unless the context indicates otherwise, these references are intended to refer to us as if we had been in existence in our current form for all periods referred to herein. We use the word “you” to refer to prospective investors in the debt securities.
Our primary financial statements for SEC reporting purposes are prepared on an annual and semi-annual basis in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”), while our financial statements for reporting in our jurisdiction of incorporation and Japanese bank regulatory purposes are prepared in accordance with accounting principles generally accepted in Japan (“Japanese GAAP”). Unless otherwise specified, for purposes of this prospectus, we have presented our financial information in accordance with U.S. GAAP. Unless otherwise stated or otherwise required by the context, all amounts in our financial statements are expressed in yen.
There are certain differences between U.S. GAAP and Japanese GAAP. For a description of certain differences between U.S. GAAP and Japanese GAAP, see “Item 5. Operating and Financial Review and Prospects—Reconciliation with Japanese GAAP” in our most recent annual report on Form 20-F filed with the SEC. You should consult your own professional advisers for a more complete understanding of the differences between U.S. GAAP, Japanese GAAP and the generally accepted accounting principles of other countries and how those differences might affect the financial information contained or incorporated by reference in this prospectus or any applicable prospectus supplement.
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Financial information for us contained or incorporated by reference herein or in any applicable prospectus supplement is presented in accordance with U.S. GAAP or Japanese GAAP, as specified herein or in such prospectus supplement or in the relevant document being incorporated by reference herein or therein. See “Where You Can Find More Information—Incorporation by Reference” for a list of documents being incorporated by reference herein.
In this prospectus and any applicable prospectus supplement, references to “U.S. dollars,” “dollars” and “$” refer to the lawful currency of the United States, those to “Euro” and “€” refer to the currency of the European Economic and Monetary Union and those to “yen” and “¥” refer to the lawful currency of Japan. This prospectus or any applicable prospectus supplement or the documents incorporated by reference herein or therein may contain a translation of certain Japanese yen amounts into U.S. dollars for your convenience. However, these translations should not be construed as representations that such yen amounts have been, could have been or could be converted into dollars at the relevant rate or at all.
In this prospectus and any applicable prospectus supplement, yen figures and percentages presented in accordance with U.S. GAAP have been rounded to the figures shown, and yen figures and percentages presented in accordance with Japanese GAAP have been truncated to the figures shown, in each case, unless otherwise specified. However, in some cases, figures as of or for the fiscal year ended March 31, 2023 and earlier presented in tables have been adjusted to match the sum of the figures with the total amount, and such figures may also be referred to in the related text. We no longer make such adjustments beginning with figures as of or for the fiscal year ended March 31, 2024 or any interim periods therein, and thus the sum of such figures may not match the total amount.
Our fiscal year end is March 31. References to years not specified as being fiscal years are to calendar years.
In this prospectus, all of our financial information is presented on a consolidated basis, unless we state otherwise.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the financial statements and other documents incorporated by reference in this prospectus contain in a number of places forward-looking statements regarding the intent, belief, current expectations and targets of our management with respect to our financial condition and future results of operations. These statements constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”). In many cases, but not all, we use such words as “aim,” “anticipate,” “believe,” “endeavor,” “estimate,” “expect,” “intend,” “may,” “plan,” “probability,” “project,” “risk,” “seek,” “should,” “strive,” “target” and similar expressions in relation to us or our management to identify forward-looking statements. You can also identify forward-looking statements by discussions of strategy, plans or intentions. These statements reflect our current views with respect to future events and are subject to risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, our actual results may vary materially from those we currently anticipate.
Our actual results or performance could differ materially from those expressed in, or implied by, any forward-looking statements relating to those matters. Accordingly, no assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them do so, what impact they will have on our results of operations, cash flows or financial condition. Except as required by law, we are under no obligation, and expressly disclaim any obligation, to update, alter or otherwise revise any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future events or otherwise.
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Before making a decision to invest in our debt securities, you should carefully consider the risks described under “Risk Factors” in our most recent annual report on Form 20-F, in any additions, supplements or updates to those risk factors in any applicable prospectus supplement under the heading “Risk Factors” and our other reports incorporated herein and in any applicable prospectus supplement, together with all of the other information appearing or incorporated by reference in this prospectus and any applicable prospectus supplement and any related free writing prospectus prepared by or on behalf of us or to which we refer you, in light of your particular investment objectives and financial circumstances.
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We are a joint stock corporation with limited liability under the laws of Japan. We engage in banking, trust banking, securities and other businesses related to financial services. For further information, see “Item 4. Information on the Company” in our most recent annual report on Form 20-F filed with the SEC.
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CAPITALIZATION AND INDEBTEDNESS
The following table sets forth our consolidated capitalization and indebtedness as of March 31, 2024 presented in accordance with U.S. GAAP. You should read this table in conjunction with the consolidated financial statements and related notes incorporated by reference in this prospectus.
| As of March 31, 2024(4) | ||||
| (in millions of yen) | ||||
| Indebtedness: |
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| Short-term borrowings |
¥ | 45,006,508 | ||
| Long-term debt(1)(2)(3) |
16,277,331 | |||
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| Total indebtedness |
¥ | 61,283,839 | ||
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| Equity: |
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| MHFG shareholders’ equity: |
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| Common stock—no par value, 4,800,000,000 shares authorized, 2,539,249,894 shares issued |
5,833,660 | |||
| Retained earnings |
3,120,236 | |||
| Accumulated other comprehensive income, net of tax |
984,578 | |||
| Less: Treasury stock, at cost—Common stock 4,739,805 shares |
(9,403 | ) | ||
| Total MHFG shareholders’ equity |
9,929,071 | |||
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| Noncontrolling interests |
502,116 | |||
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| Total equity |
¥ | 10,431,187 | ||
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| Total capitalization and indebtedness |
¥ | 71,715,026 | ||
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Notes:
| (1) | We regularly issue senior and subordinated notes. We issued an aggregate of ¥230.0 billion of yen denominated unsecured perpetual subordinated notes in April 2024, an aggregate of U.S.$1.5 billion of U.S. dollar denominated senior notes in July 2024, an aggregate of ¥200.0 billion of yen denominated unsecured fixed-term subordinated notes in July 2024, an aggregate of ¥84.5 billion of yen denominated unsecured perpetual subordinated notes in July 2024 and an aggregate of €1.1 billion of Euro denominated senior notes in August 2024. |
| (2) | We redeemed €0.75 billion of Euro denominated senior notes in June 2024, ¥55.0 billion of yen denominated unsecured fixed-term subordinated notes in June 2024, ¥80.0 billion of yen denominated unsecured fixed-term subordinated notes in July 2024, U.S.$0.5 billion of U.S. dollar denominated senior notes in July 2024, €0.5 billion of Euro denominated senior notes in September 2024 and U.S.$0.6 billion of U.S. dollar denominated senior notes in September 2024. |
| (3) | Mizuho Bank redeemed U.S.$0.5 billion of U.S. dollar denominated senior notes in April 2024 and U.S.$0.5 billion of U.S. dollar denominated senior notes in September 2024. |
| (4) | The following foreign currency exchange rate is used in the table above: ¥151.22 = U.S. $1.00. |
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DESCRIPTION OF THE DEBT SECURITIES
The following is a summary of certain general terms and provisions of the senior debt securities, the dated subordinated debt securities and the perpetual subordinated debt securities (collectively, the “debt securities”) that we may offer under this prospectus. The specific terms and provisions of a particular series of senior debt securities, dated subordinated debt securities or perpetual subordinated debt securities to be offered, and the extent, if any, to which the general terms and provisions summarized below apply to such securities, will be described in an applicable prospectus supplement or a related free writing prospectus that we authorize to be delivered in connection with such offering. If there is any inconsistency between the general terms and provisions presented here and those in the applicable prospectus supplement or the related free writing prospectus, those in the applicable prospectus supplement or the related free writing prospectus will apply.
Because this section is a summary, it does not describe every aspect of the senior debt securities, the dated subordinated debt securities or the perpetual subordinated debt securities. It is qualified in its entirety by the provisions of the senior indenture, the dated subordinated indenture and the perpetual subordinated indenture (as described below) and the applicable debt securities issued pursuant thereto, which, or forms of which, have been filed as exhibits to the registration statement of which this prospectus is part, or will be filed or may be further modified by any form that may be filed as exhibits to a current report on Form 6-K in connection with an offering of the relevant series of debt securities. You should refer to those documents for additional information.
General
We may issue senior debt securities from time to time, in one or more series under a senior indenture between us and The Bank of New York Mellon, which we refer to as the “senior trustee,” dated as of September 13, 2016, as amended or supplemented from time to time. Subordinated debt securities may be issued with or without a fixed maturity date. We may issue subordinated debt securities with a fixed maturity date, which we refer to as “dated subordinated debt securities,” from time to time, in one or more series under a subordinated indenture between us and The Bank of New York Mellon, which we refer to as the “dated subordinated trustee,” dated as of September 13, 2021, as amended or supplemented from time to time. We may issue subordinated debt securities without a fixed maturity date, which we refer to as “perpetual subordinated debt securities,” from time to time, in one or more series under a perpetual subordinated indenture to be entered into upon the initial issuance of perpetual subordinated debt securities, between us and The Bank of New York Mellon, which we refer to as the “perpetual subordinated trustee.” The senior indenture, the dated subordinated indenture and the perpetual subordinated indenture are sometimes referred to in this prospectus collectively as the “indentures” and each, individually, as an “indenture,” and the senior trustee, the dated subordinated trustee and the perpetual subordinated trustee are sometimes referred to in this prospectus as the “trustee.” The terms “senior indenture,” “dated subordinated indenture,” “perpetual subordinated indenture” and “indenture” as used herein may, depending on the context, refer to such indenture, as amended or supplemented.
The indentures provide, or will provide, that we may issue debt securities up to an aggregate principal amount as we may authorize from time to time. None of the indentures limit, or will limit, the amount of debt securities that we may issue thereunder, nor contain, or will contain, any limitations on the amount of other indebtedness or other liabilities that we or any of our subsidiaries may incur.
The senior debt securities of each series will constitute direct, unconditional, unsubordinated and unsecured obligations of Mizuho Financial Group and at all times rank pari passu and without preference among themselves and with all other unsecured obligations, other than subordinated obligations, of Mizuho Financial Group (except for statutorily preferred exceptions) from time to time outstanding.
The dated subordinated debt securities of each series will constitute direct, unconditional, subordinated and unsecured obligations of Mizuho Financial Group and at all times rank pari passu and without preference among
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themselves and at least equally and ratably with all other present and future unsecured, unconditional and dated subordinated obligations of Mizuho Financial Group (including obligations in respect of dated subordinated guarantees provided by Mizuho Financial Group), and in priority to the rights and claims of holders of all present and future unsecured, undated, conditional and subordinated obligations of Mizuho Financial Group (including those in respect of perpetual subordinated notes issued by Mizuho Financial Group, or the perpetual subordinated debt securities) and holders of all classes of equity (including holders of preference shares (if any)) of Mizuho Financial Group. The nature and extent of the subordinated ranking of, and the other subordination provisions applicable to, a series of dated subordinated debt securities will be described in the applicable prospectus supplement or the free writing prospectus relating to such series of dated subordinated debt securities.
The perpetual subordinated debt securities of each series will constitute direct, conditional, subordinated and unsecured obligations of Mizuho Financial Group and at all times rank pari passu and without preference among themselves and at least equally and ratably with all other present and future unsecured, undated, conditional, and subordinated obligations of Mizuho Financial Group (including obligations in respect of undated subordinated guarantees provided by Mizuho Financial Group) and in priority to the rights and claims of holders of all classes of equity (including holders of preference shares (if any)) of Mizuho Financial Group. The nature and extent of the subordinated ranking of, and the other subordination provisions applicable to, a series of perpetual subordinated debt securities will be described in the applicable prospectus supplement or the free writing prospectus relating to such series of perpetual subordinated debt securities.
The perpetual subordinated debt securities will be our perpetual obligations in respect of which there is no fixed maturity or mandatory redemption date.
Terms Specified in the Applicable Prospectus Supplement or the Related Free Writing Prospectus
The applicable prospectus supplement or the related free writing prospectus will specify, if applicable, the following terms of and other information relating to a particular series of debt securities being offered. Such information may include:
| • | The issue date of the debt securities; |
| • | The title and type of the debt securities; |
| • | The ranking of the debt securities, including subordination terms for the dated subordinated debt securities and the perpetual subordinated debt securities; |
| • | The initial aggregate principal amount of the debt securities being issued and any limits on the total aggregate principal amount of such debt securities; |
| • | The issue price of the debt securities; |
| • | The denominations in which the debt securities will be issuable; |
| • | The currency in which the debt securities are denominated or in which principal, premium, if any, and interest, if any, is payable; |
| • | The date or dates on which the principal and premium of the debt securities, if any and to the extent applicable, is payable; |
| • | The rate or rates (which may be fixed or variable) at which the debt securities will bear interest, or the manner of calculating such rate or rates, if applicable; |
| • | The date or dates from which such interest will accrue, the interest payment dates on which such interest, if any and to the extent applicable, will be payable or the manner of determination of such interest payment dates and the related record dates; |
| • | If the amount of principal or any premium or interest on the debt securities may be determined with reference to an index that is based on a coin or currency other than that in which the debt securities are |
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| denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the manner in which such amounts will be determined, to the extent permitted under applicable regulatory capital or other requirements of the Financial Services Agency of Japan, or the FSA, or other applicable regulatory authority; |
| • | The manner in which and the place or places where, if applicable, principal, premium, if any, and interest will be payable; |
| • | The right or requirement, if any, to extend the interest payment periods or defer or cancel the payment of interest and the duration and effect of that extension, deferral or cancellation; |
| • | If applicable, any other or different events of default, modification or elimination of any breaches or acceleration rights or covenants with respect to a series of debt securities, if different from the provisions applicable to such securities set forth in this prospectus, and the nature and extent of the subordinated ranking of, and the other subordination provisions applicable to, a series of dated subordinated debt securities or perpetual subordinated debt securities and any terms required by or advisable under applicable laws or regulations or rating agency criteria, including laws and regulations relating to attributes required for the debt securities to qualify as capital or certain liabilities for regulatory, rating or other purposes; |
| • | Any conversion or exchange features of the debt securities; |
| • | The circumstances under which we will pay additional amounts on the debt securities for any tax, assessment or governmental charge withheld or deducted, if different from the provisions applicable to such debt securities set forth in this prospectus; |
| • | The period or periods within which, the price or prices at which and the terms and conditions upon which debt securities may be repurchased, redeemed, repaid or prepaid in whole or in part, at our option; |
| • | If applicable, the circumstances under which the holders of the debt securities may demand repayment of the debt securities prior to the stated maturity date or otherwise and the terms and conditions thereof, to the extent permitted under applicable regulatory capital or other requirements of the FSA, or other applicable regulatory authority; |
| • | The identity of any agents for the debt securities, including trustees, depositaries, authenticating, calculating or paying agents, transfer agents or registrars of any series; |
| • | Any restrictions applicable to the offer, sale or delivery of the debt securities; |
| • | Any provisions for the discharge of our obligations relating to the debt securities, if different from the provisions set forth in this prospectus; |
| • | Material U.S. federal or Japanese tax considerations; |
| • | If the debt securities will be issued in other than book-entry form; |
| • | Any listing of the debt securities on a securities exchange; |
| • | The terms and conditions under which we will be able to “reopen” a previous issue of a series of debt securities and issue additional debt securities of that series, if different from the provisions set forth in this prospectus; |
| • | The terms of the loss absorption provisions of the dated subordinated debt securities and the perpetual subordinated debt securities, including, if applicable, write-down and cancellation provisions, going concern write-down provisions and write-up provisions, and any other provisions relevant thereto; |
| • | Any write-down, write-up, bail-in or other provisions applicable to a particular series of debt securities required by, relating to or in connection with, applicable regulatory capital or other requirements of the FSA, or other applicable regulatory authority; and |
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| • | Any other specific terms or conditions applicable to a particular series of debt securities being offered, which shall not be inconsistent with the provisions of the relevant indenture. |
The senior debt securities and the dated subordinated debt securities may be issued as original issue discount debt securities. Original issue discount debt securities bear no interest or bear interest at below-market rates and may be sold at a discount below their stated principal amount. The applicable prospectus supplement or the related free writing prospectus will contain information relating to any material income tax, accounting, and other special considerations applicable to such securities.
Further Issuances
Mizuho Financial Group reserves the right, from time to time, without the consent of the holders of the debt securities of a particular series, to issue additional debt securities on terms and conditions identical to those of a series offered by this prospectus and the applicable prospectus supplement, which additional debt securities shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the debt securities of such series; provided however that, in the case of the senior debt securities or the dated subordinated debt securities, Mizuho Financial Group shall not issue any further debt securities with the same CUSIP, ISIN or other identifying number as that series of debt securities unless such further debt securities will be treated as fungible with that series of debt securities for U.S. federal income tax purposes. Mizuho Financial Group may also, without the consent of the holders of the outstanding debt securities, issue other debt securities under the indentures as part of a separate series that have different terms from the debt securities offered hereby.
Payment of Additional Amounts
All payments of principal and interest in respect of the debt securities by Mizuho Financial Group shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments, levies or governmental charges of whatever nature imposed or levied by or on behalf of Japan, or any political subdivision of, or any authority in, or of, Japan having power to tax (“Japanese taxes”), unless such withholding or deduction is required by law. In that event, Mizuho Financial Group shall pay to the holder of each debt security such additional amounts (all such amounts being referred to herein as “additional amounts”) as may be necessary so that the net amounts received by it after such withholding or deduction shall equal the respective amounts which would have been receivable in respect of such debt security in the absence of such withholding or deduction.
However, no such additional amounts shall be payable in relation to any such withholding or deduction in respect of any payment on a debt security:
| (i) | to or on behalf of a holder or beneficial owner of a debt security who is an individual non-resident of Japan or a non-Japanese corporation and is liable for such Japanese taxes in respect of such debt security by reason of its (a) having some connection with Japan other than the mere holding of such debt security, or (b) being a person having a special relationship with Mizuho Financial Group (a “specially-related person of Mizuho Financial Group”) as described in Article 6, Paragraph 4 of the Special Taxation Measures Act of Japan (Act No. 26 of 1957, as amended; the “Special Taxation Measures Act”); |
| (ii) | to or on behalf of a holder or beneficial owner of a debt security (a) who would be exempt from any such withholding or deduction but who fails to comply with any applicable requirement to provide certification, information, documents or other evidence concerning its nationality, residence, identity or connection with Japan, including any requirement to provide interest recipient information (as defined below) or to submit a written application for tax exemption (as defined below) to Mizuho Financial Group or a paying agent, as appropriate, or (b) whose interest recipient information is not duly communicated through the participant (as defined below) and the relevant international clearing organization to a paying agent; |
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| (iii) | to or on behalf of a holder or beneficial owner of a debt security who is for Japanese tax purposes treated as an individual resident of Japan or a Japanese corporation (except for (A) a designated financial institution (as defined below) who complies with the requirement to provide interest recipient information or to submit a written application for tax exemption and (B) an individual resident of Japan or a Japanese corporation who duly notifies (directly or through the participant or otherwise) a paying agent of its status as not being subject to Japanese taxes to be withheld or deducted by Mizuho Financial Group, by reason of such individual resident of Japan or Japanese corporation receiving interest on the relevant debt security through a payment handling agent in Japan appointed by it); |
| (iv) | to or on behalf of a holder or beneficial owner of a debt security who presents a debt security for payment (where presentation is required) more than 30 days after the relevant date (as defined below), except to the extent that such holder or beneficial owner of a debt security would have been entitled to such additional amounts on presenting the same on any date during such 30-day period; |
| (v) | to or on behalf of a holder who is a fiduciary or partnership or is not the sole beneficial owner of the payment of the principal of, or any interest on, any debt security, and Japanese law requires the payment to be included for tax purposes in the income of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner, in each case, who would not have been entitled to such additional amounts had it been the holder of such debt security; or |
| (vi) | in any case that is a combination of any of (i) through (v) above. |
Where a debt security is held through a participant of a clearing organization or a financial intermediary (each, a “participant”), in order to receive payments free of withholding or deduction by Mizuho Financial Group for, or on account of, Japanese taxes, if the relevant beneficial owner of a debt security is (i) an individual non-resident of Japan or a non-Japanese corporation that in either case is not a specially-related person of Mizuho Financial Group or (ii) a Japanese financial institution (a “designated financial institution”) falling under certain categories prescribed by Article 6, Paragraph 11 of the Special Taxation Measures Act and the cabinet order thereunder (together with the ministerial ordinance and other regulations thereunder, the “Act”), all in accordance with the Act, such beneficial owner of a debt security must, at the time of entrusting a participant with the custody of the relevant debt security, provide certain information prescribed by the Act to enable the participant to establish that such beneficial owner of a debt security is exempted from the requirement for Japanese taxes to be withheld or deducted (the “interest recipient information”) and advise the participant if such beneficial owner of a debt security ceases to be so exempted, including the case where the relevant beneficial owner of the debt security who is an individual non-resident of Japan or a non-Japanese corporation becomes a specially-related person of Mizuho Financial Group.
Where a debt security is not held by a participant, in order to receive payments free of withholding or deduction by Mizuho Financial Group for, or on account of, Japanese taxes, if the relevant beneficial owner of a debt security is (i) an individual non-resident of Japan or a non-Japanese corporation that in either case is not a specially-related person of Mizuho Financial Group or (ii) a designated financial institution, all in accordance with the Act, such beneficial owner of a debt security must, prior to each date on which it receives interest, submit to Mizuho Financial Group or a paying agent, as appropriate, a written application for tax exemption (hikazei tekiyo shinkokusho) (a “written application for tax exemption”) in the form obtainable from Mizuho Financial Group or any paying agent, as appropriate, stating, among other things, the name and address (and, if applicable, the Japanese individual or corporation ID number) of such beneficial owner of a debt security, the title of the debt securities, the relevant interest payment date, the amount of interest payable and the fact that such beneficial owner of a debt security is qualified to submit the written application for tax exemption, together with documentary evidence regarding its identity and residence.
As used in this section, the “relevant date” means the date on which any payment in respect of a debt security first becomes due, except that, if the full amount of the moneys payable has not been duly received by the paying agent on or prior to such due date, it means the date on which, the full amount of such moneys having been so received, notice to that effect is duly given to the holders in accordance with the indenture.
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The obligation to pay additional amounts shall not apply to (i) any estate, inheritance, gift, sales, excise, transfer, personal property or any similar tax, assessment or other governmental charge or (ii) any tax, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments of principal or interest on the debt securities; provided that, except as otherwise set forth in the debt securities and the indenture, Mizuho Financial Group shall pay all stamp and other duties, if any, which may be imposed by Japan, the United States or any respective political subdivision or any taxing authority thereof or therein, with respect to the indenture or as a consequence of the issuance of the debt securities.
In addition, no additional amounts will be payable for or on account of any deduction or withholding imposed pursuant to Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the U.S. Treasury regulations thereunder and any other official guidance thereunder (“FATCA”), any intergovernmental agreement entered into with respect to FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing, or relating to, FATCA, similar legislation under the laws of any other jurisdiction, or any such intergovernmental agreement.
References to principal or interest in respect of the debt securities shall be deemed to include any additional amounts due in respect of Japanese taxes which may be payable as set forth in the debt securities and the indenture.
Events of Default and Events of Acceleration
Senior Debt Securities
An event of default with respect to any series of senior debt securities is defined under the senior indenture as any one or more of the following events, subject to modification in a supplemental indenture, each of which we refer to in this prospectus and the applicable prospectus supplement or free writing prospectus as an event of default, having occurred and be continuing:
| (i) | default by Mizuho Financial Group in the payment when due of the interest or principal in respect of any of the senior debt securities of such series and the continuance of any such default for a period of 30 days after the date when due, unless Mizuho Financial Group shall have cured such default by payment within such period; |
| (ii) | Mizuho Financial Group shall fail duly to perform or observe any other term, covenant or agreement contained in any of the senior debt securities of such series or in the senior indenture in respect of the senior debt securities of such series for a period of 90 days after the date on which written notice of such failure, requiring Mizuho Financial Group to remedy the same, shall have been given first to Mizuho Financial Group (and to the trustee in the case of notice by holders referred to in “—Acceleration Upon an Event of Default” below) by the senior trustee or holders of at least 25% in principal amount of the then outstanding senior debt securities of such series (such notification must specify the event of default, demand that it be remedied and state that the notification is a “notice of default” hereunder); |
| (iii) | a decree or order by any court having jurisdiction shall have been issued adjudging Mizuho Financial Group bankrupt or insolvent or approving a petition seeking reorganization under the Bankruptcy Act of Japan (Act No. 75 of 2004, as amended; the “Bankruptcy Act”), the Civil Rehabilitation Act of Japan (Act No. 225 of 1999, as amended; the “Civil Rehabilitation Act”), the Corporate Reorganization Act of Japan (Act No. 154 of 2002, as amended; the “Corporate Reorganization Act”), the Companies Act of Japan (Act No. 86 of 2005, as amended; the “Companies Act”) or any other similar applicable law of Japan, and such decree or order shall have continued undischarged or unstayed for a period of 60 days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of Mizuho Financial Group, or of all or substantially all of its property or for the winding-up or liquidation of its affairs, shall have been issued, and such decree or order shall have continued undischarged or unstayed for a period of 60 days; or |
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| (iv) | Mizuho Financial Group shall institute proceedings seeking adjudication of bankruptcy or seeking reorganization under the Bankruptcy Act, the Civil Rehabilitation Act, the Corporate Reorganization Act, the Companies Act or any other similar applicable law of Japan, or shall consent to the institution of any such proceedings or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of itself or of all or substantially all of its property, or an effective resolution shall have been passed by Mizuho Financial Group for the winding up or dissolution of its affairs, other than for the purpose of an amalgamation or merger, provided that the continuing or successor corporation in such amalgamation or merger has effectively assumed the obligations of Mizuho Financial Group under the senior debt securities of such series and the senior indenture. |
Provision and Withholding of Notice of Default. Pursuant to the senior indenture, the senior trustee shall give notice to the holders of the relevant series of senior debt securities of all defaults known to the senior trustee which have occurred. The senior trustee shall transmit the notice within 90 days after the occurrence of an event of default, unless the defaults have been cured before the transmission of such notice. However, except in the case of default in the payment of principal of or interest on the senior debt securities, the senior trustee may withhold notice of default if and so long as responsible officers of the trustee determine in good faith that the withholding of the notice is in the interests of the holders of the relevant series of senior debt securities.
Acceleration Upon an Event of Default. The senior indenture provides that, unless otherwise set forth in a supplemental indenture, if any event of default occurs and is continuing with respect to a series of senior debt securities, either the senior trustee or the holders of not less than 25% in aggregate principal amount of the outstanding senior debt securities of such series, by notice in writing to Mizuho Financial Group (and to the trustee if given by the holders), may declare the principal of and accrued interest on the senior debt securities of such series to be due and payable immediately.
Dated Subordinated Debt Securities
Unless otherwise provided for in a supplemental indenture to the dated subordinated indenture or in the applicable dated subordinated debt securities, under the dated subordinated indenture, in case an “acceleration event” (as defined in the dated subordinated indenture), which are specified events relating to certain bankruptcy, reorganization, civil rehabilitation or other equivalent proceedings or certain winding-up or dissolution in respect of Mizuho Financial Group, shall occur and be continuing, the principal of and all interest then accrued on the dated subordinated debt securities may be declared to be forthwith due and payable, and except as provided above, neither the dated subordinated trustee nor the holders of the dated subordinated debt securities will have any right to accelerate any payment of principal or interest in respect of the dated subordinated debt securities and no other event shall constitute an event of default.
The dated subordinated indenture sets forth terms and conditions on events of acceleration with respect to a series of dated subordinated debt securities.
Perpetual Subordinated Debt Securities
The perpetual subordinated indenture will provide that non-payment of principal of or interest on the perpetual subordinated debt securities or breach of covenants or any other event will not constitute an event of default or an event of acceleration under the perpetual subordinated indenture or the applicable perpetual subordinated debt securities or give rise to any right of the holders or the perpetual subordinated trustee to declare the principal or interest on the perpetual subordinated debt securities to be due and payable or accelerate any payment of such principal or interest, and there are no events of default or circumstances in respect of the perpetual subordinated debt securities that entitle holders or the perpetual subordinated trustee to require that the perpetual subordinated debt securities become immediately due and payable.
The perpetual subordinated indenture will provide upon the occurrence and continuation of a “liquidation event” (to be defined in the perpetual subordinated indenture), that the rights of holders of the perpetual subordinated debt securities will be subordinated pursuant to the subordination provisions set forth therein.
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The perpetual subordinated indenture will set forth terms and conditions on “breaches” (to be defined in the perpetual subordinated indenture) with respect to a series of perpetual subordinated debt securities.
Annulment of Acceleration; Waiver of Defaults; Waiver of Breach
In some circumstances, the holders of a majority in aggregate principal amount of the outstanding debt securities (voting together as a single class) have the right to annul any past declaration of acceleration or waive any past default or “breach” (as that term is to be defined in the perpetual subordinated indenture) and its consequences, as applicable, except a default or “breach,” as applicable, in respect of a covenant or a provision of the relevant indenture that cannot be modified or amended without the consent of the holder of each debt security affected thereby.
Application of Proceeds
Any money collected from Mizuho Financial Group by a trustee under the relevant indenture upon an event of default (in the case of senior debt securities) or any wind-up, bankruptcy or similar proceeding, subject to subordination provisions and write-down provisions that will be described in an applicable prospectus supplement or the related free writing prospectus and set forth in the dated subordinated indenture (in the case of the dated subordinated debt securities) and the perpetual subordinated indenture (in the case of the perpetual subordinated debt securities) shall be applied in the order described below:
| (i) | first, to the payment of costs, fees and expenses to the applicable trustee and any paying agent for the series of debt securities for which money was collected, including reasonable compensation; |
| (ii) | second, if payment is not due on the principal of the series of debt securities for which money was collected, to the payment of interest on such series of debt securities; |
| (iii) | third, if payment in accordance with the relevant indenture is due on the principal of the series of debt securities for which money was collected, to the payment of the whole amount then owing and unpaid upon all of the debt securities of such series for principal and interest, with interest on the overdue principal or the principal as to which a breach has occurred, as the case may be; and in case the money collected shall be insufficient to pay in full the whole amount so due and unpaid upon the debt securities of such series, then to the payment of principal and interest without preference or priority of principal over interest, ratably to the aggregate of such principal and accrued and unpaid interest; and |
| (iv) | finally, to the payment of the remainder, if any, to Mizuho Financial Group or any other person lawfully entitled thereto. |
Indemnification of Trustee for Actions Taken on Behalf of Securityholders
The indentures provide, or will provide, that the trustee with respect to the relevant debt securities shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of such debt securities relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the indentures contain, or will contain, a provision entitling the relevant trustee, subject to the duty of the trustee to act with the required standard of care during a default or “breach,” as the case may be, to be indemnified to its satisfaction by the holders of relevant debt securities under the relevant indenture before proceeding to exercise any right or power at the request of such holders. Subject to these provisions and specified other limitations, the holders of a majority in aggregate principal amount of a series of debt securities outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the relevant trustee, or exercising any trust or power conferred on the relevant trustee.
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Limitation on Suits by Individual Securityholders
The indentures provide, or will provide, that no individual holder of debt securities may institute any action against Mizuho Financial Group under the relevant indenture, unless the following actions have occurred:
| (i) | a holder must have previously given written notice to the trustee of the continuing default, in the case of senior debt securities, or breach, in the case of perpetual subordinated debt securities; |
| (ii) | the holders of not less than 25% in aggregate principal amount of the debt securities of the affected series, with each such series treated as a single class, must have: |
| (a) | made written request to the trustee to institute that action; and |
| (b) | offered the trustee reasonable indemnity; |
| (iii) | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| (iv) | the holders of a majority in principal amount of the debt securities of the affected series, voting as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
However, the right of any holder of debt securities to institute suit for the enforcement of any such payment of overdue principal and interest, or principal and interest as to which breach(es) have occurred, as the case may be, on or after any respective due dates shall not be affected or impaired; provided that, in the case of dated subordinated debt securities, notwithstanding the foregoing, the rights of holders of dated subordinated debt securities specified above are subject to the limitations and suspension of rights triggered by an event triggering any write-down and, in the case of perpetual subordinated debt securities, notwithstanding the foregoing, the rights of holders of perpetual subordinated debt securities specified above are subject to the limitations and suspension of rights resulting from cancellation of interest payment, subordination or any event triggering any going concern write-down, write-down and cancellation. For the avoidance of doubt, nothing shall be construed to impair the effectiveness of, in the case of dated subordinated debt securities, the provisions of subordination and write-down set forth in the dated subordinated indenture or related provisions of the dated subordinated debt securities, or, in the case of perpetual subordinated debt securities, the provisions of going concern write-down, write-down and cancellation, interest payment cancellation or subordination to be set forth in the perpetual subordinated indenture or related provisions of the perpetual subordinated debt securities.
Covenants
Consolidation, Merger, Sale or Conveyance. The indentures contain, or will contain, provisions permitting Mizuho Financial Group, without the consent of the holders of the debt securities, to merge or consolidate with or merge into, or sell, assign, transfer, lease or convey all or substantially all of its properties or assets to any person or persons, provided that (i) Mizuho Financial Group is the surviving party of the consolidation or merger or sale, assignment, transfer, lease or conveyance, or (ii) the successor person or persons that is formed by such consolidation, into which Mizuho Financial Group is merged, or that acquires such properties or assets by the sale, assignment, transfer, lease or conveyance is a joint stock company (kabushiki kaisha) organized under the laws of Japan and assumes Mizuho Financial Group’s obligations on the debt securities and under the indenture and on all series of securities issued thereunder and certain other conditions are met, including that, immediately after giving effect to such transaction, no event of default, in the case of the senior debt securities, no event of acceleration, in the case of the dated subordinated debt securities, and no “bankruptcy event” (to be defined in the perpetual subordinated indenture), in the case of the perpetual subordinated debt securities, has occurred and is continuing.
Before the consummation of the proposed consolidation, merger, sale, assignment, transfer, lease or conveyance, Mizuho Financial Group shall deliver an officer’s certificate, and an opinion of counsel, to the effect that the conditions set forth above and in the indenture have been met. The trustee shall be entitled to rely conclusively and without liability upon such officer’s certificate and opinion of counsel.
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Evidence of Mizuho Financial Group’s Compliance. There are, or will be, provisions in the indentures requiring Mizuho Financial Group to furnish to the trustee each year a brief certificate from its principal executive, financial or accounting officer or any other responsible officer, as applicable, as to his or her knowledge of Mizuho Financial Group’s compliance with all conditions and covenants under the indenture.
Limitation on Actions for Attachment
Each holder of the senior debt securities and the senior trustee acknowledge, accept, consent and agree, for a period of 30 days from and including the date upon which the Prime Minister of Japan confirms that specified item 2 measures (tokutei dai nigo sochi), which are the measures set forth in Article 126-2, Paragraph 1, Item 2 of the Deposit Insurance Act of Japan (Act No. 34 of 1971, as amended) (the “Deposit Insurance Act”) (or any successor provision thereto), need to be applied to Mizuho Financial Group, not to initiate any action to attach any of our assets, the attachment of which has been prohibited by designation of the Prime Minister of Japan pursuant to Article 126-16 of the Deposit Insurance Act (or any successor provision thereto).
Mizuho Financial Group shall, as soon as practicable after the Prime Minister of Japan has confirmed that specified item 2 measures (tokutei dai nigo sochi) need to be applied to Mizuho Financial Group, deliver a written notice of such event to the senior trustee and to the holders of the senior debt securities. Any failure or delay by Mizuho Financial Group to provide such written notice shall not change or delay the effect of the acknowledgement, acceptance, consent and agreement described in the preceding paragraph.
Limited Rights to Set Off by Holders
Subject to applicable law, each holder of the senior debt securities, by acceptance of any interest in the senior debt securities, agrees that, if (a) Mizuho Financial Group shall institute proceedings seeking adjudication of bankruptcy or seeking reorganization under the Bankruptcy Act of Japan (act No. 75 0f 2004, as amended), the Civil Rehabilitation Act of Japan (Act No. 225 of 1999, as amended), the Corporate Reorganization Act of Japan (Act No. 154 of 2002, as amended), the Companies Act of Japan (Act No. 86 of 2005, as amended) or any other similar applicable law of Japan, and as long as such proceedings shall have continued, or a decree or order by any court having jurisdiction shall have been issued adjudging Mizuho Financial Group bankrupt or insolvent or approving a petition seeking reorganization under any such laws, and as long as such decree or order shall have continued undischarged or unstayed, or (b) the Prime Minister of Japan confirms that specified item 2 measures (tokutei dai nigo sochi) need to be applied to Mizuho Financial Group, it will not, and waives its right to, exercise, claim or plead any right of set off, compensation or retention in respect of any amount owed to it by Mizuho Financial Group arising under, or in connection with, the senior debt securities or the senior indenture.
Subject to applicable law, each holder of the dated subordinated debt securities or the perpetual subordinated debt securities, by acceptance of any interest in the dated subordinated debt securities or the perpetual subordinated debt securities, agrees that, in such circumstances as described in the applicable prospectus supplement relating to such dated subordinated debt securities or perpetual subordinated debt securities, it will not, and waives its right to, exercise, claim or plead any right of set off, compensation or retention in respect of any amount owed to it by Mizuho Financial Group arising under, or in connection with, such dated subordinated debt securities or perpetual subordinated debt securities or the relevant indenture.
Permitted Transfer of Assets or Liabilities
Notwithstanding certain requirements under the senior indenture relating to Mizuho Financial Group’s ability to merge or consolidate with or merge into, or sell, assign, transfer, lease or convey all or substantially all of its properties or assets to any person or persons as described in “—Covenants—Consolidation, Merger, Sale or Conveyance”, each holder of the senior debt securities and the senior trustee acknowledge, accept, consent and agree to any transfer of Mizuho Financial Group’s assets (including shares of subsidiaries of Mizuho Financial Group) or liabilities, or any portions thereof, with permission of a Japanese court in accordance with
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Article 126-13 of the Deposit Insurance Act (or any successor provision thereto), including any such transfer made pursuant to the authority of the Deposit Insurance Corporation of Japan to represent and manage and dispose of Mizuho Financial Group’s assets under Article 126-5 of the Deposit Insurance Act (or any successor provision thereto), and that any such transfer shall not constitute a sale, assignment, transfer, lease or conveyance of its properties or assets for the purpose of such requirements.
Discharge
Unless otherwise set forth in a supplemental indenture, Mizuho Financial Group may discharge all of its obligations with respect to any or all series of debt securities, other than as to transfers and exchanges, under each indenture after Mizuho Financial Group has, among other things:
| (i) | paid or caused to be paid, if and to the extent required, the principal of and interest on all of the outstanding debt securities or such series outstanding under the relevant indenture in accordance with their terms; |
| (ii) | delivered to the paying agent or registrar, as applicable, for cancellation all of such outstanding debt securities or such series; |
| (iii) | in the case of dated subordinated debt securities, all securities of a series outstanding under the dated subordinated indenture shall have been cancelled in connection with a write-down pursuant to write-down provisions set forth in the dated subordinated indenture; or |
| (iv) | in the case of perpetual subordinated debt securities, all securities of a series outstanding under the perpetual subordinated indenture shall have been cancelled in connection with a write-down and cancellation pursuant to write-down and cancellation provisions set forth in the perpetual subordinated indenture. |
Modification of the Indenture
In the case of the dated subordinated debt securities or the perpetual subordinated debt securities, no amendment or modification which is prejudicial to any present or future creditor in respect of any ”senior indebtedness” (as such term is defined, or will be defined, with respect to the relevant series of dated subordinated debt securities or perpetual subordinated securities) shall be made to the subordination provision contained in the relevant dated subordinated indenture or perpetual subordinated indenture. No such amendment shall in any event be effective against such creditor.
Modification without Consent of Holders. Mizuho Financial Group and the trustee may enter into supplemental indentures without the consent of the holders of debt securities issued under each indenture to:
| (i) | evidence the assumption by a successor corporation of Mizuho Financial Group’s obligations under the indenture; |
| (ii) | add covenants for the protection of the holders of debt securities; |
| (iii) | cure any ambiguity or correct any inconsistency; |
| (iv) | add to, change or eliminate any of the provisions of the indenture (provided that such addition, change or elimination shall not adversely affect the interests of the holders of any outstanding series of debt securities in any material respect); |
| (v) | establish the forms or terms of the debt securities of any series; |
| (vi) | evidence the acceptance of appointment by a successor trustee; |
| (vii) | in the case of dated subordinated debt securities, allow for the possibility of repayment of principal and interest that is written down pursuant to any write-down, bail-in or other provisions applicable to a |
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| particular series of dated subordinated debt securities, to the extent that Mizuho Financial Group considers that it has become permissible to do so under relevant laws and regulations applicable at the time of modification; |
| (viii) | in the case of perpetual subordinated debt securities, remove, amend or modify the going-concern, viability or bankruptcy write-down provisions or the cancellation of interest payment provisions with respect to any outstanding perpetual subordinated debt securities, provided that such removal, amendment or modification does not adversely affect the interests of holders of the perpetual subordinated debt securities in any material respect or the regulatory capital treatment of the relevant series of perpetual subordinated debt securities; or |
| (ix) | effect any changes to the indentures in a manner necessary to comply with the procedures of The Depository Trust Company (“DTC”) or any applicable clearing system. |
Modification with Consent of Holders. Mizuho Financial Group and the trustee, with the consent of the holders of not less than a majority in aggregate principal amount of each affected series of outstanding debt securities (with each such series voting as one class), may add any provisions to, or change in any manner or eliminate any of the provisions of, the indentures or modify in any manner the rights of the holders of debt securities issued under each indenture; provided, however, in the case of the perpetual subordinated debt securities, except as otherwise required or permitted pursuant to the going concern write-down, write-down and cancellation, interest payment cancellation, or subordination provisions applicable to such perpetual subordinated debt securities, that Mizuho Financial Group and the trustee may not make any of the following changes to the terms of the debt securities, without the consent of each holder that would be affected by the change:
| (i) | extend the final maturity of any senior debt securities or dated subordinated debt securities of any series or of any installment of principal of any such debt securities; |
| (ii) | reduce the principal amount; |
| (iii) | reduce the rate or extend the time of payment of interest; |
| (iv) | reduce any amount payable on redemption; |
| (v) | change the currency or other terms in or under which the principal, including, in the case of senior debt securities or dated subordinated debt securities, any amount of original issue discount, premium, or interest on any debt securities of any series is payable; |
| (vi) | change any of Mizuho Financial Group’s obligations to pay any additional amounts on the debt securities for any tax, assessment or governmental charge withheld or deducted (if any); |
| (vii) | impair the right to receive payment of the principal of and interest on any senior debt securities or dated subordinated debt securities on or after the respective due dates expressed in such senior debt securities or dated subordinated debt securities; |
| (viii) | impair the right to institute suit for the enforcement of any payment on any debt securities when or after due; |
| (ix) | reduce the percentage of any of the debt securities of any particular series, the consent of whose holders is required for modification of the indenture; or |
| (x) | in the case of dated subordinated debt securities or perpetual subordinated debt securities, modify or amend any provisions relating to the agreements to subordinate and terms of subordination of the dated subordinated debt securities or perpetual subordinated debt securities of any particular series pursuant to the dated subordinated indenture or perpetual subordinated indenture. |
Concerning the Trustee
Any trustee appointed pursuant to the indentures will have and will be subject to all of the duties and responsibilities under the relevant indenture and those with respect to an indenture trustee under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
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The indentures provide, or will provide, that upon the occurrence of an event of default with respect to a series of senior debt securities (in the case of senior debt securities), an event of acceleration with respect to a series of dated subordinated debt securities (in the case of the dated subordinated debt securities), or a breach with respect to a series of perpetual subordinated debt securities (in the case of the perpetual subordinated debt securities), the trustee with respect to the relevant debt securities will exercise the rights and powers vested in it by the relevant indenture, using the same degree of care and skill as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. In the absence of such event of default, event of acceleration, or breach, the trustee need only perform those duties that are specifically set forth in the relevant indenture or are applicable pursuant to the Trust Indenture Act.
Subject to the relevant indenture and the provisions of the Trust Indenture Act, the trustee will be under no obligation to exercise any rights, trusts or powers conferred under the relevant indenture or the debt securities for the benefit of the holders of the debt securities, unless the holders have offered to the trustee indemnity and/or security reasonably satisfactory to the trustee against any loss, cost, liability or expense which might be incurred by it in exercising any such rights, trusts or powers.
The indentures contain, or will contain, and the Trust Indenture Act contains, limitations on the rights of the trustee thereunder, should it become a creditor of ours or any of our subsidiaries, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to serve as trustee concurrently under the senior indenture, the dated subordinated indenture and the perpetual subordinated indenture, and to engage in other transactions, provided that if it acquires any conflicting interest (as defined in Section 310(b) of the Trust Indenture Act), it must eliminate such conflict or resign.
The indentures provide, or will provide, that we will indemnify the trustee and each predecessor trustee for, and to hold it harmless against, any loss, liability or expenses arising out of or in connection with the acceptance or administration of the relevant indenture or the trusts thereunder and the performance of such party’s duties thereunder, including properly incurred costs and expenses of defending itself against or investigating any claim of liability, except to the extent such loss, liability or expense is due to the negligence or bad faith of the trustee or such predecessor trustee.
We and our subsidiaries and affiliates may maintain ordinary banking relationships and custodial facilities with any trustee or its affiliates.
Successor Trustee
The indentures provide, or will provide, that the trustee with respect to a series of debt securities may resign or be removed by us, effective upon acceptance by a successor trustee of its appointment. The indentures require or, if applicable, will require, and the Trust Indenture Act requires, that any successor trustee shall be a corporation with a combined capital and surplus of not less than $50,000,000 and shall be a corporation organized and doing business under the laws of the United States or any state or territory or of the District of Columbia. No person may accept its appointment as a successor trustee with respect to the debt securities of a series unless at the time of such acceptance such successor trustee is qualified and eligible under the relevant indenture and the applicable provisions of the Trust Indenture Act.
Repayment of Funds
The indentures provide, or will provide, that all monies paid by Mizuho Financial Group to the trustee or paying agent for a particular series of debt securities for payment of principal or interest on any debt security which remains unclaimed at the end of two years after such payment shall become due and payable will be repaid to Mizuho Financial Group and all liability of the trustee or paying agent with respect thereto will cease, and to the extent permitted by law, the holder of such debt security shall thereafter look only to Mizuho Financial Group for any payment which such holder may be entitled to collect.
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New York Law to Govern
The indentures and the debt securities are, or will be, governed by and construed in accordance with the laws of the State of New York.
Consent to Service of Process and Submission to Jurisdiction
Under the indentures, Mizuho Financial Group irrevocably designates or will designate Mizuho Bank, Ltd. as its authorized agent for service of process in any legal action or proceeding arising out of or relating to the indentures or any debt securities brought in any federal or state court in the County of New York, and Mizuho Financial Group irrevocably submits or will submit to the jurisdiction of those courts.
Methods of Receiving Payments
The principal of, and interest and additional amounts on, the debt securities represented by the Global Notes (as defined below) will be payable in U.S. dollars, unless the applicable prospectus supplement or free writing prospectus will specify otherwise. Subject to the terms of the relevant indenture, the paying agent will hold all sums received by it for the payment of the principal and interest on the debt securities in trust for the benefit of the holders. Mizuho Financial Group will cause the paying agent to pay such amounts received by it, on the dates payment is to be made, directly to DTC.
Book-Entry; Delivery and Form
DTC
The debt securities will initially be issued to investors only in book-entry form. Each series of debt securities will initially be in the form of one or more fully registered global notes (the “Global Notes”). The Global Notes will be issued and registered in the name of Cede & Co., acting as nominee for DTC, which will act as securities depositary for the debt securities. The Global Notes will initially be deposited with The Bank of New York Mellon, acting as custodian for DTC.
Ownership of beneficial interests in a Global Note will be limited to persons who have accounts with DTC (“participants”), or persons who hold interests through participants (including Euroclear and Clearstream). Ownership of beneficial interests in a Global Note will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of participants) and the records of participants (with respect to interests of persons other than participants). Unless and until debt securities in certificated form are issued, the only registered holder will be Cede & Co., as nominee of DTC, or the nominee of a successor depositary.
Investors may hold their interests in a Global Note directly through DTC if they are participants in such system, or indirectly through organizations that are participants in such system, including Euroclear or Clearstream. Euroclear and Clearstream will hold interests in the Global Notes on behalf of their participants through DTC. Beneficial owners will be permitted to exercise their rights only indirectly through DTC, Euroclear, Clearstream and their participants.
DTC advises that it is a limited purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “Clearing Agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities for its participants and facilitates the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of securities certificates. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly (“indirect participants”).
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Euroclear
Euroclear holds securities and book-entry interests in securities for participating organizations and facilitates the clearance and settlement of securities transactions between Euroclear participants, and between Euroclear participants and participants of certain other securities intermediaries through electronic book-entry changes in accounts of such participants or other securities intermediaries. Euroclear provides Euroclear participants, among other things, with safekeeping, administration, clearance and settlement, securities lending and borrowing, and related services. Euroclear participants are investment banks, securities brokers and dealers, banks, central banks, supranationals, custodians, investment managers, corporations, trust companies and certain other organizations. Non-participants in the Euroclear system may hold and transfer book-entry interests in the debt securities through accounts with a participant in the Euroclear system or any other securities intermediary that holds a book-entry interest in the securities through one or more securities intermediaries standing between such other securities intermediary and Euroclear.
Investors electing to acquire, hold or transfer debt securities through an account with Euroclear or some other securities intermediary must follow the settlement procedures of such intermediary with respect to the settlement of secondary market transactions in debt securities. Euroclear will not monitor or enforce any transfer restrictions with respect to the debt securities. Investors that acquire, hold and transfer interests in the debt securities by book-entry through accounts with Euroclear or any other securities intermediary are subject to the laws and contractual provisions governing their relationship with their intermediary, as well as the laws and contractual provisions governing the relationship between such intermediary and each other intermediary, if any, standing between themselves and the individual debt securities.
Euroclear has advised that, under Belgian law, investors that are credited with securities on the records of Euroclear have a co-property right in the fungible pool of interests in securities on deposit with Euroclear in an amount equal to the amount of interests in securities credited to their accounts. In the event of the insolvency of Euroclear, Euroclear participants would have a right under Belgian law to the return of the amount and type of interests in securities credited to their accounts with Euroclear. If Euroclear did not have a sufficient amount of interests in securities on deposit of a particular type to cover the claims of all participants credited with such interests in securities on Euroclear’s records, all participants having an amount of interests in securities of such type credited to their accounts with Euroclear would have the right under Belgian law to the return of their pro rata share of the amount of interests in securities actually on deposit. Under Belgian law, Euroclear is required to pass on the benefits of ownership in any interests in debt securities on deposit with it (such as dividends, voting rights and other entitlements) to any person credited with such interests in securities on its records.
Distributions with respect to the debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear participants in accordance with the Euroclear terms and conditions.
Clearstream
Clearstream advises that it is incorporated under the laws of Luxembourg and licensed as a bank and professional depositary. Clearstream holds securities for its participating organizations and facilitates the clearance and settlement of securities transactions among its participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of certificates. Clearstream provides to its participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic markets in several countries. Clearstream has established an electronic bridge with the Euroclear operator to facilitate the settlement of trades between Clearstream and Euroclear. As a registered bank in Luxembourg, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector. Clearstream customers are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies and clearing corporations. In the United States, Clearstream customers are limited to securities brokers and dealers and banks, and may include the underwriters of an
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offering of debt securities. Other institutions that maintain a custodial relationship with a Clearstream customer may obtain indirect access to Clearstream. Clearstream is an indirect participant in DTC.
Distributions with respect to debt securities held beneficially through Clearstream will be credited to cash accounts of Clearstream participants in accordance with its rules and procedures.
Other Clearing Systems
We may choose any other clearing system for a particular series of debt securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement or free writing prospectus.
Transfers
Purchases of debt securities within the DTC system must be made by or through DTC participants, which will receive a credit for the debt securities on DTC’s records. The ownership interest of each actual purchaser of debt securities, a beneficial owner of an interest in a Global Note, is in turn to be recorded on the DTC participants’ and indirect participants’ records. Beneficial owners of interests in a Global Note will not receive written confirmation from DTC of their purchases, but they are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the DTC participants or indirect participants through which they purchased the debt securities. Transfers of ownership interests in the debt securities are to be accomplished by entries made on the books of DTC participants and indirect participants acting on behalf of beneficial owners of interests in a Global Note. Beneficial owners of interests in a Global Note will not receive debt securities in certificated form representing their ownership interests in the debt securities unless use of the book-entry system for the debt securities is discontinued.
Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds. Transfers between participants in Euroclear and Clearstream will be effected in the ordinary way in accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the debt securities, cross-market transfers between persons holding, directly or indirectly through DTC, on the one hand, and directly or indirectly through Euroclear or Clearstream participants, on the other, will be effected in DTC in accordance with DTC rules on behalf of the relevant European international clearing system by the relevant European depositary; however, those cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in that system in accordance with its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to the relevant European depositary to take action to effect final settlement on its behalf by delivering or receiving securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the European depositaries.
Because of time zone differences, credits of securities received in Euroclear or Clearstream as a result of a transaction with a person that does not hold the debt securities through Euroclear or Clearstream will be made during subsequent securities settlement processing and dated the clearing system business day following the DTC settlement date. Those credits or any transactions in those securities settled during that processing will be reported to the relevant Euroclear or Clearstream participants on that business day. Cash received in Euroclear or Clearstream as a result of sales of securities by or through a Euroclear participant or a Clearstream participant to a DTC participant will be received with value on the DTC settlement date, but will be available in the relevant Euroclear or Clearstream cash account only as of the clearing system business day following settlement in DTC.
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Limitations on Responsibilities
DTC, Euroclear and Clearstream have no knowledge of the actual beneficial owners of interests in a Global Note. DTC’s records reflect only the identity of the DTC participants to whose accounts those debt securities are credited, which may or may not be the beneficial owners of interests in a Global Note. Similarly, the records of Euroclear and Clearstream reflect only the identity of the Euroclear or Clearstream participants to whose accounts those debt securities are credited, which also may or may not be the beneficial owners of interests in a Global Note. DTC, Euroclear and Clearstream participants and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers.
DTC’s Procedures for Notices, Voting and Payments
So long as DTC, or its nominee, is the registered owner or holder of a Global Note, DTC or that nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the Global Note for all purposes under the debt securities and the indentures. No beneficial owner of an interest in a Global Note will be able to transfer that interest except in accordance with DTC’s applicable procedures, in addition to those provided for under the indentures.
Mizuho Financial Group expects that DTC will take any action permitted to be taken by a holder of the debt securities, including the presentation of debt securities for exchange, only at the direction of one or more of its participants to whose account DTC’s interests in the Global Notes are credited and only in respect of that portion of the aggregate, principal amount of debt securities as to which that participant or participants has or have given the direction.
Conveyance of notices and other communications by DTC to its participants, by those participants to its indirect participants, and by participants and indirect participants to beneficial owners of interests in a Global Note will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
The paying agent will send or forward any notices in respect of the debt securities held in book-entry form to DTC.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to the debt securities unless authorized by a participant in accordance with DTC’s procedures. Under its usual procedures, DTC mails an omnibus proxy to Mizuho Financial Group as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those participants to whose account the debt securities are credited on the record date.
Payment of principal of and interest on the debt securities held in book-entry form will be made to Cede & Co. or another nominee of DTC by the paying agent in immediately available funds. DTC’s practice is to credit its participants’ accounts on the relevant payment date in accordance with their respective holdings shown on DTC’s records unless DTC has reason to believe that it will not receive payments on such payment date. Payments by DTC’s participants and indirect participants to beneficial owners of interests in a Global Note will be governed by standing instructions and customary practices, and will be the responsibility of those participants and indirect participants and not of DTC or Mizuho Financial Group, subject to any statutory or regulatory requirements that may be in effect from time to time. Payment of principal of and interest on the debt securities or other amounts to DTC is the responsibility of Mizuho Financial Group, disbursement of these payments to participants is the responsibility of DTC, and disbursement of those payments to the beneficial owner of an interest in a Global Note is the responsibility of participants and indirect participants.
Although DTC, Euroclear and Clearstream are expected to follow the foregoing procedures in order to facilitate transfers of interests in a Global Note among participants of DTC, Euroclear and Clearstream, they are under no
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obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither Mizuho Financial Group nor the trustees, the registrar or the paying agent will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their respective operations.
Exchange of Global Notes for Certificated Debt Securities
If DTC is at any time unwilling or unable to continue as a depositary for the Global Notes and a successor depositary is not appointed within 90 days, or if there shall have occurred and be continuing an event of default with respect to the senior debt securities or an event of acceleration with respect to the subordinated debt securities, Mizuho Financial Group will issue debt securities in certificated form in exchange for the Global Notes. The certificated debt securities delivered in exchange for beneficial interests in any Global Note will be registered in the names requested by or on behalf of DTC (in accordance with its customary procedures). Any such exchange shall be made free of charge to the beneficial owners of the Global Notes, except that a person receiving certificated debt securities must bear the cost of insurance, postage, transportation and other related costs in the event that such person does not take delivery of such certificated debt securities at the offices of the paying agent. The debt securities are not issuable in bearer form. Except in the limited circumstances described above, owners of interests in the Global Notes will not be entitled to receive physical delivery of debt securities in certificated form.
Payment of principal and interest in respect of the certificated debt securities shall be payable at the office of agency of Mizuho Financial Group in the City of New York which shall initially be the corporate trust office of the trustees, at 240 Greenwich Street, New York, New York 10286, U.S.A. or at the office of the paying agent (which shall initially be The Bank of New York Mellon), provided that, at the option of Mizuho Financial Group, payment may be made by wire transfer or by mailing checks for such interest payable to or upon the written order of such holders at their last addresses as they appear on the registry books of Mizuho Financial Group (in the case of registered securities) or at such other addresses as may be specified in the written orders of the holders; and provided further that, payments of any interest on certificated debt securities (other than at maturity) may be made by the paying agent, in the case of a registered holder of at least $10,000,000 principal amount of debt securities, by electronic funds transfer of immediately available funds to a United States dollar account maintained by the payee, provided such registered holder so elects by giving written notice to the paying agent designating such account, no later than 15 days immediately preceding the relevant date for payment (or such other date as the paying agent may accept in its discretion). Unless such designation is revoked, any such designation made by such holder with respect to such debt securities shall remain in effect with respect to any future payments with respect to such debt securities payable to such holder.
If any debt securities are listed on any securities exchange, such debt securities will be subject to any applicable rules of such securities exchange.
Other Procedures
The applicable prospectus supplement for the dated subordinated debt securities or the perpetual subordinated debt securities may describe procedures for any going concern write-down, write-down and cancellation, write-up, bail-in or other provisions applicable to such dated subordinated debt securities or such perpetual subordinated debt securities.
Registration, Transfer and Exchange of Debt Securities
The registrar will maintain a register with respect to the debt securities. The name of the registered holder of each debt security will be recorded in the register. Mizuho Financial Group, the trustees, the registrar and the paying agent may treat the person in whose name any debt security is registered as the absolute owner of the debt security for all purposes and none of them shall be affected by any notice to the contrary.
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At the option of the holder, subject to the restrictions contained in the debt security and in the indenture, the debt security may be transferred or exchanged for a like aggregate principal amount of debt securities of different authorized denominations, upon surrender for exchange or registration of transfer, at the registrar’s office. Any debt security surrendered for exchange or presented for registration of transfer shall be duly endorsed, or be accompanied by a written instrument of transfer or other documentation in a form identified in the indenture. Debt securities issued upon exchange or transfer shall be registered in the name of the holder requesting the exchange or, as the case may be, the designated transferee or transferees and delivered at the registrar’s office, or mailed, at the request, risk and expense of, and to the address requested by, the designated transferee or transferees. No service charge, other than any cost of delivery not made by regular mail, shall be imposed for any transfer or exchange of debt securities, but Mizuho Financial Group or the registrar may require payment of a sum sufficient to cover any stamp duty, tax or governmental charge or insurance charge that may be imposed in connection with any transfer or exchange of debt securities.
Upon the transfer, exchange or replacement of certificated debt securities bearing the legend, the registrar will deliver only certificated debt securities bearing such legend unless Mizuho Financial Group otherwise consents.
Authenticating Agent
The indentures permit, or will permit, the trustees to appoint an authenticating agent or agents with respect to the debt securities. Such authenticating agent will be authorized to act on behalf of the trustee to authenticate the debt securities and debt securities authenticated by such authenticating agent will be entitled to the benefits of the indenture and valid and obligatory for all purposes as if authenticated by the trustee. The trustee may change the authenticating agent at any time, as more fully described in the indentures.
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The material Japanese tax and U.S. federal income tax consequences relating to the purchase and ownership of the debt securities offered by this prospectus will be set forth in the applicable prospectus supplement.
Certain material consequences under Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and Section 4975 of the Code, relating to the purchase and ownership of the debt securities offered by this prospectus will be set forth in the applicable prospectus supplement.
PLAN OF DISTRIBUTION (CONFLICTS OF INTEREST)
General
We may offer the debt securities described in this prospectus in one or more of the following ways from time to time:
| • | to or through underwriters or dealers; |
| • | by ourselves directly; |
| • | through agents; |
| • | through one or more special purpose entities; |
| • | through an exchange distribution in accordance with the rules of the applicable exchange; |
| • | through a combination of any of these methods of sale. |
The prospectus supplement relating to an offering of debt securities will set forth the terms of the offering, including:
| • | a description of the transaction and the debt securities to be offered; |
| • | the name or names of any underwriters, dealers or agents; |
| • | the purchase price of the debt securities and the proceeds we will receive from the sale; |
| • | any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation; |
| • | the public offering price; |
| • | any discounts or concessions to be allowed or reallowed or paid to dealers; and |
| • | any securities exchanges on which the debt securities may be listed. |
Any public offering prices, discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering of the debt securities, the debt securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The debt securities may be either offered to the public through underwriting syndicates represented by one or more managing underwriters or by one or more underwriters without a syndicate. Unless otherwise set forth in the prospectus supplement, the underwriters will not be obligated to purchase debt securities that are offered unless specified conditions are satisfied, and, unless otherwise set forth in the prospectus supplement, if the underwriters do purchase any debt securities, they will purchase all securities that are offered.
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If Mizuho Securities USA LLC or any other broker-dealer affiliate of ours participates in the distribution of our securities, such offering will be conducted in accordance with the applicable requirements of Rule 5121 of the Financial Industry Regulatory Authority’s rules or any successor provisions.
In connection with underwritten offerings of the debt securities offered by this prospectus and in accordance with applicable law and industry practice, underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price of the debt securities offered by this prospectus at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below.
| • | A stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining the price of a security. |
| • | A syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position created in connection with the offering. |
| • | A penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member in connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate covering transactions. |
These transactions may be effected on an exchange or automated quotation system, if the debt securities are listed on that exchange or admitted for trading on that automated quotation system, or in the over-the-counter market or otherwise. Underwriters are not required to engage in any of these activities or to continue these activities if commenced.
If dealers are utilized in the sale of debt securities offered by this prospectus, we will sell the debt securities to the dealers as principals. The dealers may then resell the debt securities to the public at varying prices to be determined by the dealers at the time of resale. The names of the dealers and the terms of the transaction will be set forth in the prospectus supplement relating to that transaction.
Debt securities may be sold directly by us to one or more institutional purchasers, or through agents designated by us from time to time, at a fixed price or prices, which may be changed, or at varying prices determined at the time of sale. Any agent involved in the offer or sale of the debt securities in respect of which this prospectus is delivered will be named, and any commissions payable by us to the agent will be set forth, in the prospectus supplement relating to that offering. Unless otherwise indicated in the applicable prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment.
If so indicated in the applicable prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase offered debt securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. These contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of the contracts.
Underwriters, dealers and agents may be entitled, under agreements with us, to indemnification by us relating to material misstatements or omissions. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, us and our subsidiaries or affiliates in the ordinary course of business.
Each series of debt securities offered by this prospectus will be a new issue of securities and will have no established trading market. Any underwriters to whom offered securities are sold for public offering and sale may make a market in the offered debt securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The debt securities offered by this prospectus may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for any debt securities offered by this prospectus.
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Market-Making Transactions by Affiliates
Mizuho Securities USA LLC or our other affiliates may use this prospectus and any applicable prospectus supplement in market-making transactions involving the debt securities after the initial sale. These transactions may be executed at negotiated prices that are related to market prices at the time of purchase or sale, or at other prices. These affiliates may act as principal or agent in these transactions. These affiliates are not obligated to make a market in any of the debt securities and may discontinue any market-making activities at any time without notice.
The debt securities to be sold in market-making transactions include debt securities to be issued after the date of this prospectus as well as debt securities issued prior to the date of this prospectus.
Information on the trade and settlement dates, as well as the purchase price, for a market-making transaction will be provided to the purchaser in a separate confirmation of sale. Unless you are informed otherwise in the confirmation of sale, this prospectus is being used in a market-making transaction.
The consolidated financial statements of Mizuho Financial Group, Inc. appearing in the annual report of Mizuho Financial Group, Inc. on Form 20-F for the fiscal year ended March 31, 2024, and the effectiveness of the internal control over financial reporting of Mizuho Financial Group, Inc. as of March 31, 2024, have been audited by Ernst & Young ShinNihon LLC, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
Ernst & Young ShinNihon LLC’s address is 1-1-2 Yurakucho, Chiyoda-ku, Tokyo 100-0006, Japan.
The validity of the debt securities with respect to United States federal law and New York State law will be passed upon for us by Simpson Thacher & Bartlett LLP, our United States counsel, and for any underwriters, dealers or agents by Davis Polk & Wardwell LLP, United States counsel for them. Nagashima Ohno & Tsunematsu, our Japanese counsel, will pass upon certain legal matters as to Japanese law for us.
ENFORCEMENT OF CIVIL LIABILITIES
Mizuho Financial Group is a joint stock corporation incorporated with limited liability under the laws of Japan. All of its directors and executive officers are non-residents of the United States. All or a substantial portion of the assets of Mizuho Financial Group and the assets of such non-resident persons are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon us or those persons or to enforce court judgments predicated upon the civil liability provisions of the U.S. federal or state securities laws against us or those persons in the United States. We have been advised by our Japanese counsel, Nagashima Ohno & Tsunematsu, that there is doubt as to the enforceability in Japan, in original actions or in actions for enforcement of judgments of U.S. courts brought before Japanese courts, of civil liabilities predicated solely upon the U.S. federal or state securities laws.
Our agent for service of process is Mizuho Bank, Ltd.
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WHERE YOU CAN FIND MORE INFORMATION
Available Information
This prospectus is part of a registration statement that we filed with the SEC. The registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some of the information included in the registration statement from this prospectus. We are subject to the information requirements of the Exchange Act and, in accordance with the Exchange Act, we file annual reports, special reports and other information with the SEC.
The SEC also maintains an internet site at https://www.sec.gov/ that contains reports, proxy and information statements and other information about issuers, like us, that file electronically with the SEC.
We are currently exempt from the rules under the Exchange Act that prescribe the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. We are not required under the Exchange Act to publish financial statements as frequently or as promptly as are U.S. companies subject to the Exchange Act. We will, however, continue to furnish our shareholders with annual reports containing audited financial statements and will issue interim press releases containing unaudited results of operations as well as such other reports as may from time to time be authorized by us or as may be otherwise required.
Our American Depositary Shares are listed on the New York Stock Exchange under the trading symbol “MFG.”
Incorporation by Reference
The rules of the SEC allow us to incorporate by reference information into this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates by reference:
| • | our annual report on Form 20-F for the fiscal year ended March 31, 2024, filed on June 26, 2024 (File Number 001-33098); |
| • | our current report on Form 6-K, dated July 31, 2024, containing our financial condition and results of operations, presented under Japanese GAAP, as of and for the three months ended June 30, 2024; and |
| • | our current report on Form 6-K, dated August 14, 2024, containing certain information about our capital ratios as of June 30, 2024. |
All subsequent reports filed by us pursuant to Sections 13(a), 13(c) or 15(d) of the Exchange Act, prior to the termination of the offering, shall be deemed to be incorporated by reference into this prospectus. In addition, any Form 6-K subsequently submitted to the SEC specifying that it is being incorporated by reference into this prospectus shall be deemed to be incorporated by reference. Documents incorporated by reference shall become a part of this prospectus on the respective dates the documents are filed or furnished with the SEC.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for the purposes of this prospectus to the extent that a statement contained in this prospectus or in any subsequently filed document which also is or is deemed to be incorporated by reference into this prospectus modifies or supersedes that statement. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of a modifying or superseding statement shall not be deemed an admission for any purposes that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
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Upon written or oral request, we will provide without charge to each person to whom a copy of this prospectus has been delivered, a copy of any document that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may request a copy of these documents by writing or telephoning us at:
Mizuho Financial Group, Inc.
1-5-5 Otemachi, Chiyoda-ku
Tokyo 100-8176, Japan
Attention: Investor Relations Department
Telephone: +81-3-5224-2029
Fax: +81-3-5224-1058
Except as described above, no other information is incorporated by reference in this prospectus, including, without limitation, information on our internet site at https://www.mizuhogroup.com.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Officers and Directors. |
Article 330 and Article 402, Paragraph 3 of the Companies Act of Japan (the “Companies Act”), make the provisions of Articles 643 through 656 of the Civil Code of Japan (the “Civil Code”) applicable to the relationship between us and our directors and executive officers, respectively. Section 10, Chapter 2, Book III of the Civil Code, which consists of Articles 643 to 656, when so applied to the directors or executive officers, among other things, provides in effect that:
| (1) | any director or executive officer of a company may demand advance payment of expenses which are considered necessary for the management of the affairs of such company entrusted to him or her; |
| (2) | if a director or an executive officer of a company has defrayed any expenses which are considered necessary for the management of the affairs of such company entrusted to him or her, he or she may demand reimbursement therefor together with interest thereon from the company; |
| (3) | if a director or an executive officer has assumed an obligation necessary for the management of the affairs entrusted to him or her, he or she may require the company to perform it in his or her place or, if it is not due, to furnish adequate security; and |
| (4) | if a director or an executive officer, without any fault on his or her part, sustains damage through the management of the affairs entrusted to him or her, he or she may demand compensation therefor from the company. |
Under Article 404, Paragraph 4 of the Companies Act, a company may not refuse a demand referred to in subparagraphs (1) through (3) above from a director who serves as member of any of the nominating committee, the audit committee or the compensation committee unless the company establishes that the relevant expense or obligations was or is not necessary for the performance of the director’s duties. The form of underwriting agreement filed as an exhibit to this registration statement provides for indemnification and contribution by the underwriters with respect to certain liabilities of our directors, officers and other controlling persons.
Our directors and executive officers are, to a limited extent, insured under a directors and officers liability insurance policy.
Under the Companies Act, we may exempt, by a resolution of a general meeting of shareholders, our directors and executive officers from liabilities to us arising in connection with their failure to execute their duties if they execute their duties in good faith and without gross negligence, within the limits stipulated by applicable laws and regulations. Our articles of incorporation, in accordance with the Companies Act, allow us to enter into an agreement with outside directors that limits their liabilities incurred in connection with their service. The limitation of liabilities under such agreement, if the outside director performed his or her duty in good faith and without gross negligence, must be the higher of either (i) a pre-determined amount not less than ¥20 million or (ii) the amount prescribed in laws and regulations. Pursuant to the relevant provisions in our articles of incorporation, we have entered into such agreements with all of our outside directors that are currently in office.
| Item 9. | Exhibits. |
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
II-1
| Item 10. | Undertakings. |
The undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (a) | to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, or the Securities Act; |
| (b) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (c) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a), (b) and (c) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered in the post-effective amendment, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | To file a post-effective amendment to the registration statement to include any financial statements required by Item 8A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. |
| (5) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be |
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| deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (6) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (7) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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EXHIBIT INDEX
| * | To be filed, if necessary, by amendment or as an exhibit to a report filed or submitted pursuant to Section 13(a) or 15(d) of the Exchange Act and incorporated by reference herein. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Tokyo, Japan on October 4, 2024.
| MIZUHO FINANCIAL GROUP, INC. | ||
| By: | /s/ Masahiro Kihara | |
| Name: | Masahiro Kihara | |
| Title: | President & Group CEO | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature to this registration statement appears below hereby constitutes and appoints Kenya Koshimizu, Takefumi Yonezawa, Hideki Matsubara, Hiroshi Minegishi, Hiroyuki Terashita and Koji Matsuoka or anyone or more of them, as such person’s true and lawful attorney-in-fact and agent with full power of substitution for such person and in such person’s name, place and stead, in any and all capacities, to sign and to file with the U.S. Securities and Exchange Commission any and all amendments and post-effective amendments to this registration statement, with exhibits thereto and any and all other documents filed in connection with such filings, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
| Name |
Title |
Date | ||
| /s/ Masahiro Kihara Masahiro Kihara |
Member of the Board of Directors; President & Group CEO (Representative Executive Officer) (principal executive officer) |
October 4, 2024 | ||
| /s/ Hidekatsu Take Hidekatsu Take |
Member of the Board of Directors; Deputy President & Senior Executive Officer (Representative Executive Officer); Head of Global Corporate & Investment Banking Company / In Charge of Specially Assigned Matters |
October 4, 2024 | ||
| /s/ Mitsuhiro Kanazawa Mitsuhiro Kanazawa |
Member of the Board of Directors; |
October 4, 2024 | ||
| /s/ Takefumi Yonezawa Takefumi Yonezawa |
Member of the Board of Directors; (principal financial officer and principal accounting officer) |
October 4, 2024 | ||
| /s/ Seiji Imai Seiji Imai |
Member of the Board of Directors; |
October 4, 2024 | ||
| /s/ Hisaaki Hirama Hisaaki Hirama |
Member of the Board of Directors |
October 4, 2024 | ||
| /s/ Ryoji Sato Ryoji Sato |
Member of the Board of Directors |
October 4, 2024 | ||
| /s/ Izumi Kobayashi Izumi Kobayashi |
Member of the Board of Directors |
October 4, 2024 | ||
AUTHORIZED REPRESENTATIVE IN
THE UNITED STATES
| By: | /s/ Howard Wynn | |
| Name: | Howard Wynn | |
| Title: | Managing Director Americas Legal & Compliance Department Mizuho Bank, Ltd. |
as the duly authorized representative of
Mizuho Financial Group, Inc. in the United States
Exhibit 1.1
Mizuho Financial Group, Inc.
(a joint stock company incorporated under the laws of Japan)
FORM OF UNDERWRITING AGREEMENT
[ ], 20[ ]
[Name(s) of Representative(s)]
As Representative(s) of the several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
Subject to the terms and conditions stated herein, Mizuho Financial Group, Inc. (the “Issuer”), a joint stock company incorporated under the laws of Japan, confirms its agreement with the several underwriters named in Schedule A hereto (collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof), with respect to the issue and sale by the Issuer and the purchase by the Underwriters, acting severally and not jointly, of the respective amounts set forth in such Schedule A hereto of [insert description of the securities] ([insert name of securities], [and together with the [insert name(s) of securities], / or] the “Notes”). [insert name(s) of Representative(s)] have agreed to act as representatives of the Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to a [senior indenture dated September 13, 2016]/[subordinated indenture dated September 13, 2021]/[perpetual subordinated indenture [to be] dated [ ], 20[ ]] (the “Indenture”) between the Issuer and The Bank of New York Mellon, as trustee and registrar (the “Trustee”). The Indenture, as used herein, includes any Officer’s Certificates (as defined in the Indenture) establishing the form and terms of the Notes pursuant to [Section 2.03] of the Indenture. The Notes will be issued in book-entry form in the name of [insert name of securities depository], pursuant to a [insert name of agreement], dated before the Closing Time (as defined in Section 2(c) below), between the Issuer and [insert name of securities depository].
The Issuer has prepared and 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 “1933 Act”) an “automatic shelf registration statement”, as defined under Rule 405 under the 1933 Act (“Rule 405”), on Form F-3 (File No. 333-[ ]), including a prospectus, relating to debt securities, including the Notes. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the 1933 Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means any prospectus filed with the Commission pursuant to Rule 424(b) under the 1933 Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the 1933 Act) in connection with confirmation of sales of the Notes. If the Issuer has filed an abbreviated registration statement pursuant to Rule 462(b) under the 1933 Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this agreement (this “Agreement”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the 1933 Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “1934 Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to [ ] [a.m./p.m.] ([insert time zone]), the time when sales of the Notes were first made (the “Time of Sale”), the Issuer had prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated [ ], 20[ ], and each “free-writing prospectus” (as defined pursuant to Rule 405 under the 1933 Act) listed on Annex A hereto.
SECTION 1. Representations and Warranties
| (a) | Representations and Warranties by the Issuer |
The Issuer represents and warrants to each Underwriter as of the date hereof, the Time of Sale, and the Closing Time (as defined below), and agrees with each Underwriter as follows:
| (i) | Preliminary Prospectus |
No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the 1933 Act and did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
| (ii) | Time of Sale Information |
The Time of Sale Information, at the Time of Sale did not, and at the Closing Time will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Time of Sale Information.
| (iii) | Issuer Free Writing Prospectus |
The Issuer has not directly or indirectly prepared, made, used, authorized, approved or referred to and will not directly or indirectly prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the 1933 Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Issuer or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) each “free writing prospectus” (as defined pursuant to Rule 405 under the 1933 Act) listed on Annex A hereto, including a Pricing Term Sheet substantially in the form of Annex B hereto, which constitutes part of the Time of Sale Information and (v) [if any,] any electronic road show or other written communications approved in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the 1933 Act, has been or will be (within the
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time period specified in Rule 433) filed in accordance with the 1933 Act (to the extent required thereby). In addition, each such Issuer Free Writing Prospectus does not conflict with the Time of Sale Information and the Prospectus and, when taken together with the Time of Sale Information at the Time of Sale, did not, and, when taken together with the Prospectus, as then amended or supplemented, if applicable, at the Closing Time, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
| (iv) | Registration Statement and Prospectus |
The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Issuer. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Issuer or related to the offering of the Notes has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and, as then amended or supplemented, if applicable, will comply in all material respects with the 1933 Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and, as then amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Time, the Prospectus, as then amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
| (v) | Incorporated Documents |
When they were filed with the Commission, the documents incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus conformed in all material respects to the requirements of the 1934 Act, and none of such documents contained any 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; and any further documents so filed and incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus after the date hereof but prior to the completion of the offering of the Notes, when such documents are filed with the Commission, will conform in all material respects to the requirements of the 1933 Act or the
3
1934 Act, as applicable, and, when taken together with other information included or incorporated by reference in the Time of Sale Information, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the documents incorporated by reference in the Time of Sale Information.
| (vi) | Status under the 1933 Act |
The Issuer is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined in Rule 405 under the 1933 Act, in each case at the times specified in the 1933 Act in connection with the offering of the Notes.
| (vii) | Independent Accountants of the Issuer |
[Insert name of auditor] are independent public accountants with respect to the Issuer and its subsidiaries within the meaning of the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) (the “FIEL”) and related regulations thereunder and are independent certified public accountants with respect to the Issuer and its subsidiaries within the meaning of the 1933 Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the 1933 Act, who have audited the annual consolidated financial statements and the related notes of the Issuer (the “Annual Financial Statements”) included or incorporated by reference in the Time of Sale Information and the Prospectus and prepared in conformity with accounting principles generally accepted in the United States (“U.S. GAAP”).
| (viii) | Financial Statements |
| (1) | The Annual Financial Statements comply in all material respects with the applicable requirements of the 1933 Act and the 1934 Act and present fairly, in all material respects, the consolidated financial position of the Issuer and its consolidated subsidiaries as of the dates indicated therein, and the results of their operations and changes in their cash flows for the periods specified therein; and the Annual Financial Statements have been prepared in conformity with applicable law and with U.S. GAAP applied on a consistent basis throughout the periods involved, except for the effects of accounting changes as disclosed in the notes included in the Annual Financial Statements. |
| (2) | [The semi-annual consolidated financial statements and the related notes of the Issuer (the “Semi-annual Financial Statements”) included or incorporated by reference in the Time of Sale Information and the Prospectus prepared in conformity with U.S. GAAP comply in all material respects with the applicable requirements of the 1933 Act and the 1934 Act and present fairly, in all material respects, the consolidated financial position of the Issuer and its consolidated subsidiaries as of the dates indicated therein, and the results of their operations and changes in their cash flows for the periods specified therein; and the Semi-annual Financial Statements have been prepared in conformity with applicable law and with U.S. GAAP applied on a consistent basis throughout the periods involved, except for the effects of accounting changes as disclosed in the notes included in the Semi-annual Financial Statements.] |
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| (3) | [The [ ]-month interim consolidated financial statements and the related notes of the Issuer (the “Interim Financial Statements”) included or incorporated by reference in the Time of Sale Information and the Prospectus prepared in conformity with accounting principles generally accepted in Japan (“Japanese GAAP”) present fairly, in all material respects, the consolidated financial position of the Issuer and its consolidated subsidiaries as of the dates indicated therein, and the results of their operations for the periods specified therein; and the Interim Financial Statements have been prepared in conformity with applicable law, if any, and with Japanese GAAP applicable to interim consolidated financial statements applied on a consistent basis throughout the periods involved, except for the effects of accounting changes as disclosed in the notes included in the Interim Financial Statements.] |
| (4) | The selected consolidated financial data of the Issuer included or incorporated by reference in the Time of Sale Information and the Prospectus, presents fairly the information shown therein and has been (i) compiled on a basis consistent with [(x) ]the Annual Financial Statements[, (y) the Semi-annual Financial Statements,] [or (z) the annual or interim consolidated financial statements (including the Interim Financial Statements) of the Issuer prepared in conformity with Japanese GAAP and[, except for the interim consolidated financial statements of the Issuer as of and for the [ ] months ended [ ],] audited or reviewed by [insert name of auditor], in each case] except as described therein or (ii) accurately derived from accounting records maintained by the Issuer for reporting purposes. |
| (5) | [The Japanese GAAP selected annual or interim (if any) figures of Mizuho Bank, Ltd. and Mizuho Trust & Banking Co., Ltd. (collectively, the “Bank Subsidiaries”), whether on a combined or standalone basis, or consolidated or non-consolidated basis, included or incorporated by reference in the Time of Sale Information and the Prospectus present fairly the information shown therein, and such figures of the Bank Subsidiaries (other than with respect to such figures that are described therein as based on managerial accounting records of the Bank Subsidiaries) have been derived and calculated from (i) the relevant consolidated or non-consolidated, as the case may be, annual or interim financial statements of such Bank Subsidiaries audited or reviewed by [insert name of auditor] and prepared in conformity with Japanese GAAP, applied on a consistent basis throughout the periods involved, in each case except as disclosed in the notes to such financial statements or (ii) accounting records maintained by the Bank Subsidiaries for reporting purposes.] |
| (6) | The other financial information of the Issuer and its subsidiaries included or incorporated by reference in the Time of Sale Information and the Prospectus has been derived from the accounting records (including managerial accounting records) of the Issuer and its subsidiaries and presents fairly the information shown thereby. |
| (7) | The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Time of Sale Information and the Prospectus present fairly the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto. |
| (8) | No forward-looking statement (as defined under Section 27A(i)(1) of the 1933 Act and Section 21E(i)(1) of the 1934 Act), contained or made in the Registration Statement, the Time of Sale Information and the Prospectus or an Issuer Free Writing Prospectus has been made or reaffirmed by the Issuer without a reasonable basis or has been disclosed by the Issuer other than in good faith. |
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| (ix) | No Material Adverse Change in Business |
Since the respective dates as of which information is given in the Time of Sale Information and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries (considered as one enterprise), in either case whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Issuer or any subsidiary of the Issuer which are material with respect to the Issuer and its subsidiaries (considered as one enterprise) and (C) there has been no dividend or distribution of any kind declared, paid or made by the Issuer on any class of share capital or capital stock.
| (x) | Due Incorporation and Good Standing |
The Issuer has been duly organized and is validly existing as a joint stock company with limited liability under the laws of Japan; the Issuer has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and the Prospectus and to enter into and perform its obligations under this Agreement, the Indenture and the Notes; no steps have been made for the winding up of the Issuer under the laws of Japan; and the Issuer is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified or in good standing would not result in a Material Adverse Effect.
| (xi) | Incorporation and Good Standing of Principal Subsidiaries |
Each subsidiary of the Issuer specified in the table set out in Schedule B hereto (each a “Principal Subsidiary” and, collectively, the “Principal Subsidiaries”) has been duly incorporated or organized, is validly existing as a corporation and, where such concept is applicable, is in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified or in good standing would not result in a Material Adverse Effect; no steps have been made for the winding up of any Principal Subsidiary under the laws of its jurisdiction of organization; except as otherwise disclosed in the Time of Sale Information and the Prospectus, all of the issued and outstanding capital stock of each Principal Subsidiary owned by the Issuer, directly or through subsidiaries, has been duly authorized and validly issued, is fully paid and non-assessable and is owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the outstanding shares of capital stock of any Principal Subsidiary owned by the Issuer, directly or through subsidiaries, was issued in violation of the preemptive or similar rights of any security holder of such Principal Subsidiary. The Issuer does not have any subsidiary or affiliate which constitutes a “significant subsidiary” (as defined in Rule 1-02 of Regulation S-X) of the Issuer other than those set forth in Schedule B hereto.
| (xii) | Capitalization of the Issuer |
The authorized, issued and outstanding capital stock of the Issuer is as set forth in the Time of Sale Information and the Prospectus under the caption “Capitalization and Indebtedness”
6
(except for subsequent issuances, if any, pursuant to the exercise of convertible securities or options referred to in the Time of Sale Information and the Prospectus). The shares of issued and outstanding capital stock of the Issuer have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Issuer was issued in violation of the preemptive or other similar rights of any security holder of the Issuer. Except as disclosed in the Time of Sale Information and the Prospectus, there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options, or agreements to grant warrants, rights or options, to purchase or to subscribe for, or obligations or commitments of the Issuer or any of the Principal Subsidiaries to create, issue, sell or otherwise dispose of, any capital stock or other equity securities (or any such securities, warrants, rights, options or obligations) of the Issuer or any of the Principal Subsidiaries, except for shares of preferred stock of Mizuho Bank, Ltd. and Mizuho Trust & Banking Co., Ltd. which are owned by the Issuer.
| (xiii) | Authorization of this Agreement |
This Agreement has been duly authorized, executed and delivered by the Issuer and constitutes a valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
| (xiv) | Authorization of the Indenture |
The Indenture has been duly authorized by the Issuer and [constitutes][, when duly executed and delivered by the Issuer and relevant party or parties thereto, will constitute] a valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
| (xv) | Authorization of the Notes |
(i) The Notes have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, at the Closing Time (as defined below), will have been duly executed by the Issuer and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding obligations of the Issuer and (ii) the Notes will be enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and the Notes will be in the form contemplated by, and entitled to the benefits of, the Indenture.
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| (xvi) | Description of the Notes and the Indenture |
The Notes and the Indenture conform or will conform in all material respects to the respective statements relating thereto contained in the Time of Sale Information and the Prospectus and are or will be in substantially the respective forms last delivered to the Underwriters prior to the date of this Agreement.
| (xvii) | Accuracy of Statements |
The statements in each of the Time of Sale Information and the Prospectus under the captions “Description of the Debt Securities”, “Description of the Notes” and “Taxation”, insofar as such statements summarize the provisions of the laws, regulations and documents referred to therein or legal conclusions with respect thereto, fairly summarize such laws, regulations, documents or conclusions in all material respects.
| (xviii) | Absence of Violations, Defaults and Conflicts |
None of the Issuer or any of the Principal Subsidiaries is (i) in violation of its Articles of Incorporation, the Regulations of the Board of Directors or similar organizational documents, (ii) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over any of them or any of their respective assets, properties or operations or (iii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Issuer or any of the Principal Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Issuer or any Principal Subsidiary is subject (collectively, “Agreements and Instruments”) except, in the case of each of clauses (ii) and (iii) above, for such violations or defaults that would not, singly or in the aggregate, result in a Material Adverse Effect; and the issuance of the Notes and the execution, delivery and performance of this Agreement, the Indenture, the Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Issuer in connection with the transactions contemplated hereby or thereby and the consummation of the transactions contemplated herein and in the Time of Sale Information and the Prospectus (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Issuer with its obligations under this Agreement, the Indenture and the Notes have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any Principal Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would, singly or in aggregate, not result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the Articles of Incorporation, the Regulations of the Board of Directors or similar organizational document of the Issuer or any Principal Subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Issuer or any of the Principal Subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Issuer or any Principal Subsidiary.
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| (xix) | Absence of Labor Disputes |
No labor dispute with the employees of the Issuer or any Principal Subsidiary that would, singly or in the aggregate, result in a Material Adverse Effect exists or, to the best knowledge of the Issuer, is imminent.
| (xx) | Absence of Proceedings |
Other than as disclosed in the Time of Sale Information and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the best knowledge of the Issuer, threatened, against or affecting the Issuer or any of its consolidated subsidiaries, which, if determined adversely to the Issuer or any of its consolidated subsidiaries, as the case may be, might reasonably be expected to result, singly or in aggregate, in a Material Adverse Effect or to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement, the Indenture or the Notes or the performance by the Issuer of its obligations hereunder or thereunder; the aggregate of all pending legal or governmental proceedings to which the Issuer or any of its consolidated subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Time of Sale Information and the Prospectus, including ordinary routine litigation incidental to the business, would not, if determined adversely to the Issuer or any of its consolidated subsidiaries, reasonably be expected to result in a Material Adverse Effect.
| (xxi) | Possession of Intellectual Property |
The Issuer and the Principal Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property necessary to carry on the business now operated by them (collectively, “Intellectual Property”), except where the failure to own or possess would not, singly or in the aggregate, result in a Material Adverse Effect, and neither the Issuer nor any of the Principal Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Issuer or any of the Principal Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
| (xxii) | Absence of Manipulation |
None of the Issuer or any of its affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate” and collectively, the “Affiliates”) (provided that the Issuer makes no representation with respect to the Underwriters or any Selling Agent (as defined below) acting in such capacity) has taken, nor will the Issuer or any Affiliate take, 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 the Notes or to facilitate the sale or resale of the Notes.
| (xxiii) | Absence of Further Requirements |
No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the
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performance by the Issuer of its obligations under this Agreement, the Indenture or the Notes or in connection with the offering, issuance or sale of the Notes hereunder or thereunder or the consummation of the transactions contemplated by this Agreement, the Indenture and the Notes, or for the due execution, delivery or performance of this Agreement, the Indenture or the Notes by the Issuer, except (i) such as have been already made or obtained, (ii) [the notification by the Issuer to the Financial Services Agency of Japan (the “FSA”) under the Banking Law of Japan (Act No. 59 of 1981, as amended) (the “Banking Law”), (iii)] any necessary confirmation of, notices or reports by the Issuer to, and consultation by the Issuer with, the [FSA/Financial Services Agency of Japan (the “FSA”)], including those with respect to any [early] redemption or repurchase of the Notes, [if and to the extent required under the then applicable Japanese banking laws or regulations,] (iii) miscellaneous notices and reports under [the Banking Law and ] the Foreign Exchange and Foreign Trade Law of Japan (Law No. 228 of 1949, as amended) (the “Foreign Exchange and Foreign Trade Law”), (iv) certain filing requirements pursuant to the 1933 Act as will be made and (v) the required qualification of the Indenture under the Trust Indenture Act.
| (xxiv) | Possession of Licenses and Permits |
The Issuer and the Principal Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate national, local or foreign regulatory agencies or bodies necessary for the ownership or lease of their respective properties or to conduct the businesses now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Issuer and the Principal Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and none of the Issuer or any of the Principal Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
| (xxv) | Title to Property |
The Issuer and the Principal Subsidiaries have good and marketable title to all real property owned by the Issuer and the Principal Subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Time of Sale Information and the Prospectus or (b) do not, singly or in the aggregate, result in a Material Adverse Effect; and all of the leases and subleases material to the business of the Issuer and the Principal Subsidiaries, considered as one enterprise, and under which the Issuer or any of the Principal Subsidiaries holds properties described in the Time of Sale Information and the Prospectus, are in full force and effect, and neither the Issuer nor any Principal Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Issuer or any Principal Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Issuer or such Principal Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
| (xxvi) | Insurance |
The Issuer and the Principal Subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance is in amounts and insures against such
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losses and risks as each of the Issuer and the Principal Subsidiaries reasonably believes are adequate to protect the Issuer and the Principal Subsidiaries and their respective businesses.
| (xxvii) | IT Systems |
The Issuer and the Principal Subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures and safeguards designed to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all material information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications and databases (collectively, “IT Systems”) and all material data (including all personal, personally identifiable, sensitive, confidential or regulated data) (“Personal Data”) used in connection with their businesses, except where the failure so to implement or maintain would not result in a Material Adverse Effect. To the knowledge of the Issuer, there have been no outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or liability or the duty to notify any other person or that would not result in a Material Adverse Effect. The Issuer and the Principal Subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data.
| (xxviii) | No Restrictions on Principal Subsidiaries |
No Principal Subsidiary is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Issuer, from making any other distribution on such Principal Subsidiary’s capital stock, from repaying to the Issuer any loans or advances to such Principal Subsidiary from the Issuer or from transferring any of such Principal Subsidiary’s properties or assets to the Issuer or to any other Principal Subsidiary.
| (xxix) | No Undisclosed Relationships |
No relationship, direct or indirect, exists between or among the Issuer or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Issuer or any of its subsidiaries, on the other, which is required by the 1933 Act or by the 1933 Act regulations to be described in each of the Registration Statement and the Prospectus which is not so described or is not described as required in the Registration Statement, the Time of Sale Information and the Prospectus.
| (xxx) | Investment Company Act |
The Issuer is not required, or upon (1) the issuance and sale of the Notes as contemplated herein and (2) the application of the respective net proceeds therefrom as described in the Time of Sale Information and the Prospectus, will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the U.S. Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
| (xxxi) | Accounting Controls and Disclosure Controls |
The Issuer and its consolidated subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the 1934 Act) that comply with the requirements of the 1934 Act and have been designed by, or under the supervision of, their respective principal
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executive and principal financial officers, or persons performing similar functions, to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. The Issuer and each Principal Subsidiary maintain a system of internal accounting controls sufficient to provide reasonable assurances that (1) transactions are executed in accordance with management’s general or specific authorization; (2) transactions are recorded as necessary to permit the preparation of financial statements in conformity with U.S. GAAP or Japanese GAAP, as the case may be, and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management’s general or specific authorization; (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (5) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto. [Except as described in the Time of Sale Information and the Prospectus,] since the date of the last respective audited consolidated financial statements of the Issuer, there has been (A) no material weakness or significant deficiency, each as defined in Auditing Standard No. 5, “An Audit of Internal Control Over Financial Reporting that is Integrated with an Audit of Financial Statements” of the Public Company Accounting Oversight Board in the Issuer’s internal control over financial reporting (whether or not remediated) and (B) no change in the Issuer’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Issuer’s internal control over financial reporting. The Issuer and its consolidated subsidiaries employ “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the 1934 Act) that comply with the requirements of the 1934 Act and that are designed to ensure that information required to be disclosed by the Issuer in the reports that it files or submits under the 1934 Act or the FIEL is recorded, processed, summarized and reported, within the time periods specified in the rules and regulations under the 1934 Act or the FIEL, as the case may be, and is accumulated and communicated to the Issuer’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure. The Issuer and its consolidated subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the 1934 Act.
| (xxxii) | Payment of Taxes |
All tax returns of the Issuer and the Principal Subsidiaries required by any applicable law to be filed have been filed and all taxes shown by such returns or otherwise required to be paid have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided, and except for the failure to file returns or to pay taxes that would not, singly or in aggregate, result in a Material Adverse Effect. The income tax returns of the Issuer and the Principal Subsidiaries through the fiscal year ended March 31, 20[ ] have been settled and no assessment in connection therewith has been made, or could reasonably be expected to be made, against the Issuer and the Principal Subsidiaries, except where the failure to settle the returns or the making of the assessment would not, singly or in aggregate, result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Issuer in respect of any income and corporation tax liability of the Issuer and the Principal Subsidiaries for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not, singly or in aggregate, result in a Material Adverse Effect.
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| (xxxiii) | Statistical and Market-Related Data |
Nothing has come to the attention of the Issuer that has caused it to believe that the statistical and market-related data included in the Time of Sale Information or the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
| (xxxiv) | Anti-Corruption Laws |
None of the Issuer or, to the best knowledge of the Issuer, any director, officer, agent, employee, Affiliate or other person acting on behalf of the Issuer or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the UK Bribery Act of 2010, or any equivalent applicable anti-corruption laws, rules or regulations of any other jurisdiction to which the Issuer or any of its subsidiaries is subject (collectively, “Anti-Corruption Laws”) including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any political party or official thereof or any candidate for political office, in contravention of any Anti-Corruption Laws and the Issuer and, to the best knowledge of the Issuer, the Affiliates have conducted their businesses in compliance with Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
The Issuer will not, directly or indirectly, use the proceeds of the offering of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, entity or governmental authority, for the purposes of making any payment to any foreign official in contravention of any Anti-Corruption Laws.
| (xxxv) | Money Laundering Laws |
The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions in which they operate, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency in such jurisdictions (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer, threatened.
| (xxxvi) | No Conflict with OFAC and other Sanctions |
Neither the Issuer nor any of its subsidiaries or, to the best knowledge of the Issuer, any director, officer, employee, agent, Affiliate or person acting on behalf of the Issuer or any of its subsidiaries is currently the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”) nor, except as described in the Time of Sale Information and the Prospectus, is the Issuer or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of comprehensive territorial Sanctions (each, a “Sanctioned Country”); and none of the Issuer or any of its subsidiaries (i) will use the proceeds of the
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offering of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity for the purpose of financing the activities of any person or entity that, at the time of such financing, is the subject of any Sanctions; (ii) will, directly or indirectly, use the proceeds of the transaction in any manner that will result in a violation by any person participating in the transaction, whether as Underwriter or investor, of Sanctions or (iii) will fund or facilitate any activities of or business in any Sanctioned Country, except in the case of (i) and (iii), as would be permissible under relevant Sanctions.
| (xxxvii) | Anti-social Forces |
None of the Issuer, any of its subsidiaries or any officer (yakuin) (which for the purposes of this Section 1(a)(xxxvii) has the same meaning as defined in Article 1, Item 31(a) of Cabinet Office Ordinance on Disclosure of Corporate Information, etc.) of the Issuer or any of its subsidiaries falls within the meaning of “anti-social forces” (hanshakaiteki seiryoku), as defined in Article 2, Item 23 of the Rules Concerning Underwriting, Etc. of Securities of the Japan Securities Dealers Association (“Anti-social Forces”) such as, but not limited to, organized crime groups (bouryokudan); no Anti-social Forces are involved, directly or indirectly, in the management of the Issuer or its subsidiaries; none of the Issuer, any of its subsidiaries or any officer (as defined above) of the Issuer or any of its subsidiaries, through financing or otherwise, regardless of the means, is supporting or involved in, or intends to support or be involved in, the maintenance or operation of any Anti-social Forces or has, or intends to have, any prohibited relationship with any Anti-social Forces knowingly.
| (xxxviii) | Compliance with the Sarbanes-Oxley Act |
There is and has been no failure on the part of the Issuer or any of the Issuer’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
| (xxxix) | [Status of Notes |
[The Notes, when issued, will rank pari passu and without any preference among themselves and at least equally and ratably with all other present and future unsecured, [unconditional]/[conditional] and [dated]/[undated] subordinated obligations of the Issuer; and no event has occurred or circumstance arisen that constitutes or, to the best knowledge of the Issuer, could reasonably be believed to constitute (in each case, whether or not with the giving of notice and/or the passage of time and/or the fulfilment of any other requirement) [a Liquidation Event]/[an Acceleration Event] (as defined in the Indenture). ]The Issuer is not aware of any view or opinion of the FSA that contradicts or conflicts in any material respect with the Issuer’s belief that[, as of the Closing Time (as defined in Section 2(c) hereof), (i) the Notes will qualify as [Tier II capital]/[Additional Tier 1 capital] of the Issuer under the applicable standards set forth in the applicable banking regulations, including, without limitation, the Banking Law and No. 20 of the FSA Public Ministerial Announcement (kokuji) of 2006, as amended, and (ii)] the Notes will be counted in the calculation of the total loss-absorbing capacity (as such term is set forth in “Principles on Loss-absorbing and Recapitalisation Capacity of G-SIBs in Resolution” and “Total Loss-absorbing Capacity (TLAC) Term Sheet” published by the Financial Stability Board on November 9, 2015) of the Issuer.]
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| (xl) | [Listing of the Notes |
The Issuer has made an application for the listing of the Notes on [name of the relevant securities exchange] (the “Relevant Exchange”) and the admission to trading of the Notes on the Relevant Exchange’s market.]
| (xli) | Transfer Taxes |
No stamp, issue, registration, documentary or transfer tax or duty or other similar tax or duty (collectively, “Transfer Taxes”) and no capital gains, income or withholding tax or other tax is payable by or on behalf of the Underwriters to any Japanese taxing or other Japanese governmental authority in connection with (a) the creation, issuance or sale by the Company of the Notes or the delivery of the Notes to the Underwriters in the manner contemplated by this Agreement, (b) assuming that each of the Underwriters is a non-Japanese corporation having no permanent establishment in Japan for Japanese tax purposes, the sale and delivery by the Underwriters of the Notes to purchasers therefrom (“Subsequent Purchasers”) in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus, (c) the execution, delivery or performance of this Agreement outside Japan or (d) the execution, delivery or performance outside Japan of the Indenture or the Notes or the consummation of any of the transactions contemplated therein.
| (xlii) | Withholding Taxes |
Except as described in the Time of Sale Information and the Prospectus, payments made by the Issuer to any holder of the Notes that is an individual non-resident of Japan or non-Japanese corporation (within the meaning given by Japanese tax laws) will not be subject to any withholdings or similar charges for or on account of taxation under the current laws of Japan or any political subdivision of Japan.
| (xliii) | Validity Under the Laws of Japan |
It is not necessary under the laws of Japan or any political subdivision thereof or authority or agency therein in order to enable the Underwriters to enforce its rights under this Agreement that it should, as a result solely of its holding of Notes or as a consequence of the execution, delivery and performance of this Agreement or the purchase or sale of the Notes, be licensed, qualified, or otherwise entitled to carry on business in Japan or any political subdivision thereof or authority or agency therein; each of this Agreement, the Indenture and the Notes is in proper legal form under the applicable laws of Japan and any political subdivision thereof or authority or agency therein for the enforcement thereof against the Issuer; and it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Indenture or the Notes, as the case may be, in Japan or any political subdivision thereof or agency therein that this Agreement, the Indenture or the Notes, as the case may be, be filed or recorded with any court, authority or agency in Japan, or that any stamp, registration or similar taxes or duties be paid to any court, authority or agency of Japan or any political subdivision thereof.
| (xliv) | Choice of Law; Consent to Jurisdiction; Appointment of Agent for Service of Process |
The choice of the law of the State of New York as the governing law of this Agreement, the Indenture and the Notes, as applicable, will be recognized by the courts of Japan; the choice of the law of the State of New York as the governing law of each of this Agreement, the Indenture and the Notes, as applicable, is a valid and effective choice of law; the irrevocable submission
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by the Issuer to the non-exclusive jurisdiction of the State of New York and the United States federal courts located in the City of New York, New York and the irrevocable waiver by the Issuer of any immunity and any objection to the venue of proceedings in such courts and the irrevocable appointment by the Issuer of Mizuho Bank, Ltd. as its agent for service of process as provided in this Agreement is legal, valid and binding on the Issuer under the laws of Japan.
| (b) | Officer’s or Director’s Certificate |
Any certificate signed by any officer or director of the Issuer or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Issuer to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing
| (a) | Notes |
On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Issuer hereby agrees to issue and sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Issuer, the respective aggregate principal amounts of each series of Notes set forth opposite its name on Schedule A, plus any additional principal amount of Notes which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof, at a purchase price of: [(for fixed rate notes) (i) in the case of the [insert name of securities], [ ]% of the principal amount of the [insert name of securities] (which is equal to [ ]% of such principal amount of the [insert name of securities] minus such Underwriter’s commission equal to [ ] basis points of such principal amount)] and [(for floating rate notes) (ii) in the case of the [insert name of securities], [ ]% of the principal amount of the [insert name of securities] (which is equal to [ ]% of such principal amount of the [insert name of securities] minus such Underwriter’s commission equal to [ ] basis points of such principal amount),] in each case payable at the Closing Time (as defined below).
| (b) | Public Offering of the Notes |
The Issuer understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Information. The Issuer acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter (the “Selling Agent”) and that any such Selling Agent may offer and sell Notes purchased by it to or through any Underwriter.
| (c) | Payment |
Payment for, and delivery of certificates for, the Notes shall be made at [ ] [a.m./p.m.] ([insert time zone]) on the [ ]th [insert name of city] Business Day (as defined below) after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than ten [insert name of city] Business Days after such date as shall be agreed upon by the Representatives and the Issuer (such time and date of payment and delivery being herein called the “Closing Time”). “[insert name of city] Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is a day that settlements are allowed to take place on the [insert name of stock exchange] and which is not a day on which banking institutions in [insert name of city] are generally authorized or obligated by law or executive order to close.
Payment shall be made to the Issuer by wire transfer of immediately available funds to a bank account designated by the Issuer, against delivery to [name of one of Representatives] for the respective accounts of
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the Underwriters of certificates for the Notes to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment for, the Notes which it has agreed to purchase. [name of one of Representatives] or its agent, individually and not as a representative of the Underwriters, may (but shall not be obligated to) make payment for the Notes to be purchased by any Underwriter whose funds have not been received by Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. The Notes to be purchased by each Underwriter hereunder will be issued in book-entry form and will be deposited by or on behalf of the Issuer with [insert name of securities depository] or its custodian. The Issuer will deliver the Notes to the Representatives, for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor, by causing [insert name of securities depository] to credit the Notes to the accounts designated by [insert name of securities depository].
| (d) | Issuance Taxes |
The Issuer will bear and pay (i) any Transfer Taxes, including any interest and penalties, on the creation, issuance, sale and delivery of the Notes and the subscription, allocation, distribution and delivery of the Notes to the Underwriters and to the Subsequent Purchasers, in accordance with the terms of this Agreement, and on the execution and delivery of this Agreement and (ii) any value-added tax payable in connection with the expense reimbursement payable by the Issuer pursuant to this Agreement.
| (e) | Denominations; Registration |
Certificates for the Notes shall be in such denominations ([[$]200,000] or integral multiples of [$]1,000 in excess thereof) and registered in such names as the Representatives may request in writing at least two full [insert name of city] Business Days before the Closing Time. The certificates representing the Notes shall be made available for examination and packaging by the Underwriters in [insert name of city] on the last [insert name of city] Business Day prior to the Closing Time.
| (f) | Stabilization |
In connection with the issue and offering of the Notes, one or more of the Underwriters may, to the extent permitted by applicable laws and regulations and in compliance therewith, as principal and not as agent of the Issuer, over-allot and otherwise effect transactions (in the open market or otherwise) with a view to supporting the market price of the Notes at levels higher than those which might otherwise prevail in the open market and such stabilization, if commenced, may be discontinued at any time, and may be brought to an end no later than the earlier of 30 days after the issue date of the Notes and 60 days after the date of the allotment of the Notes. Any profits or losses arising or resulting from any stabilization and/or over-allotment shall be for the account of the Underwriters. The Underwriters acknowledge that the Issuer will not issue more than the total amount of the Notes contemplated to be issued pursuant to this Agreement.
SECTION 3. Covenants
The Issuer covenants with each Underwriter as follows:
| (a) | Required Filings |
The Issuer will file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the 1933 Act and will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the 1933 Act; and the Issuer will file promptly all reports required to be filed by the Issuer with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Prospectus and prior to the completion of the placement of the Notes by the Underwriters, evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement); and the Issuer will furnish copies of the Prospectus
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and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters within a reasonable period of time after the date of this Agreement (but in any event prior to the Closing Time) in such quantities as the Representatives may reasonably request. The Issuer will pay the registration fees for this offering of the Notes within the time period required by Rule 456(b)(1)(i) under the 1933 Act (without giving effect to the proviso therein) and in any event prior to the Closing Time.
| (b) | Delivery of Copies |
The Issuer will deliver, without charge, to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) prior to the completion of the placement of the Notes by the Underwriters, evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. Prior to the completion of the placement of the Notes by the Underwriters, evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement), the Issuer shall update, supplement or amend the Prospectus, through documents subsequently filed by the Issuer with the Commission pursuant to the 1934 Act that are deemed to be incorporated by reference therein or otherwise, so that the Prospectus, as updated, amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
| (c) | Notice and Effect of Material Events |
Prior to the completion of the placement of the Notes by the Underwriters, evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement) or at any time to the extent relating primarily to the offering of the Notes, the Issuer will immediately notify the Representatives, and confirm such notice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of any filing made by the Issuer of information primarily relating to, or containing statements directly relating to, the Notes with any securities exchange or any other regulatory body in Japan or any other jurisdiction (provided, however, that such notice to the Representatives shall not be required for filings that are available on the Issuer’s website); (v) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any of Preliminary Prospectus, the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the 1933 Act; (vi) of the receipt by the Issuer of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose (and the Issuer will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any of the Preliminary Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification of the Notes and, if any such order is issued, the Issuer will use its reasonable best efforts to obtain, as soon as possible, the withdrawal thereof); (vii) of the receipt by the Issuer of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act and (viii) of any material changes in or affecting the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Issuer and its subsidiaries (considered as one enterprise) as a result of which the Time of
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Sale Information, the Prospectus or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Time of Sale Information, the Prospectus, or such Issuer Free Writing Prospectus are delivered to a purchaser, not misleading. In such event or if during such time (i) any event shall occur as a result of which it is necessary, in the reasonable opinion of any of the Issuer, counsel for the Issuer, the Representatives or counsel for the Underwriters, to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus in order that the Registration Statement, the Time of Sale Information or the Prospectus not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances then existing or (ii) it is necessary to amend or supplement the Registration Statement, the Time of Sale Information or the Prospectus to comply with law, the Issuer will forthwith prepare and file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, an amendment or amendments of, or a supplement or supplements to, the Time of Sale Information or the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) (in form and substance satisfactory in the reasonable opinion of counsel for the Underwriters) so that, as so amended or supplemented, the Registration Statement, the Time of Sale Information or the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a Subsequent Purchaser, not misleading or so that the Time of Sale Information or the Prospectus, as amended or supplemented, will comply with applicable law.
| (d) | Amendment and Supplements; Preparation of Pricing Supplement; Issuer Free Writing Prospectus |
Prior to the completion of the placement of the Notes by the Underwriters, evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement) or at any time to the extent any of the following filings, amendments or supplements relate primarily to the offering of the Notes, the Issuer will advise the Representatives promptly of any proposal to file, amend or supplement the Registration Statement, the Issuer Free Writing Prospectus, the Time of Sale Information and the Prospectus and will not effect such filing, amendment or supplement without the consent of the Representatives (which consent shall not be unreasonably withheld). Neither the consent of the Representatives, nor the Representatives’ delivery of any such filing, amendment or supplement, shall constitute a waiver of any of the conditions set forth in Section 5 hereof. The Issuer will prepare the Pricing Term Sheet, in form and substance satisfactory to the Representatives, and shall file such Pricing Term Sheet within the period required by Rule 433(d)(5)(ii) under the 1933 Act following the date the final terms have been established for the offering of the Notes and shall furnish as soon as practicable prior to the Time of Sale to each Underwriter, without charge, as many copies of the Pricing Term Sheet as such Underwriter may reasonably request.
| (e) | Record Retention |
The Issuer will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the 1933 Act.
| (f) | Qualification of Notes for Offer and Sale |
The Issuer will use its best efforts, in cooperation with the Underwriters, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representatives may reasonably designate and to maintain such qualifications in effect as long as required for the sale of the Notes in the relevant jurisdictions; provided, however, that the Issuer shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Issuer will also supply the Underwriters with such
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information as is necessary for the determination of the legality of the Notes for investment under the laws of such jurisdictions as the Representatives on behalf of the Underwriters may reasonably request.
| (g) | Rating of Notes |
The Issuer shall take all reasonable action necessary to enable [insert name(s) of rating agency/agencies] to provide their respective credit ratings of the Notes.
| (h) | Use of Proceeds |
The Issuer will use the net proceeds received by it from the sale of the Notes in the manner specified in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.”
| (i) | [Listing on Securities Exchange |
The Issuer will use its best efforts to have the Notes listed or admitted to trading on the Relevant Exchange and to maintain such listing, or to have the Notes listed on an alternative exchange, while any of the Notes remain outstanding.]
| (j) | [Insert name of securities depository] |
The Issuer will cooperate with the Underwriters and use its best efforts to permit the offered Notes to be eligible for clearance and settlement through the facilities of [insert name of securities depository].
| (k) | Notice to the Minister of Finance |
Following the completion of the procedures set forth in Section 2(c) hereof, the Issuer will submit in a timely manner the reports required to be submitted to the Minister of Finance of Japan through the Bank of Japan under the Foreign Exchange and Foreign Trade Law.
| (l) | No Unlawful Offering |
None of the Issuer, or any person acting with its authority or on its behalf (provided that the Issuer makes no representation with respect to the Underwriters and the Selling Agents acting in such capacity), will engage in any form of advertising or solicitation of interest in the Notes anywhere where such an advertisement or solicitation would be unlawful.
| (m) | No Stabilization |
None of the Issuer, or any of the Affiliates (provided that the Issuer does not covenant with respect to the Underwriters and any Selling Agent acting in such capacity) will take, directly or indirectly, any action designed to cause or to result in, or that will constitute or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Issuer or any of its subsidiaries to facilitate the sale or resale of the Notes.
| (n) | Restriction on Sale of Notes |
During the period commencing on the date hereof and ending at the Closing Time, the Issuer will not, without the prior written consent of the Representatives, directly or indirectly, issue, sell, offer or agree to sell, grant any option for the sale of, or otherwise transfer or dispose of, any other [insert currency]-denominated [senior]/[dated subordinated]/[perpetual subordinated] debt securities of the Issuer.
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| (o) | Public Announcements |
During the period beginning on the date hereof and ending on the earlier of the date 90 days after the Closing Time and the date of the completion of the placement of the Notes, as evidenced by a notice in writing from the Representatives to the Issuer (which written notice must be delivered upon completion of the placement), the Issuer will not, and, to the extent reasonably practicable, will cause all of its subsidiaries and all other parties acting on its behalf not to, issue any public announcement or participate in any press or other financial conference which could reasonably be expected to have a material effect on the distribution of the Notes and which is promptly and reasonably disapproved of by the Representatives after their receipt of notice thereof (which notice must be provided by the Issuer reasonably in advance of such announcement or participation), except for such announcement or disclosure that is required to be made by the Issuer or the Affiliates in accordance with applicable law or in accordance with the rules of any applicable stock exchange after providing notice thereof to the Representatives.
| (p) | Expiration of Registration Statement |
If the third anniversary of the initial effective date of the Registration Statement occurs before all the Notes have initially been sold by the Underwriters (of which the Representatives will notify the Issuer promptly after the completion of the initial sale), then prior to such third anniversary the Issuer, if it has not already done so and is eligible to do so, will file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
| (q) | Furnishing of Earnings Statement |
The Issuer will make generally available to holders of the Notes and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the 1933 Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Issuer occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
SECTION 4. Payment of Expenses
| (a) | Expenses |
Unless otherwise agreed in writing, the Issuer agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, filing, printing and delivery of the Registration Statement, the Preliminary Prospectus, the Time of Sale Information or the Prospectus (including financial statements and exhibits) as originally made and of each amendment or supplement thereto, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Issuer and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Notes (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities reasonably requested by the Representatives (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters (if any), the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Notes, (iii) the preparation, issuance and delivery of the certificates for the Notes to the Underwriters, including any Transfer Taxes payable upon the issuance, sale and delivery of the Notes as specified in Section 2 hereof and any charges of [insert name of securities depository] in connection therewith, (iv) the fees and disbursements of the Issuer’s counsel, accountants and other advisors, (v) the fees and disbursements of the Underwriter’s counsel, (vi) the qualification of the Notes under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the
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preparation of the Blue Sky Memorandum and any supplement thereto, (vii) all fees and expenses of the Trustee, and any agent related to the Notes, including the fees and disbursements of counsel for the Trustee and such entities in connection with the Indenture and the Notes, (viii) the costs and expenses of the Issuer relating to investor presentations on any “road show” undertaken in connection with the marketing of the Notes (if any), including, without limitation, expenses associated with the production of road show or investor presentation slides and graphics, fees and expenses of any consultants engaged in connection with the road show or investor presentations, [(ix) any fees payable in connection with the listing of the Notes on the Relevant Exchange,] (x) any expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority (if any), and the approval of the Notes for book-entry transfer by [insert name of securities depository], (xi) any fees payable in connection with the rating of the Notes, (xii) any filing fees incident to and in connection with the offering and sale of the Notes and (xiii) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Notes made by the Underwriters caused by a breach of the representation contained in Sections 1(a)(i) to 1(a)(v) hereof.
| (b) | Termination of Agreement |
If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5 or Section 10(a)(i) hereof, the Issuer shall reimburse the Underwriters for all of their out of pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of the Underwriters’ Obligations
The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Issuer contained herein and in certificates of any officer of the Issuer or any of its subsidiaries, delivered pursuant to the provisions hereof, to the performance by the Issuer by or at the Closing Time, of its covenants and other obligations contained herein, and to the following further conditions:
| (a) | Opinions of Counsel for the Issuer |
At or before the Closing Time, the Representatives shall have received the favorable opinions and disclosure letters of (i) Simpson Thacher & Bartlett LLP, U.S. counsel for the Issuer and (ii) Nagashima Ohno & Tsunematsu, Japanese counsel for the Issuer, each dated as of the Closing Time and in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters, to the effect set forth in Exhibit A-1, Exhibit A-2, Exhibit B-1 and Exhibit B-2 hereto, respectively.
| (b) | Opinions of Counsel for Underwriters |
At or before the Closing Time, the Representatives shall have received the favorable opinions and disclosure letters of Davis Polk Wardwell LLP, U.S. counsel for the Underwriters dated as of the Closing Time and in form and substance satisfactory to them, together with signed or reproduced copies of such letter for each of the other Underwriters.
| (c) | Officer’s Certificates |
At or before the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Time of Sale Information and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries
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(considered as one enterprise), in either case whether or not arising in the ordinary course of business, and the Representatives shall have received at or before the Closing Time a certificate of an executive officer of the Issuer, dated as of the Closing Time, to the effect that (A) there has been no such material adverse change or any such development involving a prospective material adverse change, (B) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time and (C) the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time.
| (d) | Certificate of Accounting Officer |
At the time of execution of this Agreement, the Representatives shall have received a certificate of an accounting officer of the Issuer, dated as of such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such certificate for each of the other Underwriters, with respect to certain of the financial statements and financial information contained in the Time of Sale Information and the Prospectus and other financial information of the Issuer and the Principal Subsidiaries.
| (e) | Bring-down Certificate of Accounting Officer |
At or before the Closing Time, the Representatives shall have received a certificate of an accounting officer of the Issuer, dated as of the Closing Time, to the effect that they reaffirm the statements made in the certificate furnished pursuant to subparagraph (d) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time, together with signed or reproduced copies of such certificate for each of the other Underwriters.
| (f) | Accountants’ Comfort Letters |
At the time of the execution of this Agreement, the Representatives shall have received a letter dated the date hereof from [insert name of auditor], in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Time of Sale Information and the Prospectus.
| (g) | Bring-down Comfort Letters |
At or before the Closing Time, the Representatives shall have received from [insert name of auditor], a letter, each dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subparagraph (f) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
| (h) | Maintenance of Rating |
At the Closing Time, the Notes shall be rated at least [“ ” by [insert name(s) of rating agency/agencies]], and the Issuer shall have delivered to the Representatives, as of the Closing Time, confirmation from each such rating agency, in a form satisfactory to the Representatives, that the Notes have such ratings; since the execution of this Agreement, there shall not have been any downgrade, decrease in or withdrawal of the rating assigned to the Notes or any other securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act) and no such securities rating agency shall have publicly announced or, to the best of the Issuer’s knowledge, given any notice that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any other debt securities or preferred stock issued or guaranteed by the Issuer or any of its subsidiaries.
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| (i) | [Approval of Listing |
At or before the Closing Time, the Notes shall have been approved for listing on the Relevant Exchange, subject only to official notice of issuance.]
| (j) | Indenture and Notes |
The execution and delivery of [the Indenture and] the Notes shall have occurred prior to or at the Closing Time, and the Indenture shall be in full force and effect at the Closing Time.
| (k) | Additional Documents |
At or before the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance, sale and delivery of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfilment of any of the conditions, herein contained; and all proceedings taken by the Issuer in connection with the issuance, sale and delivery of the Notes as herein contemplated and in connection with the other transactions described in this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
| (l) | Termination of Agreement |
If any condition specified in this Section 5 shall not have been fulfilled or waived by the Representatives when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Issuer at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that Section 1, Section 7, Section 8, Section 9, Section 13, Section 14, Section 15, Section 16, Section 17, Section 18, Section 20 and Section 21 hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Offers and Resales of the Notes
| (a) | Offer and Sale Procedures |
Each of the Underwriters hereby represents and agrees that it has not used and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the 1933 Act (which term includes use of any written information furnished to the Commission by the Issuer and not incorporated by reference into the Registration Statement and any press release issued by the Issuer) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 1(a)(iii) or Section 3(d) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuer in advance in writing. Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Issuer. Each Underwriter, severally and not jointly, represents, warrants and agrees that it and its Affiliates have not offered, sold or delivered and will not offer, sell or deliver any of the Notes in any jurisdiction outside the United States except under circumstances that will result in compliance with the applicable laws thereof, and that it has taken or will take at its own expense whatever action is required to permit its purchase and resale of the Notes in such jurisdictions.
| (b) | Specially-Related Persons |
The Issuer covenants with each Underwriter that prior to the finalization of the allocation of the Notes to the Subsequent Purchasers, the Issuer will identify and inform the Representatives of all Specially-Related
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Persons of the Issuer (as defined in Section 6(c) below) from the list compiled by the Underwriters of potential Subsequent Purchasers that may purchase any of the Notes from the Underwriters as part of the distribution of the Notes under this Agreement as soon as reasonably practical after the Issuer has received such list from the Underwriters.
| (c) | Japanese Selling Restrictions |
The Notes have not been and will not be registered under the FIEL and are subject to the Special Taxation Measures Act of Japan (Act No. 26 of 1957, as amended) (the “Special Taxation Measures Act”). Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Issuer that (i) it has not, directly or indirectly, offered or sold and will not, directly or indirectly, offer or sell any Notes in Japan or to, or for the benefit of, any resident of Japan (which term as used in this clause (i) means any person resident of Japan, including any corporation or other entity organized under the laws of Japan) or to others for reoffering or resale, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the FIEL and any other applicable laws, regulations and governmental guidelines of Japan; and (ii) it has not, directly or indirectly, offered or sold and will not, as part of its distribution pursuant to this Agreement at any time, directly or indirectly offer or sell any Notes to, or for the benefit of, any person other than a beneficial owner that is (a) for Japanese tax purposes, neither (x) an individual resident of Japan or a Japanese corporation, nor (y) an individual non-resident of Japan or a non-Japanese corporation that in either case is a person having a special relationship with the Issuer as described in Article 6, paragraph (4) of the Special Taxation Measures Act (such person is referred to as a “Specially-Related Person of the Issuer”) or (b) a Japanese financial institution, designated in Article 6, paragraph (11) of the Special Taxation Measures Act. Notwithstanding the restriction set forth in (ii) above, pursuant to the Special Taxation Measures Act, Mizuho Securities USA LLC, a Specially-Related Person of the Issuer and acting in its capacity as an Underwriter, will be permitted to acquire or purchase, as part of the distribution of the Notes, the remainder of the Notes from any of the other Underwriters, where such other Underwriter has failed to sell to Subsequent Purchasers all of the Notes that it acquired or purchased from the Issuer in its capacity as an Underwriter.
SECTION 7. Indemnification
| (a) | Indemnification of the Underwriters |
The Issuer agrees to indemnify and hold harmless each Underwriter, its Affiliates, Selling Agents, directors and officers and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
| (i) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of or based on any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based on any untrue statement or alleged untrue statement of material fact included in any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) or any omission or alleged omission in any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
| (ii) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any |
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| such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such settlement is effected with the written consent of the indemnifying party; and |
| (iii) | against any and all expense whatsoever, as reasonably incurred (including the fees and disbursements of counsel chosen by the Representatives), in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; |
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use therein.
| (b) | Indemnification of the Issuer, its Directors and Officers |
Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Issuer, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 7, as incurred, but only with respect to any untrue statement or omission, or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use therein.
| (c) | Actions Against Parties; Notification |
Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Issuer. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all
26
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
| (d) | Settlement Without Consent if Failure to Reimburse |
If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 8. Contribution
If the indemnification provided for in Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuer, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuer, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Issuer, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, bear to the aggregate initial offering price of the Notes as set forth in the Prospectus.
The relative fault of the Issuer, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuer or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Issuer and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 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 Section 8. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes purchased and sold by it hereunder exceeds the
27
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 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates, officers, directors and Selling Agents shall have the same rights to contribution as such Underwriter, and each director of the Issuer, each officer of the Issuer who signed the Registration Statement, and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Issuer. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the principal amount of Notes set forth opposite their respective names in Schedule A hereto, and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
All representations, warranties and agreements contained in this Agreement or in certificates of officers or directors of the Issuer or any of its subsidiaries submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates, or Selling Agents, any person controlling any Underwriter, its officers or directors or any person controlling the Issuer and (ii) delivery of and payment for the Notes.
SECTION 10. Termination of Agreement
| (a) | Termination; General |
The Representatives may terminate this Agreement, by notice to the Issuer, at any time at or prior to the Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Information or the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries (considered as one enterprise), in either case whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in Japan, the United Kingdom, the United States or other international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions or currency exchange rates, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Notes, to enforce contracts for the sale of the Notes or to deliver the Notes, or (iii) if trading in any securities of the Issuer or any of its subsidiaries has been suspended or materially limited on any exchange, or (iv) if trading generally on the Tokyo Stock Exchange, the New York Stock Exchange, NYSE Amex Equities (formerly the American Stock Exchange), the London Stock Exchange, The NASDAQ Stock Market, the SGX-ST, the Luxembourg Stock Exchange or the Euro MTF Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the FSA, the U.K. Listing Authority, the London Stock Exchange plc, the Monetary Authority of Singapore or any other governmental authority other than daily limits or ranges imposed in the ordinary course by the Tokyo Stock Exchange, or (v) if a material disruption has occurred in commercial banking or securities settlement or clearance services in Japan or the United States, or with respect to Clearstream or Euroclear in Europe, or (vi) if there occurs any change or development involving a prospective change in Japanese taxation adversely affecting the Issuer, the Notes or the transfer thereof, or
28
(vii) if a banking moratorium has been declared by any relevant authority in Japan, the United Kingdom or the United States.
| (b) | Liabilities |
If this Agreement is terminated pursuant to this Section 10, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Section 1, Section 7, Section 8, Section 9, Section 13, Section 14, Section 15, Section 16, Section 17, Section 18, Section 20 and Section 21 hereof shall survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Underwriters
If one or more of the Underwriters shall fail or refuse to purchase the Notes that it or they have agreed to purchase under this Agreement (the “Defaulted Notes”), the Representatives shall have the right, within 36 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other Underwriters, to purchase all, but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 36 hour period, then:
| (a) | if the number of Defaulted Notes does not exceed 10% of the aggregate principal amount of the Notes to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount of the Notes constituting Defaulted Notes in the proportions that their respective obligations to purchase the [series of ]Notes [constituting Defaulted Notes ]hereunder bear to the obligations of [such series of] the Notes of all non-defaulting Underwriters; or |
| (b) | if the number of Defaulted Notes exceeds 10% of the aggregate principal amount of the Notes to be purchased hereunder, upon notice from the Underwriters to the Issuer, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. |
No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, any of the Representatives or the Issuer shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 11.
SECTION 12. Notices
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives to [address(es)]; and notices to the Issuer shall be directed to it at [5-5, Otemachi 1-chome, Chiyoda-ku, Tokyo 100-8176, Japan, facsimile: +81 3 5224 1057, attention of Financial Planning Department].
SECTION 13. No Advisory or Fiduciary Relationship
The Issuer acknowledges and agrees that (a) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the initial offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction among the Issuer, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, each of the Underwriters is and has been acting solely as a principal and is not the agent or fiduciary of the Issuer, or any of its stockholders, creditors or employees or any other party, (c) no Underwriter has
29
assumed or will assume an advisory or fiduciary responsibility in favor of the Issuer with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Issuer on other matters) and no Underwriter has any obligation to the Issuer with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and each of their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Issuer has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties
This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Issuer and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Issuer and their respective successors and the controlling persons and officers and directors referred to in Section 7 and Section 8 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Issuer and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase. Any review by the Underwriters of the Issuer, the transaction contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuer.
SECTION 15. Consent to Jurisdiction; Appointment of Agent for Service of Process; Jury Trial Waiver
| (a) | The Issuer irrevocably consents and agrees for the benefit of the holders of the Notes and the Underwriters that any legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Agreement or the Notes may be brought in the courts of the State of New York or the courts of the United States of America located in the Borough of Manhattan, The City of New York, and any appellate court from any thereof and, until all amounts due and to become due in respect of all the Notes have been paid, or until any such legal action, suit or proceeding commenced prior to such payment has been concluded, hereby irrevocably consents and irrevocably submits to the non-exclusive jurisdiction of each such court in person and generally and unconditionally with respect to any action, suit or proceeding for itself and in respect of its properties, assets and revenues. |
| (b) | The Issuer hereby irrevocably designates, appoints and empowers Mizuho Bank, Ltd., at its office currently located at [1271 Avenue of the Americas, New York, NY 10020, U.S.A., Attention: Managing Director, Americas Legal and Compliance Department], as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service of any and all legal process, summons, notices and documents that may be served in any action, suit or proceeding brought against it in any such United States federal or New York state court located in the Borough of Manhattan, The City of New York, with respect to its obligations, liabilities or any other matter arising out of or in connection with this Agreement, the Notes or any additional agreement and that may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts, it being understood and agreed that the designation, appointment and empowerment of Mizuho Bank, Ltd. as such authorized agent shall become effective immediately upon the execution of this Agreement without any further action on the part of the Issuer or any other person or entity. The Issuer represents to each Underwriter that it has notified Mizuho Bank, Ltd. of such designation, appointment and empowerment and that Mizuho Bank, Ltd. has accepted the same. If for any reason such designee, appointee and agent hereunder shall cease to be available to act as such, the Issuer agrees to designate a new designee, appointee and agent in the Borough of Manhattan, The City of New York, on the terms and for the purposes of this |
30
| Section 15 satisfactory to the Representatives. The Issuer further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding against it by serving a copy thereof upon the relevant agent for service of process referred to in this Section 15 (whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified air mail, postage prepaid, to it, at its address specified in or designated pursuant to this Agreement. The Issuer agrees that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of the Underwriters to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the Issuer or bring actions, suits or proceedings against either of them in such other jurisdictions, and in such manner, as may be permitted by applicable law. The Issuer hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement or the Notes brought in the United States federal courts located in the Borough of Manhattan, The City of New York, or the courts of the State of New York located in the Borough of Manhattan, The City of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. The provisions of this Section 15 shall survive any termination of this Agreement, in whole or in part. |
| (c) | The Issuer hereby irrevocably waives, to the full extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. |
SECTION 16. Waiver of Immunities
To the extent that the Issuer or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement, the Indenture or any additional agreement in connection with the offering, the Issuer hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement.
SECTION 17. Foreign Taxes
All payments by the Issuer to each of the Underwriters hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present and future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereinafter imposed, levied, collected, withheld or assessed by Japan or any other jurisdiction in which the Issuer has an office from which payment is made or deemed to be made, excluding (i) any such tax imposed by reason of such Underwriter having some connection with any such jurisdiction other than its participation as an Underwriter hereunder and (ii) any income or franchise tax on the overall net income of such Underwriter imposed by the United States or any political subdivision thereof (all such non-excluded taxes, “Foreign Taxes”). If the Issuer is prevented by operation of law or otherwise from paying, causing to be paid or remitting that portion of amounts payable hereunder represented by Foreign Taxes withheld or deducted, then amounts payable under this Agreement shall, to the extent permitted by law, be increased to such amount as is necessary to yield and remit to each Underwriter an amount which, after deduction of all Foreign Taxes (including all Foreign Taxes payable on such increased payments) equals the amount that would have been payable if no Foreign Taxes applied.
31
SECTION 18. Judgment Currency
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the New York Business Day preceding that on which final judgment is given. The obligation of the Issuer with respect to any sum due from it to the Underwriters, or any person controlling the Underwriters or any affiliate of any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first New York Business Day following receipt by such Underwriter or controlling person or affiliate of any sum in such other currency, and only to the extent that such Underwriter or controlling person or affiliate may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person or affiliate hereunder, the Issuer agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person or affiliate against such loss, include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person or affiliate hereunder, such Underwriter or controlling person or affiliate agrees to pay to the Issuer an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person or affiliate hereunder. [“New York Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is a day that settlements are allowed to take place on the New York Stock Exchange and which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.]
SECTION 19. Authority of the Representative
Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
SECTION 20. Recognition of the U.S. Special Resolution Regimes
| (a) | In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime. |
| (b) | In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime. |
As used in this Section 20:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
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“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 21. GOVERNING LAW
THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 22. TIME
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO [INSERT TIME ZONE] TIME.
SECTION 23. Integration
This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Issuer and the Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 24. Amendments or Waivers
No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
SECTION 25. Severability
If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall (so far as invalid or unenforceable) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement.
SECTION 26. Counterparts
This Agreement may be executed 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 Agreement.
SECTION 27. Effect of Headings
The Section headings herein are for convenience only and shall not affect the construction hereof.
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[Signature page to follow]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Issuer in accordance with its terms.
Very truly yours,
| Mizuho Financial Group, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Underwriting Agreement Signature Page]
CONFIRMED AND ACCEPTED,
as of the date first above written:
| [Name of Representative] | ||
| By: | ||
| Authorized Signatory | ||
| [[Name of Representative] | ||
| By: | ||
| Authorized Signatory] | ||
For [itself/themselves] and as the Representative(s) of the several Underwriters named in Schedule A hereto.
[Underwriting Agreement Signature Page]
SCHEDULE A
| Name of Underwriter |
Principal Amount of
[insert name(s) of notes] |
|||
| [Insert name(s) of Underwriter(s)] |
[$ | ] [ ] | ||
| [ ] | ||||
|
|
|
|||
| Total |
[$ | ] [ ] | ||
|
|
|
|||
[Schedule A]
SCHEDULE B
Principal Subsidiaries
Mizuho Bank, Ltd.
Mizuho Trust & Banking Co., Ltd.
Mizuho Securities Co., Ltd.
[Schedule B]
ANNEX A
Time of Sale Information
| • | Preliminary Prospectus dated [ ], 20[ ] |
| • | Pricing Term Sheet, dated [ ], 20[ ], substantially in the form of Annex B |
| • | [list each Issuer Free Writing Prospectus that is filed on EDGAR] |
[Annex A]
ANNEX B
Pricing Term Sheet
[Insert name of securities] [due 20[ ]]
Issuer:
Expected Security Ratings:*
Securities Offered:
Issue Price:
Maturity Date:
[Treasury Benchmark: (fixed rate notes only)]
[Treasury Benchmark Price / Yield: (fixed rate notes only)]
[Spread to Treasury Benchmark: (fixed rate notes only)]
[Reoffer Yield: (fixed rate notes only)]
Interest Rate/Coupon:
Interest Payment Dates:
[Interest Period: (floating rate notes only)]
[Interest Determination Date: (floating rate notes only)]
[SOFR Observation Period: (floating rate notes only)]
Day Count:
Ranking:
Trade Date:
Settlement Date:
Business Days:
Minimum Denomination:
[Viability Event and Viability Write-Down: (dated subordinated notes only)]
[Optional Cancellation of Interest Payments: (perpetual subordinated notes only)]
[Mandatory Cancellation of Interest Payments: (perpetual subordinated notes only)]
[Going Concern Write-Down upon a Capital Ratio Event: (perpetual subordinated notes only)]
[Annex B]
[Write-Down and Cancellation upon a Viability Event or Bankruptcy
Event: (perpetual subordinated notes only)]
[Optional Redemption:]
[Other Terms:]
Use of Proceeds:
Listing:
Billing and Delivering:
Joint Lead Managers and Joint Bookrunners:
[Senior Co-Managers: (if any)]
Co-Managers:
CUSIP:
ISIN:
Common Code:
*Note: A security rating is not a recommendation to buy, sell or hold securities and may be subject to suspension, revision or withdrawal at any time by the assigning rating agencies.
This communication is intended for the sole use of the person to whom it is provided by us. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The Issuer has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and other documents the Issuer has filed with the SEC and which are incorporated by reference therein for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request it by calling [insert name of Representative] at [ ] [or [insert name of Representative] at[ ]].
[Annex B]
EXHIBIT A-1
FORM OF OPINION OF ISSUER’S U.S. COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(a)
[Exhibit A-1]
EXHIBIT A-2
FORM OF DISCLOSURE LETTER OF ISSUER’S U.S. COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(a)
[Exhibit A-2]
EXHIBIT B-1
FORM OF OPINION OF ISSUER’S JAPANESE COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(a)
[Exhibit B-1]
EXHIBIT B-2
FORM OF DISCLOSURE LETTER OF ISSUER’S JAPANESE COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(a)
[Exhibit B-2]
Exhibit 4.3
MIZUHO FINANCIAL GROUP, INC.
as the Company
and
THE BANK OF NEW YORK MELLON
as the Trustee
PERPETUAL SUBORDINATED INDENTURE
Dated as of [ ]
Table of Contents
| Page | ||||||
| ARTICLE 1 | ||||||
| DEFINITIONS | ||||||
| Section 1.01. | Certain Terms Defined |
1 | ||||
| ARTICLE 2 | ||||||
| SECURITIES | ||||||
| Section 2.01. | Forms Generally |
8 | ||||
| Section 2.02. | Form of Trustee’s Certification of Authentication |
9 | ||||
| Section 2.03. | Amount Unlimited; Issuable in Series |
9 | ||||
| Section 2.04. | Authentication and Delivery of Securities |
11 | ||||
| Section 2.05. | Execution of Securities |
12 | ||||
| Section 2.06. | Certificate of Authentication |
12 | ||||
| Section 2.07. | Form, Denomination and Date of Securities; Payments of Interest |
12 | ||||
| Section 2.08. | Registration, Transfer and Exchange of Securities |
13 | ||||
| Section 2.09. | Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
15 | ||||
| Section 2.10. | Cancellation of Securities |
15 | ||||
| Section 2.11. | Temporary Securities |
15 | ||||
| Section 2.12. | Japanese Withholding Tax |
16 | ||||
| Section 2.13. | CUSIP, ISIN Numbers and Common Codes |
17 | ||||
| Section 2.14. | Final and Conclusive Determination |
17 | ||||
| ARTICLE 3 | ||||||
| COVENANTS OF THE COMPANY | ||||||
| Section 3.01. | Payment of Principal and Interest |
17 | ||||
| Section 3.02. | Offices for Payments, etc. |
18 | ||||
| Section 3.03. | Appointment to Fill a Vacancy in Office of Trustee |
18 | ||||
| Section 3.04. | Paying Agents |
18 | ||||
| Section 3.05. | Additional Amounts |
19 | ||||
| Section 3.06. | Certificate of the Company |
21 | ||||
| Section 3.07. | Securityholders Lists |
21 | ||||
| Section 3.08. | Statement by Officers as to Breach |
21 | ||||
| Section 3.09. | Reports by the Company |
21 | ||||
| Section 3.10. | Agreement to Interest Cancellation |
21 | ||||
| Section 3.11. | Optional Cancellation of Interest Payments |
22 | ||||
| Section 3.12. | Mandatory Cancellation of Interest Payments due to Interest Payable Amount Limitation |
23 | ||||
| Section 3.13. | Calculating Interest Payments upon the Occurrence of a Capital Ratio Event or Write-Up of the Securities |
23 | ||||
| Section 3.14. | Cessation of Accrual of Interest |
24 | ||||
| Section 3.15. | Effect of a Cancellation of Interest Payment |
24 | ||||
| Section 3.16. | Subject to Other Provisions |
25 | ||||
| Section 3.17. | Notices of Cancellation of Interest Payments |
25 | ||||
| Section 3.18. | Notice to Holders |
25 | ||||
i
| ARTICLE 4 | ||||||
| LIMITED REMEDIES OF THE TRUSTEE AND HOLDERS | ||||||
| Section 4.01. | No Events of Default or Rights of Acceleration; Subordination upon Liquidation Event |
26 | ||||
| Section 4.02. | Trustee May File Proof of Claim |
26 | ||||
| Section 4.03. | Application of Proceeds |
27 | ||||
| Section 4.04. | Suits for Enforcement |
27 | ||||
| Section 4.05. | Restoration of Rights on Abandonment of Proceeding |
28 | ||||
| Section 4.06. | Limitations on Suits by Securityholders |
28 | ||||
| Section 4.07. | Unconditional Right of Securityholders to Institute Certain Suits |
29 | ||||
| Section 4.08. | Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach |
29 | ||||
| Section 4.09. | Control by Securityholders |
29 | ||||
| Section 4.10. | Waiver of Breaches |
29 | ||||
| Section 4.11. | Trustee to Give Notice of Breach |
30 | ||||
| Section 4.12. | Right of Court to Require Filing of Undertaking to Pay Costs |
30 | ||||
| ARTICLE 5 | ||||||
| CONCERNING THE TRUSTEE | ||||||
| Section 5.01. | Duties and Responsibilities of the Trustee |
30 | ||||
| Section 5.02. | Certain Rights of the Trustee |
31 | ||||
| Section 5.03. | Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
33 | ||||
| Section 5.04. | Trustee and Agents May Hold Securities; Collections, etc. |
33 | ||||
| Section 5.05. | Moneys Held by Trustee |
33 | ||||
| Section 5.06. | Compensation and Indemnification of Trustee and its Prior Claim |
33 | ||||
| Section 5.07. | Right of Trustee to Rely on Officer’s Certificate, etc |
34 | ||||
| Section 5.08. | Persons Eligible for Appointment as Trustee |
34 | ||||
| Section 5.09. | Resignation and Removal; Appointment of Successor Trustee |
34 | ||||
| Section 5.10. | Acceptance of Appointment by Successor Trustee |
35 | ||||
| Section 5.11. | Merger, Conversion, Consolidation or Succession to Business of Trustee |
36 | ||||
| Section 5.12. | Conflicting Interests |
37 | ||||
| Section 5.13. | Appointment of Authenticating Agent |
37 | ||||
| Section 5.14. | Reports by the Trustee |
38 | ||||
| ARTICLE 6 | ||||||
| CONCERNING THE SECURITYHOLDERS | ||||||
| Section 6.01. | Evidence of Action Taken by Securityholders |
38 | ||||
| Section 6.02. | Proof of Execution of Instruments and of Holding of Securities; Record Date |
38 | ||||
| Section 6.03. | Holders to be Treated as Owners |
39 | ||||
| Section 6.04. | Securities Owned by Company Deemed Not Outstanding |
39 | ||||
| Section 6.05. | Right of Revocation of Action Taken |
39 | ||||
| ARTICLE 7 | ||||||
| SUPPLEMENTAL INDENTURES | ||||||
| Section 7.01. | Supplemental Indentures without Consent of Securityholders |
40 | ||||
| Section 7.02. | Supplemental Indentures with Consent of Securityholders |
41 | ||||
| Section 7.03. | Effect of Supplemental Indenture |
42 | ||||
| Section 7.04. | Documents to be Given to Trustee |
42 | ||||
| Section 7.05. | Notation on Securities in Respect of Supplemental Indentures |
42 | ||||
| Section 7.06. | Conformity with the Trust Indenture Act |
42 | ||||
ii
| ARTICLE 8 | ||||||
| CONSOLIDATION, MERGER, SALE OR CONVEYANCE | ||||||
| Section 8.01. | Company May Consolidate, etc., on Certain Terms |
42 | ||||
| Section 8.02. | Successor Substituted |
43 | ||||
| Section 8.03. | Opinion of Counsel to Trustee |
43 | ||||
| ARTICLE 9 | ||||||
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS | ||||||
| Section 9.01. | Satisfaction and Discharge of Indenture |
43 | ||||
| Section 9.02. | Application by Trustee of Funds Deposited for Payment of Securities |
44 | ||||
| Section 9.03. | Repayment of Moneys Held by Paying Agent |
44 | ||||
| Section 9.04. | Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
44 | ||||
| ARTICLE 10 | ||||||
| MISCELLANEOUS PROVISIONS | ||||||
| Section 10.01. | Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability |
44 | ||||
| Section 10.02. | Provisions of Indenture for the Sole Benefit of Parties and Securityholders |
44 | ||||
| Section 10.03. | Successors and Assigns of Company Bound by Indenture |
44 | ||||
| Section 10.04. | Notices and Demands on Company, Trustee, and Securityholders |
45 | ||||
| Section 10.05. | Officer’s Certificates and Opinions of Counsel; Statements to be Contained Therein |
46 | ||||
| Section 10.06. | Conflict of any Provision of Indenture with Trust Indenture Act |
46 | ||||
| Section 10.07. | New York Law to Govern |
46 | ||||
| Section 10.08. | Counterparts |
47 | ||||
| Section 10.09. | Effect of Headings |
47 | ||||
| Section 10.10. | Submission to Jurisdiction |
47 | ||||
| Section 10.11. | Non-Business Day |
47 | ||||
| Section 10.12. | Waiver of Jury Trial |
47 | ||||
| Section 10.13. | Patriot Act |
47 | ||||
| ARTICLE 11 | ||||||
| REDEMPTION AND REPURCHASE OF SECURITIES | ||||||
| Section 11.01. | Applicability of Article |
48 | ||||
| Section 11.02. | Optional Redemption |
48 | ||||
| Section 11.03. | Notice of Redemption |
49 | ||||
| Section 11.04. | Payment of Securities Called for Redemption |
50 | ||||
| Section 11.05. | Purchase of Securities |
50 | ||||
| ARTICLE 12 | ||||||
| SUBORDINATION | ||||||
| Section 12.01. | Agreement to Subordinate |
51 | ||||
| Section 12.02. | Subordination |
51 | ||||
| Section 12.03. | No Amendment |
52 | ||||
| Section 12.04. | Provisions Solely to Define Relative Rights |
52 | ||||
| Section 12.05. | Trustee to Effectuate Subordination |
52 | ||||
| Section 12.06. | Notice to Trustee |
52 | ||||
| Section 12.07. | No Restriction on the Company Assuming Further Obligations |
52 | ||||
iii
| ARTICLE 13 | ||||||
| WRITE-DOWN AND CANCELLATION | ||||||
| Section 13.01. | Agreement to Write-Down and Cancellation |
53 | ||||
| Section 13.02. | Notice of Write-Down and Cancellation |
53 | ||||
| Section 13.03. | Write-Down and Cancellation |
53 | ||||
| Section 13.04. | Additional Provisions Relating to a Write-Down and Cancellation |
54 | ||||
| ARTICLE 14 | ||||||
| GOING CONCERN WRITE-DOWN AND WRITE-UP | ||||||
| Section 14.01. | Agreement to Going Concern Write-Down |
57 | ||||
| Section 14.02. | Notice of Going Concern Write-Down |
59 | ||||
| Section 14.03. | Going Concern Write-Down |
59 | ||||
| Section 14.04. | Notice of Write-Up |
60 | ||||
| Section 14.05. | Write-up upon a Write-Up Event |
61 | ||||
| Section 14.06. | Additional Provisions Relating to a Going Concern Write-Downs and Write-Ups |
61 | ||||
| EXHIBITS |
||
| Exhibit A |
Form of Officer’s Certificate pursuant to Section 3.06 | |
| Exhibit B |
Form of Cancellation of Interest Payment Notice pursuant to Section 3.17 | |
| Exhibit C |
Form of Write-Down and Cancellation Notice pursuant to Section 13.02 | |
| Exhibit D |
Form of Going Concern Write-Down Notice pursuant to Section 14.02 | |
| Exhibit E |
Form of Write-Up Notice pursuant to Section 14.04 |
iv
CROSS REFERENCE SHEET
Cross-reference sheet of provisions of the Trust Indenture Act (as defined in this Indenture) and this Indenture:
| Section of the Trust Indenture Act | Section of Indenture | |
| 310(a)(1) and (2) | 5.08 | |
| 310(a)(3) and (4) | Inapplicable | |
| 310(a)(5) | Incorporated by Section 318(c) | |
| 310(b) | 5.09 | |
| 311(a) and (b) | Incorporated by Section 318(c) | |
| 312(a) | 3.07 | |
| 312(b) | Incorporated by Section 318(c) | |
| 312(c) | Incorporated by Section 318(c) | |
| 313(a) | 5.14 | |
| 313(b)(1) | Inapplicable | |
| 313(b)(2) | Incorporated by Section 318(c) | |
| 313(c) | Incorporated by Section 318(c) | |
| 313(d) | Incorporated by Section 318(c) | |
| 314(a) | 3.06, 3.09 | |
| 314(b) | Inapplicable | |
| 314(c)(1) and (2) | 10.05 | |
| 314(c)(3) | Inapplicable | |
| 314(d) | Inapplicable | |
| 314(e) | 10.05 | |
| 315(a), (c) and (d) | 5.01 | |
| 315(b) | 4.11 | |
| 315(e) | 4.12 | |
| 316(a)(1) | 4.09 | |
| 316(a)(2) | Inapplicable | |
| 316(b) | 4.07 | |
| 316(c) | Incorporated by Section 318(c) | |
| 317(a) | 4.02 | |
| 317(b) | 3.04 | |
| 318(a) | 10.06 |
Notes:
This cross-reference sheet shall not, for any purpose, be deemed to be a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides that the provisions of Sections 310 to and including 317 of the Trust Indenture Act are a part of and govern every qualified indenture, whether or not physically contained therein. Sections designated in the cross-reference sheet above as “Incorporated by Section 318(c)” are not physically contained herein but are incorporated in this Indenture automatically by Section 318(c) of the Trust Indenture Act.
v
THIS PERPETUAL SUBORDINATED INDENTURE, dated as of [ ] between Mizuho Financial Group, Inc., a joint stock company (kabushiki kaisha) organized under the laws of Japan (the “Company”), and The Bank of New York Mellon, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time of its unsecured and perpetual subordinated bonds, debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture, and to provide, among other things, for the authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided herein or in the form of Security or any indenture supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act or the definitions of which contained in the Securities Act are referred to in the Trust Indenture Act, including terms defined in the Trust Indenture Act by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted in Japan at the time of any computation. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
“Additional Amounts” has the meaning set forth in Section 3.05.
“Additional Tier 1 Capital” means any and all items constituting Additional Tier 1 capital (for the avoidance of doubt, which exclude then applicable regulatory adjustments) under the applicable standards set forth in the Applicable Banking Regulations and shall also include any successor or substitute term applicable pursuant to the Applicable Banking Regulations.
“Additional Tier 1 Liabilities” means, with respect to a series of the Securities, at any time, any instruments qualifying as the Company’s Additional Tier 1 Capital (other than such series of Securities, but including any other series of Securities) that are issued or created directly by the Company and are treated as liabilities under the applicable standards set forth in the Applicable Banking Regulations.
“Adjusted Distributable Amount” has the meaning set forth in Section 3.12.
“Agent” means any Registrar, Paying Agent, Transfer Agents or Authenticating Agent and any successor thereto.
“Applicable Banking Regulations” means the Banking Act of Japan (Act No. 59 of 1981, as amended) or any successor legislation thereto (the “Japanese Banking Act”), and any orders, rules, regulations, ordinances, public ministerial announcements, guidelines and policies thereunder then in effect and applicable at any time as the context may require under this Indenture, including, without limitation, the Public Ministerial Announcement (No. 20 of the FSA Public Ministerial Announcement (kokuji) of 2006, as amended).
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 5.13 to act on behalf of the Trustee to authenticate the Securities.
“Authorized Agent” has the meaning set forth in Section 10.10.
“Bankruptcy Event” means either a Japanese Bankruptcy Event, a Japanese Corporate Reorganization Event, a Japanese Civil Rehabilitation Event, a Special Liquidation Event or a Foreign Event.
“Board” means the Board of Directors of the Company or any duly authorized committee of such Board or any director(s), executive officer(s) or officer(s), or combination thereof, of the Company to whom such Board of Directors or duly authorized committee thereof or duly delegated director or executive officer of the Company has duly delegated its authority.
“Board Resolution” means one or more resolutions or determinations to have been duly adopted or consented to by the Board and to be in full force and effect.
“breach” has the meaning set forth in Section 4.04.
“Business Day” means, with respect to any Security, a day that (i) in the city of the Corporate Trust Office of the Trustee, and in The City of New York, Tokyo or any city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security and in any other city specified in an indenture supplemental hereto or in the form of such Security, or (ii) in any city specified in an indenture supplemental hereto or in the form of such Security, is not a day on which banking institutions are authorized by law or regulation to close.
“Cancellation of Interest Payments Notice” has the meaning set forth in Section 3.17.
“Capital Ratio Event” has the meaning set forth in Section 14.01.
“Clearing Organization” means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Clearing Organization by the Company pursuant to Section 2.03 until a successor Clearing Organization shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Clearing Organization” shall mean or include each Person who is then a Clearing Organization hereunder, and if at any time there is more than one such Person, “Clearing Organization” as used with respect to the Securities of any such series shall mean the Clearing Organization with respect to the Registered Global Securities of that series.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
2
“Company” means Mizuho Financial Group, Inc., a joint stock company (kabushiki kaisha) organized under the laws of Japan, as identified as “Company” in the first paragraph hereof, and, subject to Article 8, its successors and assigns.
“Condition for Liquidation Payment” has the meaning set forth in Section 12.02.
“Consolidated Common Equity Tier 1 Capital Ratio” means, as of any date, the Common Equity Tier 1 risk-weighted capital ratio on a consolidated basis, as calculated in accordance with the applicable standards set forth in the Applicable Banking Regulations, and shall also include any successor or substitute term applicable pursuant to the Applicable Banking Regulations, as of such date.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee in the United States shall, at any particular time, be principally administered, which office is, at the date as of which this Indenture is dated, located at 240 Greenwich Street, New York, NY 10286, USA, Attention: Global Corporate Trust – Mizuho Financial Group, Inc., or such other address as is referenced in Section 10.04 herein; or as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).
“Current Principal Amount” means at any time:
(a) with respect to any series of Securities, the then outstanding principal amount of such series of Securities, being the principal amount of such series of Securities at issuance, as such amount may be reduced on one or more occasions pursuant to a Going Concern Write-Down and/or reinstated on one or more occasions following a Write-Up, as the case may be, in accordance with the terms of such series of Securities and this Indenture; or
(b) with respect to any Going Concern Loss Absorbing Instruments, the then outstanding principal amount of such Going Concern Loss Absorbing Instruments, as calculated in accordance with their terms and conditions, including the application of write-down or write-up provisions, if any.
“Depositary” has the meaning set forth in Section 2.07(a).
“Designated Financial Institution” has the meaning set forth in Section 3.05.
“Designee” has the meaning set forth in Section 2.14.
“Discharge and Cancellation Date” has the meaning set forth in Section 13.01.
“Dollar”, “$” or “U.S. dollar” means the coin or currency of the United States of America that at the time of payment is legal tender for the payment of public and private debts.
“DTC” means The Depository Trust Company, its nominees, and their respective successors.
“DTC Procedures” has the meaning set forth in Section 2.12(a).
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“FATCA” has the meaning set forth in Section 3.05.
“Foreign Event” means the Company becoming subject to bankruptcy, corporate reorganization, rehabilitation proceedings, special liquidation or other equivalent proceedings pursuant to any applicable law of any jurisdiction other than Japan.
3
“FSA” means the Financial Services Agency of Japan or any successor or similar authority.
“Going Concern Discharge Date” has the meaning set forth in Section 14.01.
“Going Concern Loss Absorbing Instrument” means, with respect to a series of the Securities, at any time, (i) Additional Tier 1 Liabilities and (ii) any instruments qualifying as the Company’s Additional Tier 1 Capital (other than such series of Securities and any Additional Tier 1 Liabilities) that shall become subject to the Write-Down or Conversion upon the occurrence of a Capital Ratio Event (including any such instruments issued or created by the Company through any Special Purpose Company) under the applicable standards set forth in the Applicable Banking Regulations.
“Going Concern Write-Down” has the meaning set forth in Section 14.03.
“Going Concern Write-Down Amount” has the meaning set forth in Section 14.01.
“Going Concern Write-Down Notice” has the meaning set forth in Section 14.02.
“Holder,” “holder of Securities,” “Securityholder” or other similar terms means the holder of any Security.
“Incorporated Provision” has the meaning set forth in Section 10.06.
“Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“Interest Payable Amount” has the meaning set forth in Section 3.12.
“Interest Payable Amount Limitation” has the meaning set forth in Section 3.12.
“Interest Recipient Information” has the meaning set forth in Section 3.05.
“Japanese Bankruptcy Act” means the Bankruptcy Act of Japan (Act No. 75 of 2004, as amended) or any successor legislation thereto.
“Japanese Bankruptcy Event” means a competent court in Japan having adjudicated the Company to be subject to bankruptcy proceedings pursuant to the provisions of the Japanese Bankruptcy Act.
“Japanese Civil Rehabilitation Act” means the Civil Rehabilitation Act of Japan (Act No. 225 of 1999, as amended) or any successor legislation thereto.
“Japanese Civil Rehabilitation Event” means a competent court in Japan having adjudicated the Company to be subject to civil rehabilitation proceedings pursuant to the provisions of the Japanese Civil Rehabilitation Act.
“Japanese Companies Act” means the Companies Act of Japan (Act No. 86 of 2005, as amended) or any successor legislation thereto.
“Japanese Corporate Reorganization Act” means the Corporate Reorganization Act of Japan (Act No. 154 of 2002, as amended) or any successor legislation thereto.
“Japanese Corporate Reorganization Event” means a competent court in Japan having adjudicated the Company to be subject to corporate reorganization proceedings pursuant to the provisions of the Japanese Corporate Reorganization Act.
4
“Japanese Deposit Insurance Act” means the Deposit Insurance Act of Japan (Law No. 34 of 1971, as amended) or any successor legislation thereto.
“Japanese Taxes” has the meaning set forth in Section 3.05.
“Junior Securities” means (i) any liabilities of the Company that rank effectively junior to the Securities in respect of rights of interest payments under the mandatory interest payment cancellation provisions set forth in Section 3.12 (excluding any liabilities owed to any Special Purpose Company), and (ii) any instruments qualifying as the Company’s regulatory capital issued by any Special Purpose Company that rank effectively junior to the Securities in respect of rights of dividend or interest payments under the mandatory interest payment cancellation provisions set forth in Section 3.12.
“Liquidation Event” means the commencement of a liquidation proceeding (seisan) (excluding a special liquidation proceeding (tokubetsu seisan) under the Japanese Companies Act) by or with respect to the Company pursuant to the provisions of the Japanese Companies Act.
“New York Banking Day” means any day, other than a Saturday, Sunday, that is neither a legal holiday in The City of New York nor a day on which commercial banking institutions are authorized or required by law, regulation or executive order to close in The City of New York.
“Notice of Breach” has the meaning set forth in Section 4.04.
“Officer’s Certificate” means a certificate signed by any one Responsible Officer of the Company authorized by the Board or a Representative Executive Officer of the Company to execute any such certificate. Each such certificate shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided for in Section 10.05, if applicable.
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be counsel to the Company and which opinion shall be reasonably satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided for in Section 10.05, if and to the extent required thereby.
“Original Principal Amount” means with respect to any series of Securities and any Going Concern Loss Absorbing Instruments, the principal amount of such series of Securities or such Going Concern Loss Absorbing Instruments upon initial issuance or creation.
“Outstanding” means, when used with reference to Securities, subject to the provisions of Section 6.04, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Paying Agent or delivered to the Paying Agent for cancellation;
(b) Securities that have been cancelled in connection with a Write-Down and Cancellation pursuant to Section 13.02; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Company).
“Parity Securities” means, with respect to a series of the Securities, (i) any liabilities of the Company that are subject to the same terms, or substantially the same terms, in respect of rights of interest payments as the terms of such series of Securities under the mandatory interest payment cancellation provisions set forth in
5
Section 3.12 (excluding such series of Securities and any liabilities owed to any Special Purpose Company, but including other series of Securities), and (ii) any instruments qualifying as the Company’s regulatory capital issued or created by any Special Purpose Company that are subject to the same terms, or substantially the same terms, in respect of rights of dividends or interest payments as the terms of such series of Securities under the mandatory interest payment cancellation provisions set forth in Section 3.12.
“Participant” has the meaning set forth in Section 3.05.
“Paying Agent” means (i) the paying agent for the Securities appointed pursuant to this Indenture, which initially shall be The Bank of New York Mellon, or (ii) such other paying agent as the Company shall specify to the Trustee as paying agent for the Securities or any series thereof, which expression shall include any successor paying agent.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment” means, when used with respect to the Securities of any particular series, the place or places where the principal of and interest, if any, on the Securities of that series are payable, as contemplated in Section 2.03(j).
“post-Write-Up Period” has the meaning set forth in Section 3.13.
“pre-Write-Up Period” has the meaning set forth in Section 3.13.
“Principal” means, when used with respect to a series of Securities and as the context requires, the Current Principal Amount of such series of Securities at any relevant time and, where such term is used in relation to any payment, the principal if, when and to the extent due and payable under this Indenture and the terms of such series of Securities, and, whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any.” For the avoidance of doubt, “premium” referred to in the previous sentence means amounts exceeding the face value of a Security payable by the Company to the Holders upon redemption or such other event provided for in a supplemental indenture or in a form of Security.
“record date” has the meaning set forth in Section 2.07(c).
“Register” has the meaning set forth in Section 2.08(a).
“Registered Global Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the Clearing Organization for such series in accordance with Section 2.03 and bearing the legend prescribed by an applicable form of Security or supplemental indenture.
“Registered Security” means any Security registered on the Register.
“Registrar” has the meaning set forth in Section 2.08(a).
“Relevant Date” has the meaning set forth in Section 3.05.
“Responsible Officer” means, when used with respect to the Trustee, any managing director, vice president, trust associate, relationship manager, transaction manager, client service manager, any trust officer or any other officer located at the Specified Corporate Trust Office of the Trustee who customarily performs functions similar to those performed by any persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the
6
particular subject and in each such case, who shall have direct responsibility for the day to day administration of this Indenture. When used with respect to the Company, “Responsible Officer” means the Chairperson, a Deputy Chairperson, the President, a Deputy President, a Representative Executive Officer, a Senior Managing Executive Officer, a Managing Executive Officer, an Executive Officer, a Senior Corporate Officer, a Corporate Officer, a General Manager, or any other officer or assistant officer of the Company customarily performing functions similar to those performed by the persons who at the time shall be such officers.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Security” or “Securities” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
“Senior Dividend Preferred Shares” means any preferred shares of the Company ranking most senior in respect of payment as to dividends.
“Senior Indebtedness” means, unless otherwise specified in an applicable form of Security or supplemental indenture, all liabilities of the Company (including liabilities under dated subordinated obligations and any other subordinated obligations qualifying as the Company’s Tier 2 capital under applicable standards set forth in the Applicable Banking Regulations) other than (i) any liabilities under the Securities of any series (except for liabilities which have become due and payable prior to the occurrence of a Liquidation Event and remain unpaid) and (ii) any liabilities that rank, or are expressed to rank, effectively, pari passu with, or subordinate to, the Company’s liabilities under the Securities of any series in respect of payment as to liquidation distributions.
“Special Liquidation Event” means a special liquidation proceeding (tokubetsu seisan) having been commenced by or with respect to the Company pursuant to the provisions of the Japanese Companies Act.
“Special Purpose Company” means any consolidated subsidiary of the Company incorporated solely for the purposes of issuing or creating instruments qualifying as the Company’s regulatory capital.
“Special Taxation Measures Act” has the meaning set forth in Section 3.05(a).
“Specially-Related Person of the Company” has the meaning set forth in Section 3.05(a).
“Specified Corporate Trust Office” means The Bank of New York Mellon, Singapore Branch located at One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192, attention: Global Corporate Trust – Mizuho Financial Group, Inc., facsimile: +65 6883 0338, email: ctsgclientservice@bnymellon.com.
“Suspension Period” means the period commencing on the New York Banking Day immediately following the date on which the relevant Write-Down and Cancellation Notice or the relevant Going Concern Write-Down Notice is received by DTC (except that such period may commence on the second (2nd) New York Banking Day immediately following the day on which the Write-Down and Cancellation Notice or the relevant Going Concern Write-Down Notice is received by DTC, if DTC so determines in its discretion in accordance with its rules and procedures) and ending, (i) in case of the occurrence of a Viability Event, on the Discharge and Cancellation Date, (ii) in case of the occurrence of a Bankruptcy Event, on the date on which DTC writes down the full principal amount of the Securities to zero and cancels the Securities pursuant to its rules and procedures, or (iii) in the case of the receipt of a Going Concern Write-Down Notice by DTC setting forth that the Current Principal Amount of any series of the Securities will be reduced to one cent per $1,000 in Original Principal Amount, in accordance with any further instruction given by the Company relating to any subsequent interest period during which a Write-Up Event occurs, as the case may be.
“Tax Documentation” has the meaning set forth in Section 2.12.
“Total Going Concern Write-Down Amount” has the meaning set forth in Section 14.01.
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“Total Write-Up Amount” has the meaning set forth in Section 14.04.
“Transfer Agent” means (i) the transfer agent for the Securities appointed pursuant to this Indenture, which initially shall be The Bank of New York Mellon, or (ii) such other transfer agent as the Company shall specify to the Trustee as transfer agent for the Securities or any series thereof, which expression shall include any successor transfer agent.
“Trust Indenture Act” means, except as otherwise provided in Article 7, the United States Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed; provided, however, that in the event that the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article 5, shall also include any successor trustee.
“Viability Event” has the meaning set forth in Section 13.01.
“Write-Down and Cancellation” has the meaning set forth in Section 13.03.
“Write-Down and Cancellation Notice” has the meaning set forth in Section 13.02.
“Write-Down or Conversion” means, with respect to any Going Concern Loss Absorbing Instruments, the write-down or, if applicable, conversion to common shares of all or part of the Current Principal Amount outstanding of such Going Concern Loss Absorbing Instruments (including an acquisition by a holder of such Going Concern Loss Absorbing Instruments of shares of common stock in exchange for all or part of such Going Concern Loss Absorbing Instruments pursuant to the Japanese Companies Act).
“Write-Up” has the meaning set forth in Section 14.05.
“Write-Up Amount” has the meaning set forth in Section 14.04.
“Write-Up Date” has the meaning set forth in Section 14.04.
“Write-Up Event” has the meaning set forth in Section 14.04.
“Write-Up Instrument” has the meaning set forth in Section 14.04.
“Write-Up Notice” has the meaning set forth in Section 14.04.
“Written Application for Tax Exemption” has the meaning set forth in Section 3.05.
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally. The Securities of each series shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to a Board Resolution and set forth in an Officer’s Certificate or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officer or officers executing such Securities, as evidenced by his or their execution of the Securities.
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The definitive Securities shall be printed or lithographed on security printed paper or may be produced in any other manner, all as determined by the officer or officers executing such Securities, as evidenced by his or their execution of such Securities.
Section 2.02. Form of Trustee’s Certification of Authentication. Subject to the provisions of Section 5.13, the Trustee’s certificate of authentication on all Securities shall be in substantially the following form:
Certificate of Authentication:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
| Date: |
| The Bank of New York Mellon as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and unless provided for otherwise in the form of Security or in an indenture supplemental hereto, each such series shall constitute direct and unsecured obligations of the Company which are conditional and subordinated to Senior Indebtedness as set forth in Article 12. Claims in respect of each series of the Securities shall at all times rank equally and pari passu and without any preference among themselves and at least equally and ratably with all other present and future unsecured, undated, conditional and subordinated obligations of the Company (including obligations in respect of undated subordinated guarantees provided by the Company) and in priority to the rights and claims of holders of all classes of equity (including holders of preference shares (if any)) of the Company, subject to the Write-Down and Cancellation and Going Concern Write-Down provisions under Articles 13 and 14.
The Securities shall be perpetual obligations of the Company in respect of which there is no fixed maturity or mandatory redemption date.
There shall be established in or pursuant to a Board Resolution (which Board Resolution may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Company authorized thereby) and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the issue date of the Securities;
(b) the title and type of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(c) the ranking of the Securities, if different from the terms and provisions set forth herein;
(d) the initial aggregate principal amount of the Securities and any limits upon the total aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, Section 2.09, Section 2.11, Section 4.03 or Section 11.04);
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(e) the denominations in which Securities of the series shall be issuable, if different from the terms and provisions set forth herein;
(f) if other than Dollars, the coin or currency in which the Securities of the series are denominated;
(g) the date or dates, if any and to the extent applicable, on which the principal of the Securities of the series is payable;
(h) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates (in the case of Registered Securities) for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(i) if the amount of payments of principal of and interest on the Securities of the series may be determined with reference to a formula or an index, including, but not limited to, an index that is based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the manner in which such amounts shall be determined, to the extent permitted under applicable regulatory capital or other requirements of the FSA, or other applicable regulatory authority;
(j) the manner in which, and the place or places where, if applicable, the principal of and any interest on the Securities of the series shall be payable (subject to the provisions of Section 3.02);
(k) the right or requirement, if any, to extend the interest payment periods or defer or cancel the payment of interest and the duration and effect of that extension, deferral or cancellation, in the case of interest cancellation right or requirement, if different from the terms and provisions set forth herein;
(l) if applicable, any modification or elimination of any breaches or acceleration rights, or covenants with respect to the Securities of the series, the nature and extent of the subordinated ranking of, and the other subordination provisions applicable to, the Securities of the series, and any terms required by or advisable under applicable laws or regulations or rating agency criteria, including laws and regulations relating to attributes required for the Securities to qualify as capital or certain liabilities for regulatory, rating or other purposes;
(m) any conversion or exchange features of the Securities;
(n) whether and under what circumstances the Company will pay Additional Amounts on the Securities of the series for any tax, assessment or governmental charge withheld or deducted and, if so, whether it will have the option to redeem those Securities rather than pay the Additional Amounts, in each case, if other than as provided herein;
(o) the period or periods within which, the price or prices at which, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(p) the terms of the contractual subordination, write-down and cancellation, going concern write-down, write-up of principal provisions of the Securities of the series and any other provisions relevant to any of the same, if different from the terms and provisions set forth herein;
(q) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be provable in liquidation or similar proceedings pursuant to Section 4.02;
(r) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of the principal of or interest on the Securities of such series shall be payable;
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(s) if the principal of or interest on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(t) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) and any restrictions applicable to the offer, sale, transfer, exchange or delivery of Registered Securities or the payment of interest thereon;
(u) any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(v) any restrictions applicable to the offer, sale or delivery of the Securities;
(w) any provisions for the discharge of the Company’s obligations relating to the Securities, if different from the provisions set forth herein;
(x) if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(y) whether the series of Securities may be reopened in a manner consistent with the terms of this Indenture, without the consent of the Holders of the Securities of the series, for increases in the aggregate principal amount of the series or for the establishment of additional terms with respect to the Securities of the series;
(z) whether the Securities of the series shall be excluded from participation with the Securities of other series or otherwise differentiated from the Securities of other series in relation to any matter in respect of which the Securities generally or Securities of more than one series are contemplated by this Indenture to act together or otherwise be treated or affected collectively;
(aa) any write-down, write-up, bail-in or other provisions applicable to a particular series of Securities required by, relating to or in connection with, applicable regulatory capital or other requirements of the FSA or other applicable regulatory authority; and
(bb) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be identical except as to denomination, issue date, issue price and, if applicable, the date from which interest shall accrue and the date on which interest shall be first paid, if and to the extent due, except as may otherwise be provided in or pursuant to a Board Resolution and set forth in an Officer’s Certificate or in an indenture supplemental hereto, as referenced above. Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Securities of such series without the consent of any Holder.
Section 2.04. Authentication and Delivery of Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by any one Responsible Officer of the Company authorized by the Board or a Representative Executive Officer of the Company to execute any such order, without any further action by the Company. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a copy of any Board Resolution relating to such series certified by a Responsible Officer of the Company;
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(b) an executed supplemental indenture, if any;
(c) an Officer’s Certificate setting forth the form and terms of the Securities as required pursuant to Section 2.01 and Section 2.03 and prepared in accordance with Section 10.05; and
(d) an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect that
(i) the form or forms and terms of such Securities have been established by or pursuant to a Board Resolution or by a supplemental indenture as permitted by Section 2.01 and Section 2.03 in conformity with the provisions of this Indenture;
(ii) such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company;
(iii) all laws and requirements in respect of the execution and delivery by the Company of the Securities have been complied with; and
(iv) covers such other matters as the Trustee may reasonably request, including enforceability, execution, delivery and validity of the Indenture and the Securities.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company, or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 2.05. Execution of Securities. The Securities shall be signed on behalf of the Company by one (or, if so specified in the indenture supplemental hereto or Board Resolution establishing the terms thereof, more than one) Responsible Officer of the Company, which Securities may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Company; and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be a Responsible Officer of the Company, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
Section 2.07. Form, Denomination and Date of Securities; Payments of Interest.
(a) The Securities shall be issued as Registered Global Securities and in denominations as shall be specified as contemplated by Section 2.03. The Securities of any series shall be denominated in minimum principal amounts of $200,000 and in integral multiples of $1,000 in excess thereof, or such other denominations, integral multiples and currencies as the Company may designate in a form of Security or an indenture supplemental
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hereto or Board Resolution establishing the terms thereof, in an aggregate principal amount that shall equal the aggregate principal amount of the Securities that are to be issued. The Securities shall be issuable as Registered Securities without coupons. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the Responsible Officer of the Company executing the same may determine, as evidenced by such Responsible Officer’s execution of such Securities.
Any of the Securities may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with the rules of the Depositary or any securities market in which the Securities are admitted to trading, or to conform to general usage, or as the Company may determine appropriate to provide notice of any provision of Japanese law or regulation relating to taxation.
Each Registered Global Security shall be delivered by the Trustee to and deposited with the Depositary or, pursuant to the Depositary’s instructions, shall be delivered by the Trustee on behalf of the Depositary to and deposited with the Depositary’s custodian, and in either case shall be registered in such name as the Depositary shall specify. Registered Global Securities may be deposited with such other Depositary that is a clearing agency registered under the Exchange Act as the Company may from time to time designate in writing to the Trustee, and shall bear such legend as may be appropriate. For purpose of Section 2.07(a), “Depositary” means, with respect to the Registered Global Securities, DTC or such other Person as shall be designated as Depositary by the Company pursuant to the foregoing sentence.
(b) Each Security shall be dated the date of its authentication and shall bear interest, if any, from the date, and shall be payable, if and to the extent due, on the dates, specified on the reverse of the applicable form of Security, which shall be specified as contemplated by Section 2.03.
(c) The Person in whose name any Registered Security of any series is registered on any record date applicable to the series with respect to any interest payment date for the series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to such record date and prior to such interest payment date, except if and to the extent the Company does not pay the interest due on such interest payment date for such series (and to the extent such interest is not otherwise cancelled pursuant to any provision herein), in which case such unpaid interest shall be paid to the Persons in whose names Outstanding Securities for the series are registered on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such previously unpaid interest) established by notice given by mail by or on behalf of the Company to the holders of Securities of the series not less than 15 days preceding such subsequent record date. The term “record date” as used with respect to any interest payment date (except a date for payment of previously unpaid interest) shall have the meaning set forth in the applicable form of reverse of the Securities of any particular series, or, if no such date is so specified, shall be the day five Business Days immediately preceding the applicable interest payment date.
Section 2.08. Registration, Transfer and Exchange of Securities.
(a) The Bank of New York Mellon, acting as the Company’s agent for such purposes (the “Registrar”, which expression shall include any successor registrar), will keep books for the registration, transfer and exchange of the Securities at the Specified Corporate Trust Office of the Registrar. The Registrar shall also act as the Transfer Agent with respect to the transfer or exchange of the Securities or a beneficial interest in the Securities. The Bank of New York Mellon is hereby appointed by the Company, and accepts such appointment, as initial Registrar and initial Transfer Agent. The Registrar will keep a record of all Securities (the “Register”) at said office. The Register will show the amount of the Securities, the date of issue, all subsequent transfers and changes of ownership in respect thereof and the names, tax identifying numbers (if relevant to a specific holder), addresses of the registered holders of the Securities and any payment instructions with respect thereto (if different from a holder’s registered address). The Registrar will also maintain a record which will include
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notations as to whether the Securities have been paid, fully or partially written down, written up or cancelled, and, in the case of mutilated, destroyed, stolen or lost Securities, whether such Securities have been replaced. In the case of the replacement of any of the Securities, such records will include notations of each Security so replaced, and the Security issued in replacement thereof. In the case of full or partial write-down, write-up or the cancellation of any of the Securities, such records will include notations of each Security so fully or partially written down, written up or cancelled and the date on which such Security was fully or partially written down, written up or cancelled. The Registrar shall upon prior written request make the Register and such records available during normal office hours to the Company, or any Person authorized by the Company in writing, for inspection and for the taking of copies thereof or extracts therefrom, and, at the expense of the Company, the Registrar shall deliver to such Persons all lists of Securityholders, their addresses and amounts of such holdings as they may request.
The respective principal amounts of each Registered Global Security may be increased or decreased by endorsement on the Register by the Registrar of appropriate notations evidencing the dates and amounts of such increases and decreases in connection with transactions contemplated or permitted hereby.
The Register and the records referred to above shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time.
(b) Upon due presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.02, the Company shall execute, and the Trustee shall authenticate and deliver, in the name or names of the transferee or transferees, a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount.
Any Security or Securities of any series may be exchanged for a new Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Company for the purpose as provided in Section 3.02, and the Company shall execute, and the Trustee shall authenticate and deliver, in exchange therefor the new Security or Securities of the same series which the Holder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
The Company shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of a notice of redemption of the Securities of such series to be redeemed, or (b) any Securities selected, called or being called for redemption except, in the case of any Security where public notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
(c) Transfer, registration and exchange shall be permitted as provided in this Section 2.08 without any charge to the Securityholder except for the expenses of delivery (if any) not made by regular mail (such delivery to be at the sole risk and expense of the transferee or holder, as applicable) and except, if the Company or the Registrar shall so require, the payment of a sum sufficient to cover any stamp duty, tax or governmental charge or insurance charge that may be imposed in relation thereto. Registration of the transfer of a Security by the Registrar shall be deemed to be the sole acknowledgment of such transfer on behalf of the Company.
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Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, upon the request of the Trustee, the Paying Agent or the registered Holder thereof, the Company in its discretion may execute, and, upon the written request of any officer of the Company, the Trustee shall authenticate and deliver a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof and in the case of mutilation or defacement the applicant shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or its agent) connected therewith. In case any Security which has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Company and the Trustee and any agent of the Company or the Trustee such security and/or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee and any agent of the Company or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions of this Section, by virtue of the fact that any such Security is destroyed, lost or stolen, shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.10. Cancellation of Securities. All Securities surrendered for payment, redemption, registration of transfer or exchange, or, to the extent required, following a Write-Down and Cancellation, if surrendered to the Company, any agent of the Company or the Paying Agent, shall be delivered to the Paying Agent for cancellation or, if surrendered to the Paying Agent, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Paying Agent shall dispose of cancelled Securities held by it in accordance with its procedures for the disposition of cancelled securities in effect as of the date of such disposition and, upon receipt of a written request from the Company, deliver a certificate of disposition to the Company. If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Paying Agent for cancellation. Upon any Write-Down and Cancellation Notice being given to the Paying Agent, the Paying Agent shall effect such cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the
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Company with the reasonable concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Company shall execute definitive Securities of such series, and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Company for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless otherwise established pursuant to Section 2.03.
Section 2.12. Japanese Withholding Tax.
(a) In compliance with Japanese tax laws and the practices of tax authorities in Japan, in respect of any interest payment on a series of Securities issued in global or book-entry form pursuant to this Indenture or any supplemental indenture hereto, any Paying Agent shall act in accordance with the “Working Draft of Operating Manual on Japanese Withholding Tax on Certain International Issues Held Through DTC” (as amended) as published by notice of The Depository Trust Company (the “DTC Procedures”), if DTC is acting as Clearing Organization with respect to such series or with respect to depositary interests representing the Securities of such series, or in accordance with such other similar procedures as may be established by another Clearing Organization. Except as otherwise provided in this Indenture, any such Paying Agent shall be responsible only for performing such services as are specifically provided for in the DTC Procedures or such other procedures actually known by the Paying Agent, as applicable and as may be amended or modified and communicated to the Paying Agent from time to time. Any such Paying Agent and the Company may rely on the information provided in the Written Application for Tax Exemption (as defined below) and other documentation in the absence of actual knowledge to the contrary. If any interest payment on a series of Securities is due to be made hereunder and if and so long as payments of interest (if any) by the Company to any Paying Agent may be made without deduction or withholding for or on account of Japanese tax only upon receipt of certifications, the Written Application for Tax Exemption, notifications or other documentation in compliance with Japanese tax law requirements (“Tax Documentation”), the relevant Paying Agent at the direction of the Company shall (i) collect the required Tax Documentation from the Clearing Organization (or Holders of the Securities, if definitive Securities representing such series of Securities have been issued); (ii) provide any required confirmations of information available to it; and (iii) promptly deliver such Tax Documentation so received to the Company for filing with the relevant Japanese district tax office. Any such Paying Agent may rely on the information provided in Tax Documentation (including where relevant, supporting documentation) in the absence of actual knowledge that such information is incorrect. Neither the Company nor the Paying Agent shall have any liability for any withholding of tax arising as a result of a late delivery of the required Tax Documentation or incorrectly completed Tax Documentation.
(b) If a Holder of the Securities or the holder of a beneficial interest in the Securities satisfies the requirements for claiming an exemption from Japanese withholding tax only on or after the day immediately preceding the relevant interest payment date, the Company or the Paying Agent acting at the direction of the Company shall have no obligation to treat such Holder or holder of beneficial interest as being eligible for exemption from Japanese withholding tax or to repay any amount withheld to the Holder or holder of beneficial interest.
(c) The Paying Agent shall furnish forms of certifications to Holders upon request only if the Securities are in certificated or definitive form, subject to receiving such forms of certifications from the Company, and shall use reasonable efforts to assist Holders in claiming available exemptions, but shall not be liable for a Holder’s failure to qualify for such an exemption. Based on the Tax Documentation received, the Paying Agent will make the appropriate calculations of interest payable after making the relevant deductions in accordance with this Section. The Paying Agent will remit all amounts of tax withheld under this Section to or to the written order of
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the Company as soon as reasonably practicable in order to enable the Company to make the necessary payments to the relevant tax office in accordance with applicable laws and regulations. The Paying Agent shall retain copies of Tax Documentation for a period of five years as calculated under Japanese tax law and shall make such documentation available for inspection by the Company and any relevant tax authorities in Japan upon written request given in reasonable notice from the Company.
Section 2.13. CUSIP, ISIN Numbers and Common Codes. The Company, in issuing the Securities of any series, may use CUSIP, ISIN numbers and/or Common Codes, if then generally in use, and, if so, the Trustee shall use CUSIP, ISIN numbers and/or Common Codes in notices provided hereunder as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any such notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any notified event or action shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP, ISIN numbers or Common Codes.
Section 2.14. Final and Conclusive Determination. All determinations, elections and calculations that the Company may make under the interest cancellation provisions, the Going Concern Write-Down provisions, the Write-Down and Cancellation provisions, the Write-Up provisions and the subordination provisions set forth herein, whether made by the Company or a designee, which may be the Company’s affiliate, as selected and separately appointed by the Company as designee for the Securities of a series (the “Designee”), in the absence of manifest error, will be final and conclusive for all purposes and binding on the Company, the Trustee, the Paying Agent and the Holders and beneficial owners of the Securities. If made by the Designee, all such determinations, elections and calculations will be made after consulting with the Company, and the Designee will not make any such determination, election or calculation to which the Company objects.
ARTICLE 3
COVENANTS OF THE COMPANY
Section 3.01. Payment of Principal and Interest. The Company covenants and agrees for the benefit of each series of Securities (subject to the interest cancellation provisions set forth in this Article 3, the Write-Down and Cancellation and Going Concern Write-Down provisions set forth in this Indenture or other similar provisions that may be established pursuant to Section 2.03) that it will duly and punctually pay or cause to be paid, if and to the extent due, the principal of, and interest on, each of the Securities of such series (together with any Additional Amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such Securities. Subject to any other provisions that may be established pursuant to Section 2.03, the interest on Securities (together with any Additional Amounts payable pursuant to the terms of such Securities) shall be payable, if and to the extent due, only to or upon the written order of the Holders thereof and, at the option of the Company, may be paid by wire transfer. The Trustee and the Paying Agent shall not be responsible in any manner whatsoever to pay any administrative costs imposed by banks in connection with the making of any payments by wire transfer. Neither the Trustee nor any Paying Agent shall have any obligation to advance its own funds, and all payments on the Securities shall be made from immediately available funds deposited by the Company no later than 10:00 a.m. New York time on the relevant payment date.
The interest, if any, due in respect of any temporary or definitive Security, together with any Additional Amounts payable in respect thereof, as provided in the terms and conditions of such Security, shall be payable, subject to the conditions set forth in Section 3.05, only upon presentation of such Security to the Trustee thereof for notation thereon of the payment of such interest. Except as provided in Section 3.05, no Additional Amounts will be payable as a result of the withholding or deduction of any taxes or duties of whatever nature imposed or levied as a result of any laws or regulations. Any amount withheld from payments on the Securities will be treated as paid to the Holders thereof.
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Section 3.02. Offices for Payments, etc. So long as any of the Securities of any series remains Outstanding, the Company will maintain in each Place of Payment the following for the series: an office or agency (a) where the Securities of the series may be presented or surrendered for payment, (b) where Registered Securities of the series may be presented or surrendered for registration of transfer and for exchange as provided in this Indenture and (c) where notices and demands to or upon the Company in respect of the Securities of the series or of this Indenture may be served. The Company will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section 2.03, the Company hereby initially designates the Corporate Trust Office as the office to be maintained by it for each such purpose in relation to Registered Securities. In case the Company shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations, surrenders and demands may be made and notices may be served at the Corporate Trust Office.
The Company may from time to time designate one or more offices or agencies (in addition to or in lieu of the office or agency established pursuant to the preceding paragraph) where the Securities of a series may be presented or surrendered for payment and where Registered Securities of that series may be presented or surrendered for registration of transfer or for exchange as provided in this Indenture, and the Company may from time to time rescind any such designation, as the Company may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain the agencies provided for in this Section. The Company will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
Section 3.04. Paying Agents. The Bank of New York Mellon is hereby appointed by the Company, and accepts such appointment, as initial Paying Agent. The initial Paying Agent hereby agrees, and whenever the Company shall appoint a Paying Agent other than the Trustee, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series or of the Trustee, and that it will pay the principal of, and interest on, each series of the Securities as provided in this Indenture,
(b) that (unless such Paying Agent is the same bank as the Trustee) it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c) that (unless such Paying Agent is the same bank as the Trustee) it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in Section 3.04(b) above.
The Company will, no later than 10:00 a.m. New York time on each due date of the principal of or interest on the Securities of such series, deposit or cause to be deposited with the Paying Agent a sum sufficient to pay such principal or interest so becoming due, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due. The Company will promptly notify the Trustee of any failure to take such action.
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Anything in this Section to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Company or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 9.03 and Section 9.04.
Section 3.05. Additional Amounts. All payments of principal and interest in respect of the Securities by the Company shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments, levies or governmental charges of whatever nature imposed or levied by or on behalf of Japan, or any political subdivision of, or any authority in, or of, Japan having power to tax (“Japanese Taxes”), unless such withholding or deduction is required by law. In that event, the Company shall pay to the Holder of each Security such additional amounts (all such amounts being referred to herein as “Additional Amounts”) as may be necessary so that the net amounts received by it after such withholding or deduction shall equal the respective amounts which would have been receivable in respect of such Security in the absence of such withholding or deduction, provided that, no such Additional Amounts shall be payable in relation to any such withholding or deduction in respect of any payment on the Securities:
(a) to or on behalf of a Securityholder or beneficial owner of a Security who is an individual non-resident of Japan or a non-Japanese corporation and is liable for such Japanese Taxes in respect of such Security by reason of its (1) having some connection with Japan other than the mere holding of such Security, or (2) being a person having a special relationship with the Company as described in Article 6, paragraph 4 of the Act on Special Measures Concerning Taxation of Japan (Act No. 26 of 1957, as amended) (the “Special Taxation Measures Act” and, each such person, a “Specially-Related Person of the Company”);
(b) to or on behalf of a Securityholder or beneficial owner of a Security (A) who would be exempt from any such withholding or deduction but who fails to comply with any applicable requirement to provide certification, information, documents or other evidence concerning its nationality, residence, identity or connection with Japan, including any requirement to provide Interest Recipient Information (as defined below) or to submit a Written Application for Tax Exemption (as defined below) to the Company or a Paying Agent, as appropriate, or (B) whose Interest Recipient Information is not duly communicated through the Participant (as defined below) and the relevant Clearing Organization to a Paying Agent;
(c) to or on behalf of a Securityholder or beneficial owner of a Security who is for Japanese tax purposes treated as an individual resident of Japan or a Japanese corporation (except for (A) a Designated Financial Institution (as defined below) who complies with the requirement to provide Interest Recipient Information or to submit a Written Application for Tax Exemption and (B) an individual resident of Japan or a Japanese corporation who duly notifies (directly or through the Participant or otherwise) a Paying Agent of its status as not being subject to Japanese Taxes to be withheld or deducted by the Company, by reason of such individual resident of Japan or Japanese corporation receiving interest on the relevant Security through a payment handling agent in Japan appointed by it);
(d) to or on behalf of a Securityholder or beneficial owner of a Security who presents a Security for payment (where presentation is required) more than 30 days after the Relevant Date (as defined below), except to the extent that such Securityholder or beneficial owner of a Security would have been entitled to such Additional Amounts on presenting the same for payment on any date during such 30-day period;
(e) to or on behalf of a Securityholder who is a fiduciary or partnership or is not the sole beneficial owner of the payment of the principal of, or any interest on, any Security, and Japanese law requires the payment to be included for tax purposes in the income of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner, in each case, who would not have been entitled to such Additional Amounts had it been the holder of such Security; or
(f) in any case that is any combination of any of the items above.
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As used herein, the “Relevant Date” means the date on which any payment in respect of a Security first becomes due, except that, if the full amount of the moneys payable has not been duly received by the Paying Agent on or prior to such due date, it means the date on which, the full amount of such moneys having been so received, notice to that effect is duly given to the Securityholders in accordance with this Indenture.
Where a Security is held through a participant of a Clearing Organization or a financial intermediary (each, a “Participant”), in order to receive payments free of withholding or deduction by the Company for, or on account of, Japanese Taxes, if the relevant beneficial owner of a Security is (1) an individual non-resident of Japan or a non-Japanese corporation that in either case is not a Specially-Related Person of the Company or (2) a Japanese financial institution (a “Designated Financial Institution”) falling under certain categories prescribed by Article 6, paragraph 11 of the Special Taxation Measures Act and the cabinet order thereunder (Cabinet Order No. 43 of 1957), as amended (together with the ministerial ordinance and other regulations thereunder, the “Act”), all in accordance with the Act, such beneficial owner of a Security must, at the time of entrusting a Participant with the custody of the relevant Security, provide certain information prescribed by the Act to enable the Participant to establish that such beneficial owner of a Security is exempted from the requirement for Japanese Taxes to be withheld or deducted (the “Interest Recipient Information”), and advise the Participant if such beneficial owner of a Security ceases to be so exempted, including the case where the relevant beneficial owner of the Security who is an individual non-resident of Japan or a non-Japanese corporation becomes a Specially-Related Person of the Company.
Where a Security is not held by a Participant, in order to receive payments free of withholding or deduction by the Company for, or on account of, Japanese Taxes, if the relevant beneficial owner of a Security is (i) an individual non-resident of Japan or a non-Japanese corporation that in either case is not a Specially-Related Person of the Company or (ii) a Designated Financial Institution, all in accordance with the Act, such beneficial owner of a Security must, prior to each date on which it receives interest, submit to the Company or a Paying Agent, as appropriate, a written application for tax exemption (hikazei tekiyo shinkokusho) (a “Written Application for Tax Exemption”) in the form obtainable from the Company or any Paying Agent, as appropriate, stating, among other things, the name and address (and, if applicable, the Japanese individual or corporation ID number) of such beneficial owner of a Security, the title of the Securities, the relevant interest payment date, the amount of interest payable and the fact that such beneficial owner of a Security is qualified to submit the Written Application for Tax Exemption, together with documentary evidence regarding its identity and residence.
The obligation to pay Additional Amounts shall not apply to (i) any estate, inheritance, gift, sales, excise, transfer, personal property or any similar tax, assessment or other governmental charge or (ii) any tax, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments of principal of or interest on the Securities; provided that, except as otherwise set forth in the Securities and this Indenture, the Company shall pay all stamp and other duties, if any, which may be imposed by Japan, the United States or any respective political subdivision or any taxing authority thereof or therein, with respect to this Indenture or as a consequence of the issuance of the Securities.
No Additional Amounts will be payable for or on account of any deduction or withholding imposed pursuant to Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended, the U.S. Treasury regulations thereunder and any other official guidance thereunder (“FATCA”), any intergovernmental agreement entered into with respect to FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing, or relating to, FATCA, similar legislation under the laws of any other jurisdiction, or any such intergovernmental agreement.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, or interest on, or in respect of, any Security, such mention shall be deemed to include the payment of Additional Amounts provided for in this Section 3.05, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.05, and express mention of the payment of
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Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in other provisions hereof where such express mention is not made.
Section 3.06. Certificate of the Company. So long as any Securities are Outstanding under this Indenture, the Company will furnish to the Trustee within 120 days of the end of the Company’s fiscal year each year (beginning with the year following the first issuance of any Securities pursuant to this Indenture) a brief certificate (which need not comply with Section 10.05) from the Responsible Officer of the Company, as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under this Indenture) substantially in the form set forth in Exhibit A.
Section 3.07. Securityholders Lists. If and so long as the Trustee shall not be the Registrar for the Securities of any series, the Company will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act (a) not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished.
Section 3.08. Statement by Officers as to Breach. The Company shall deliver to the Trustee, reasonably promptly after the Company becomes aware of the occurrence of an event which, with notice or the lapse of time or both, would constitute a breach, an Officer’s Certificate setting forth the details of such event and the action which the Company proposes to take with respect thereto.
Section 3.09. Reports by the Company. The Company covenants to file with the Trustee, within 30 days after the Company files the same with the Commission, copies of any annual reports and of the information, documents and other reports that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act as long as any Securities are Outstanding hereunder. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section 3.10. Agreement to Interest Cancellation. Each Holder or beneficial owner of a Security, by its acquisition of such Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that, to the extent and in the manner set forth herein or in the Securities that:
(a) no amount of interest (including Additional Amounts with respect thereto, if any) shall become due and payable in respect of the relevant interest period to the extent that it has been (x) cancelled (in whole or in part) by the Company at its sole discretion (including pursuant to any capital distribution constraints plan submitted by the Company to the FSA under the Applicable Banking Regulations) as a result of optional interest payment cancellation provisions set forth in Section 3.11, and/or (y) required to be cancelled (in whole or in part) as a result of the Interest Payable Amount Limitation pursuant to the mandatory interest payment cancellation provisions set forth in Section 3.12;
(b) a cancellation of interest (including Additional Amounts with respect thereto, if any) (in each case, in whole or in part) in accordance with the terms of the Securities or this Indenture shall not constitute a default or breach in payment or otherwise under the terms of the Securities or this Indenture, as applicable;
(c) interest (including Additional Amounts with respect thereto, if any) will only be due and payable on an interest payment date to the extent it is not cancelled in accordance with the provisions set forth in Section 3.11 and Section 3.12;
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(d) any interest (including Additional Amounts with respect thereto, if any) cancelled (in each case, in whole or in part) in the circumstances provided in Section 3.11 and Section 3.12 shall not be due and shall not accumulate or be payable at any time thereafter, and Holders or beneficial owner of the Securities shall have no rights thereto or to receive any additional interest or compensation as a result of such cancellation;
(e) except as otherwise described in the Securities or prohibited by applicable law or regulations, the Company has the right to use the funds from cancelled payments of interest (including Additional Amounts with respect thereto, if any) without restriction; and
(f) such Holder or beneficial owner shall be deemed to have authorized, directed and requested DTC and any other intermediary and the Trustee and the Agents to take any and all necessary action, if required, to implement an interest payment cancellation of the Securities without any notice or further action or direction on the part of such Holder.
Section 3.11. Optional Cancellation of Interest Payments.
(a) If the Company determines that it is necessary to cancel payment of the interest on any series of Securities at any time and in its sole discretion (including pursuant to any capital distribution constraints plan submitted by the Company to the FSA under the Applicable Banking Regulations), the Company may cancel payment of all or part of the interest accrued on such series of Securities on an interest payment date (including the Additional Amounts with respect thereto, if any). The Company may cancel any payment of all or part of interest pursuant to the foregoing, even if no cancellation of interest is required or the amount so cancelled exceeds the amount the Company is required to cancel due to the Interest Payable Amount Limitation pursuant to the mandatory interest payment cancellation provisions set forth in Section 3.12.
If the Company determines not to make an interest payment (or if the Company determines to make a payment of a portion, but not all, of such interest payment) on any interest payment date, such non-payment will be deemed to be an effective cancellation of such interest payment (or the portion of such interest payment not paid) without any notice or further action being taken or any other condition being satisfied.
(b) (x) If the Company determines to cancel an interest payment on any series of Securities (in whole or in part) in its sole discretion on an interest payment date pursuant to this Section and (y) such determination is made by the Company otherwise than pursuant to applicable laws or orders or administrative actions of the FSA or any other relevant Japanese governmental organizations (including an order of the FSA to submit and carry out a capital distribution constraints plan under the Applicable Banking Regulations), , (i) the Company shall procure that its board of directors shall not resolve, or present its own proposal at a general meeting of shareholders, to make a payment of a cash dividend on the Company’s common shares and other shares (including any Senior Dividend Preferred Shares) to shareholders as of the immediately preceding record date of dividend payment, and (ii) the Company shall procure that the ratio of the amount that the Company cancels in respect of interest or dividends on or in respect of any Additional Tier 1 Liabilities that are due and payable on the same date as such interest payment date to the full amount of such interest or dividends which should have been paid before cancellation on such date be at least equal to the ratio of the amount that the Company cancels in respect of the interest on such series of Securities on such interest payment date to the full amount of such interest on such series of Securities which should have been paid before cancellation on such interest payment date.
For the purposes of the determination of the ratio of the amount that the Company cancels in respect of interest or dividends on or in respect of any Additional Tier 1 Liabilities, interest and dividends on or in respect of any Additional Tier 1 Liabilities shall be deemed to be due and payable on the same date as the applicable interest payment date in relation to the relevant series of Securities, notwithstanding that the applicable interest or dividend payment dates in respect to any Additional Tier 1 Liabilities and the relevant series of Securities are not the same date solely due to the effect of any adjustments resulting from the methods of determining the business days in relation to such Additional Tier 1 Liabilities and the Business Days in relation to such series of Securities.
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Section 3.12. Mandatory Cancellation of Interest Payments due to Interest Payable Amount Limitation. In addition to the Company’s ability to cancel interest payments in its sole discretion, as set forth in Section 3.11, interest payments on any series of Securities will be subject to a limitation based on the Interest Payable Amount (such limitation, the “Interest Payable Amount Limitation”) and, as a result, the Company shall be prohibited from paying, and shall cancel, all or part of the interest on such series of Securities on an interest payment date (including the Additional Amounts with respect thereto, if any), if, and to the extent that, the interest payable on such series of Securities on such interest payment date (including the Additional Amounts with respect thereto, if any) exceeds the Interest Payable Amount.
“Interest Payable Amount” means, in respect of any interest payment date with respect to a series of Securities, the product of the Adjusted Distributable Amount on such interest payment date and a ratio, the numerator of which is the aggregate amount of interest (including the Additional Amounts with respect thereto, if any) that should have been paid on such series of Securities on such interest payment date, and the denominator of which is the aggregate amount of interest (including the Additional Amounts with respect thereto, if any) that should have been paid on such of Securities on such interest payment date and dividends or interest (including any amounts with respect thereto substantially similar to the Additional Amounts, if any) that should have been paid in respect of any Parity Securities on the same date as such interest payment date (rounding any amount less than a whole cent down to the nearest whole cent).
“Adjusted Distributable Amount” means, in respect of any date and with respect to a series of Securities, the distributable amounts (bunpai kano gaku) of the Company on such date as calculated in accordance with the Japanese Companies Act after deducting the sum of any dividend or interest (including Additional Amounts with respect thereto, or any amounts with respect thereto substantially similar to the Additional Amounts, as applicable, if any) that has been paid in respect of such series of Securities, any Parity Securities and any Junior Securities from the beginning of the fiscal year of the Company in which such date falls until the date immediately preceding such date.
For the purposes of the calculation of the Interest Payable Amount or the Adjusted Distributable Amount, any dividend or interest (including the Additional Amounts with respect thereto, or any amounts with respect thereto substantially similar to the Additional Amounts, as applicable, if any) shall be deemed to be paid in respect of the relevant series of Securities, any Parity Securities and any Junior Securities on the same date, notwithstanding that the applicable interest or dividend payment dates in respect to such series of Securities, any Parity Securities and any Junior Securities are not the same date solely due to the effect of any adjustments resulting from the methods of determining the Business Days in relation to such series of Securities and the business days in relation to any Parity Securities and any Junior Securities.
For the purposes of the calculation of the Interest Payable Amount or the Adjusted Distributable Amount, the amounts of interest or dividends (including the Additional Amounts with respect thereto, or any amounts with respect thereto substantially similar to the Additional Amounts, as applicable, if any) in respect of the relevant series of Securities, any Parity Securities and any Junior Securities that are not denominated in Japanese yen shall be calculated in Japanese yen in a manner that the Company deems appropriate, and the Interest Payable Amount and the amount of interest (including the Additional Amounts with respect thereto, if any) on such series of Securities that is required to be cancelled on the relevant interest payment date shall be initially calculated in Japanese yen and converted into U.S. dollars or any other currency in which such series of Securities are denominated in a manner that the Company deems appropriate. The Trustee and the Paying Agent shall not be required to calculate or verify any amount or monitor the compliance by the Company of its obligations under Article 3.
Section 3.13. Calculating Interest Payments upon the Occurrence of a Capital Ratio Event or Write-Up of the Securities.
(a) Except in the circumstances where a Write-Up Date occurs during an interest period as set forth in the following paragraph (b), if one or more Capital Ratio Events occur during an interest period, a series of
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Securities shall, for the entirety of such interest period, bear interest based on the Current Principal Amount of such series of Securities (after giving effect to the Going Concern Write-Downs, as if the Going Concern Write-Downs resulting from such Capital Ratio Events had occurred on the first day of such interest period) on the immediately following interest payment date.
(b) If a Write-Up Date occurs during an interest period, a series of Securities shall bear interest for such interest period as follows:
(i) for the portion of the interest period beginning on, and including, the first day of such interest period and ending on, but excluding, the relevant Write-Up Date (the “pre-Write-Up Period”), such series of Securities shall bear interest based on the Current Principal Amount of such series of Securities on the date immediately preceding the Write-Up Date, without giving effect to the Write-Up; and
(ii) for the portion of the interest period beginning on, and including, the Write-Up Date and ending on, but excluding, the immediately following interest payment date (the “post-Write-Up Period”), such series of Securities shall bear interest on the Current Principal Amount of such series of Securities on the immediately following interest payment date, after giving effect to the Write-Up; provided, however, that if one or more Capital Ratio Events occurs during the post-Write-Up Period, then for the post-Write-Up Period, such series of Securities shall bear interest based on the Current Principal Amount of such series of Securities (after giving effect to the Going Concern Write-Downs as if the Going Concern Write-Downs resulting from such Capital Ratio Events had occurred on the first day of the post-Write-Up Period) on the immediately following interest payment date.
Notwithstanding the foregoing, if (x) a Write-Up Date occurs during an interest period, (y) one or more Capital Ratio Events occurs during the post-Write-Up Period, and (z) the Current Principal Amount of a series of Securities (after giving effect to the Going Concern Write-Downs as if the Going Concern Write-Downs resulting from such Capital Ratio Events had occurred on the first day of the post-Write-Up Period) on the immediately following interest payment date is less than the Current Principal Amount of such series of Securities on the date immediately preceding the Write-Up Date, then such series of Securities shall, for the entirety of such interest period, including the pre-Write-Up Period, bear interest based on the Current Principal Amount of such series of Securities (after giving effect to the Going Concern Write-Downs as if the Going Concern Write-Downs resulting from such Capital Ratio Events had occurred on the first day of such interest period) on the immediately following interest payment date.
(c) For subsequent interest periods, such series of Securities shall continue to bear interest based on such Current Principal Amount of such series of Securities on the relevant interest payment date until any subsequent interest period during which one or more Capital Ratio Events or a Write-Up Date occur again in accordance with the terms of such series of Securities.
(d) If, during any interest period, more than one Write-Up occurs, interest for such period shall be calculated by the Company in a manner that the Company deems appropriate based on the general principles used to calculate interest on the relevant series of Securities described in the immediately preceding paragraphs and the Applicable Banking Regulations.
Section 3.14. Cessation of Accrual of Interest. Notwithstanding anything to the contrary contained herein or in the terms of the Securities, no interest shall accrue on the Securities (i) during the period when the Current Principal Amount of the Securities is, or is deemed under Section 3.13 to be, one cent per $1,000 in Original Principal Amount, (ii) after the date fixed for redemption, or (iii) during any period where a Liquidation Event occurs and continues.
Section 3.15. Effect of a Cancellation of Interest Payment. Under this Indenture, interest payments are non-cumulative, and any interest amount (including Additional Amounts with respect thereto, if any), the payment of which is cancelled (in whole or in part) either in the Company’s sole discretion or because such
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cancellation is mandatory due to the Interest Payable Amount Limitation, will be deemed not to have accrued and will not be due and payable at any time thereafter, and the Company shall be discharged and released from any and all of its obligations to pay such cancelled interest (and Additional Amounts with respect thereto, if any) on the Securities. Non-payment of such cancelled interest (or Additional Amounts with respect thereto, if any) shall not constitute a breach, a default, an event of default or an event of acceleration under the terms of the Securities or this Indenture. Accordingly, Holders of the Securities will not have any claim therefor, whether or not interest is paid in respect of any other period.
Each Holder or beneficial owner of Securities by its acceptance thereof shall thereby agree that if any payment of interest in respect of the Securities all or part of which should have not been paid to such Holder or beneficial owner upon the proper application of the optional or mandatory interest payment cancellation provisions in this Indenture is made to such Holder or beneficial owner, such payment shall be deemed null and void, and such Holder or beneficial owner or the Trustee or paying agent (to the extent it has not paid such amount to any Holder) (as the case may be) shall be obliged to return the amount of the payment immediately to the Company (and, in the case of return from the Holders to the Company, to an account or in any other manner to be advised by the Company by notice to the Holders), and shall also thereby agree that any liabilities of the Company to such Holder or beneficial owner in respect of interest on the Securities which was cancelled under the optional or mandatory interest payment cancellation provisions in this Indenture shall not be set off against any liabilities of such Holder or beneficial owner owed to the Company.
Section 3.16. Subject to Other Provisions. Notwithstanding anything to the contrary contained herein or in the terms of the Securities, any interest payments under the Securities shall be subject to the Going Concern Write-Down provisions set forth in Article 14, the Write-Down and Cancellation provisions set forth in Article 13, the Write-Up provisions set forth in Article 14, the cancellation of interest payment provisions set forth in Article 3, and the subordination provisions set forth in Article 12.
Section 3.17. Notices of Cancellation of Interest Payments. If the Company determines to cancel all or part of a payment of interest on a series of Securities in its sole discretion under Section 3.11, including pursuant to any capital distribution constraints plan submitted by the Company to the FSA under the Applicable Banking Regulations, or if the Company cancels all or part of a payment of interest (including the Additional Amounts with respect thereto, if any) on a series of Securities because such cancellation is required due to the Interest Payable Amount Limitation under Section 3.12, the Company will endeavor to provide a written notice of such cancellation to the Holders of such series of Securities, the Trustee and the Paying Agent in accordance with the terms of the Indenture at least ten Business Days prior to the relevant interest payment date. Such notice shall be substantially in the form attached hereto as Exhibit B (the “Cancellation of Interest Payments Notice”) and include, (i) if the Company determines to cancel all or part of a payment of interest (including the Additional Amounts with respect thereto, if any) on such series of Securities in its sole discretion under Section 3.11, including pursuant to any capital distribution constraints plan submitted by the Company to the FSA under the Applicable Banking Regulations, the aggregate amount of the interest to be cancelled in respect of the entire series of Securities and the aggregate amount of interest to be paid (if any) in respect of the entire series of Securities, or (ii) if the Company cancels all or part of a payment of interest (including the Additional Amounts with respect thereto, if any) on such series of Securities because such cancellation is required due to the Interest Payable Amount Limitation under Section 3.12, the Interest Payable Amount in respect of the entire series of Securities, on the relevant interest payment date. Any failure or delay by the Company to provide such notice will not have any impact on the effectiveness of, or otherwise invalidate, any such cancellation of interest payment, nor give holders of the Securities any rights as a result of such failure.
Section 3.18. Notice to Holders. The Company shall deliver to the Trustee an advance copy of any notice to Holders before it is delivered to Holders (except for Cancellation of Interest Payments Notices, Write-Down and Cancellation Notices, Going Concern Write-Down Notices and Write-Up Notices). Except for a Cancellation of Interest Payments Notice, a Write-Down and Cancellation Notice, a Going Concern Write-Down Notice or a Write-Up Notice substantially in the form attached hereto as Exhibit B, Exhibit C, Exhibit D or Exhibit E,
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respectively, The Bank of New York Mellon’s name may not be used by the Company in any such notice without express permission of the Trustee.
ARTICLE 4
LIMITED REMEDIES OF THE TRUSTEE AND HOLDERS
Section 4.01. No Events of Default or Rights of Acceleration; Subordination upon Liquidation Event. Non-payment of principal of or interest on any series of the Securities (including Additional Amounts with respect thereto, if any) or breach of any covenant in this Indenture or the Securities or any other event shall not constitute an event of default or an event of acceleration under this Indenture or the Securities or give rise to any right of the Holders or the Trustee to declare the principal of or interest on any series of Securities to be due and payable or accelerate any payment of such principal or interest, and there are no events of default or circumstances in respect of the Securities that entitle the Holders of Securities or the Trustee to require that the Securities become immediately due and payable.
Upon the occurrence and continuation of a Liquidation Event, the rights of the holders of any series of Securities will be subordinated pursuant to the subordination provisions set forth in Article 12 of this Indenture.
Section 4.02. Trustee May File Proof of Claim. Subject to the provisions of subordination, Write-Down and Cancellation, Going Concern Write-Down, or cancellation of interest payments (including Additional Amounts with respect thereto, if any) set forth in this Indenture or related provisions of the Securities, in case there shall be pending judicial proceedings relative to the Company or any other obligor upon the Securities for its liquidation, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or otherwise, shall be entitled and empowered, by intervention in such judicial proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, and its agents, attorneys and counsel, and for reimbursement of all liabilities and reasonable expenses incurred, and all advances made, by the Trustee, except as a result of negligence, bad faith or willful misconduct) and of the Securityholders allowed in any judicial proceedings relative to the Company or other obligor upon the Securities of any series, or to the creditors or property of the Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a liquidator, trustee, receiver or custodian in liquidation proceedings or person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, and its agents, attorneys and counsel, and liabilities and reasonable expenses incurred, and all advances made, by the Trustee except as a result of negligence, bad faith or willful misconduct.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of liquidation affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding, except, as aforesaid, to vote for the election of a liquidator or similar person.
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All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee and its respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 4.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied, subject to Articles 3, 12, 13 and 14 hereof, in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: Except as otherwise expressly provided herein, to the payment of costs, fees and expenses (including indemnity payments) applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee, the Registrar, any Paying Agent and their respective agents and attorneys and of all liabilities and reasonable expenses incurred, and all advances made, by the Trustee, and any Paying Agent;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series with respect to which one or more breaches have occurred in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the installments of interest as to which such breaches have occurred at the same rate as the rate of interest provided for in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the principal as to which a breach has occurred, and (to the extent that such interest has been collected by the Trustee) upon installments of interest as to which breaches have occurred at the same rate as the rate of interest provided for in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto.
Section 4.04. Suits for Enforcement. In case a breach has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture
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or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. However, the Company shall not, as a result of the bringing of such judicial proceedings, be required to pay any amount representing or measured by reference to principal or interest on the Securities prior to any date on which the principal of, or any interest on, the Securities would have otherwise been payable pursuant to the terms of the Securities.
Unless otherwise established in accordance with Section 2.03 or by any applicable supplemental indenture, a “breach” with respect to Securities of any series wherever used herein, means each one of the following events which shall have occurred and be continuing: (a) the Company’s failure to pay the principal, if, when and to the extent due, or, to pay the interest when due unless the Company determined to cancel such interest payment in respect of any series of the Securities, and the continuance of any such failure for a period of 30 days after the date when due, unless the Company shall have cured such failure by payment within such period, (b) the Company’s failure to duly perform or observe any other term, covenant or agreement in this Indenture in respect of the Securities of such series for a period of 90 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given first to the Company (and to the Trustee in the case of notice by the Holders referred to below) by the Trustee or Holders of at least 25% in Current Principal Amount of the Outstanding Securities of such series (such notification must specify the breach, demand that it be remedied and state that the notification is a “Notice of Breach” hereunder), or (c) any other breach provided in the supplemental indenture or in or pursuant to a Board Resolution (and set forth in an Officer’s Certificate) under which such series of Securities is issued or in the form of Security for such series.
Section 4.05. Restoration of Rights on Abandonment of Proceeding. In case the Trustee or any Holder of a Security shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or such Securityholder, then and in every such case the Company and the Trustee or such Securityholder shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
Section 4.06. Limitations on Suits by Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of a breach and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in Current Principal Amount of the Securities of the affected series then Outstanding (each such series treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity and/or security to its satisfaction as it may require against the costs, expenses and liabilities to be incurred therein or thereby, the Trustee for 60 days after its receipt of such notice, request and offer of indemnity and/or security satisfactory to it, shall have failed to institute any such action or proceeding, and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. The rights of Holders specified above are subject to the limitations and suspension of rights resulting from cancellation of interest payment, subordination, or any event triggering any Going Concern Write-Down or Write-Down and Cancellation. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
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Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security (subject to Section 3.01 hereof), if any, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment, if any, on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Notwithstanding the foregoing, by purchasing or acquiring the Securities, the Holders or beneficial owners of Securities agree to the limitations, suspension and waiver of rights resulting from cancellation of interest payment, subordination, or any event triggering any Going Concern Write-Down or Write-Down and Cancellation. For the avoidance of doubt, nothing in this Section 4.07 shall be construed to impair the effectiveness of the Going Concern Write-Down, Write-Down and Cancellation, interest payment cancellation or subordination provisions set forth in this Indenture, the Securities or any applicable supplemental indenture hereto.
Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach. Except as provided in Section 4.06 and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.09, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any breach occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such breach or an acquiescence therein; and, subject to Section 4.06 and the last paragraph of Section 2.09, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in Current Principal Amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall be in writing and accompanied by indemnity and/or security satisfactory to the Trustee and shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee has not received indemnity and/or security satisfactory to it, or if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 4.10. Waiver of Breaches. The Holders of a majority in Current Principal Amount of the Securities of all series at the time Outstanding with respect to which a breach shall have occurred and be continuing (voting as a single class) may on behalf of the Holders of all such Securities waive any past breach and its consequences, except a breach in respect of a covenant or provision hereof which cannot be modified or amended without the
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consent of the Holder of each Security affected. In the case of any such waiver, the Company, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other breach or impair any right consequent thereon.
Upon any such waiver, such breach shall cease to exist and be deemed to have been cured and not to have occurred for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other breach or impair any right consequent thereon.
Section 4.11. Trustee to Give Notice of Breach. The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the Register, notice by mail (or by other means provided in a supplemental indenture hereto or the Board Resolution under which such series of Securities is issued or in the form of Security for such series) of all breaches known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such breaches shall have been cured before the giving of such notice; provided that, except in the case of a nonpayment, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder or beneficial owner of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in Current Principal Amount of the Securities of such series.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of a breach with respect to the Securities of a particular series and after the curing or waiving of all breaches which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case a breach with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of a breach with respect to the Securities of any series and after the curing or waiving of all such breaches which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee with respect to the Securities of such series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for its negligence or willful misconduct in the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, and act as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements,
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certificates or opinions furnished to the Trustee and conforming with the requirements of this Indenture; provided that, in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of the mathematical calculations therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall have no duty to inquire and no duty to monitor as to the performance of the Company’s covenants in this Indenture; and
(d) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 4.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity and/or security satisfactory to it against such liability is not reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to Section 315 and Section 316 of the Trust Indenture Act.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act, and subject to Section 5.01:
(a) in the absence of negligence, bad faith or willful misconduct on its part, the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by a Responsible Officer of the Company;
(c) the Trustee may consult with counsel, financial advisors and other experts and any written advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless the requisite number of Securityholders shall have instructed the Trustee in writing in accordance with this Indenture and offered to the Trustee security and/or indemnity satisfactory to it in its sole discretion against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
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(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in Current Principal Amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity and/or security satisfactory to it against such reasonable costs, expenses or liabilities as a condition to proceeding; and the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, delegates or attorneys not regularly in its employ, and the Trustee shall not be responsible for any loss, liability, cost, claim, action, demand or expense incurred by reason of omissions, misconduct or negligence on the part of any such agent, delegate or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of a breach unless written notice of any event which is in fact such breach is received by a Responsible Officer of the Trustee at the Specified Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; delivery to the Trustee of Company financial reports shall not be deemed to constitute actual knowledge or constructive knowledge by the Trustee of its contents or notice of a breach
(i) the rights (including rights to compensation and resignation), privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated and indemnified, are extended to, and shall be enforceable by, The Bank of New York Mellon in each of its other capacities hereunder (including, as of the date of this Indenture, the Paying Agent and the Registrar), and each agent, custodian and other Person employed to act hereunder;
(j) the Trustee may request (and shall be entitled to receive) that the Company deliver an Officer’s Certificate setting forth the names of the respective individuals and titles of officers authorized at such time to take specified actions pursuant to this Indenture with their specimen signatures, which Officer’s Certificate may be signed by any other person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(k) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(l) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) whether or not foreseeable irrespective of whether the Trustee was advised of the likelihood of such loss or damage and regardless of the form of action. The provisions of this Section 5.02(l) shall survive the termination or discharge of this Indenture and the resignation or removal of the Trustee;
(m) the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; pandemics; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; acts of terrorism; failure of any money transmission, currency exchange or SWIFT system; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances;
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(n) the Trustee shall not be under any duty to determine, calculate or verify any amount payable to Holders under this Indenture (including any write-down or write-up amounts) and with regards to the Securities, and the Trustee will not be responsible to the Holders or any other person for any loss or liability arising from any failure by it to do so;
(o) if a breach shall have occurred, or if the Trustee finds it expedient or necessary, or is requested by the Company to undertake duties which are of an exceptional nature or otherwise outside the scope of the Trustee’s normal duties under this Indenture, the Company will pay such additional remuneration as the Company and the Trustee may agree upon the Company’s prior written consent; and
(p) no provision herein shall require the Trustee to do anything which may be illegal or contrary to applicable law or regulation.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds thereof, nor for the action or inaction of any Clearing Organization.
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section 9.03 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Company or the Trustee shall be under any liability for interest on any moneys received by it hereunder, nor have any responsibility to invest such moneys, except as otherwise agreed in writing by the Trustee with the Company.
Section 5.06. Compensation and Indemnification of Trustee and its Prior Claim. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such reasonable compensation as the Company and the Trustee shall from time to time agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all properly incurred expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including, subject to Section 5.02(g) hereof, the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable judgment or order. The Company also covenants to indemnify the Trustee which for purpose of this Section shall be deemed to include the Trustee’s directors, officers, employees and agents, and each predecessor trustee (and their respective officers, employees, directors and agents) for, and to hold it harmless against, any loss, liability or expense (including taxes other than taxes based upon the net income of the Trustee) arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of such party’s duties hereunder, including the properly incurred costs and expenses (including the properly incurred fees, charges and expenses of its agents and counsel) incurred of defending itself against or investigating any claim of liability arising out of or in connection with the same, except to the extent such loss, liability or expense may be attributable to the negligence, bad faith or willful misconduct of the Trustee, predecessor trustee,
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or their respective agents, officers, directors or employees, in each case as determined in a final non-appealable judgment or order by a court of competent jurisdiction. The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with a Liquidation Event, the expenses (including the properly incurred fees and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.
The provisions of Section 5.06 and Section 5.02(i) shall survive the termination or discharge of this Indenture, the redemption or cancellation of the Securities, and the resignation or removal of the Trustee.
The Trustee’s remuneration and that of its agents and counsel is exclusive of value-added tax or any similar tax, which if applicable is also payable by the Company to the Trustee. All remuneration payable to the Trustee shall accrue interest from the date when payment was due. All amounts payable to the Trustee shall be made without set-off, counterclaim, deduction or withholding unless required by law (other than taxes based upon, measured by or determined by the income of the Trustee), in which case the Company shall gross up such payments to the Trustee.
Section 5.07. Right of Trustee to Rely on Officer’s Certificate, etc. Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate and/or an Opinion of Counsel delivered to the Trustee, and such certificate, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture to the extent of the Trustee’s reliance thereupon.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee or any trustee hereafter appointed shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in Section 5.09.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving 60 days written notice of resignation to the Company and by mailing notice thereof by first-class mail to Holders of the applicable series of Securities at their last addresses as they shall appear on the Register or otherwise providing notice to Holders in the manner applicable to the Securities of
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each series. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation or removal (as the case may be), the resigning trustee may, on behalf of and at the expense of the Company, with prior notice to the Company, appoint its successor or the resigning Trustee, or the Company may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Company or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in Current Principal Amount of the Securities of each series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Company the evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 5.09 shall execute and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its
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predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Company or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.03, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as (i) shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (ii) shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures; and upon the execution and delivery of such supplemental indenture the resignation or removal of the predecessor trustee shall become effective to the extent provided therein and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Company or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.03, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations.
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee for the Securities of any series is eligible pursuant to Section 5.08 hereof.
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Company shall mail notice thereof by first-class mail to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Register or shall otherwise provide notice thereof to Holders in the manner applicable to the Securities of each series. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09. If the Company fails to mail or provide such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed or provided at the expense of the Company.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture and any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee
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may adopt the certificate of authentication of any predecessor trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 5.12. Conflicting Interests. The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
Section 5.13. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Register of the Company.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an
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Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time such reasonable compensation for its services under this Section as may be agreed between the Company and such Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
Certificate of Authentication:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
Date:
| The Bank of New York Mellon as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Section 5.14. Reports by the Trustee. Any Trustee’s report required under Section 313(a) of the Trust Indenture Act shall be transmitted on or before April 1 in each year following the date hereof, so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with any securities exchange in the United States on which any Securities are listed, with the Commission and with the Company.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Register or by a certificate of the Registrar thereof. The Company may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than ten days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
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Section 6.03. Holders to be Treated as Owners. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Company Deemed Not Outstanding. In determining whether the Holders of the requisite Current Principal Amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities in respect of which a Responsible Officer of the Trustee has received written notice to the effect that such Securities are so owned shall be so disregarded. Securities held by any depositary or other custodial arrangement established by or on behalf of the Company shall be regarded as Outstanding if the beneficial interest therein is not owned by the Company or any other obligor on such Securities or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on such Securities. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any reasonable decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
Section 6.05. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in Current Principal Amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in Current Principal Amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities affected by such action.
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ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures without Consent of Securityholders. The Company, when authorized by a Board Resolution, and the Trustee may, from time to time, and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another legal entity to the Company, or successive successions, and the assumption by a successor legal entity of the covenants, agreements and obligations of the Company pursuant to Article 8;
(b) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company shall consider to be for the protection of the Holders of Securities; provided that, in respect of any such additional covenant, restriction, condition or provision, no such supplemental indenture may provide for any right of acceleration due to any breach;
(c) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect;
(d) to add to, change or eliminate any of the provisions (other than as noted in Section 7.02) of this Indenture, provided, however, that any such addition, change or elimination shall not adversely affect the interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as permitted by Section 2.01 and Section 2.03;
(f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.10;
(g) to remove, amend or modify the going concern, viability or bankruptcy write-down provisions or the cancellation of interest payment provisions with respect to any Outstanding Securities, provided that such removal, amendment or modification does not adversely affect the interests of the Holders of the relevant series of Securities in any material respect or the treatment of the relevant series of Securities as the Company’s Additional Tier 1 Capital; or
(h) to effect any changes to the Indenture in a manner necessary to comply with the procedures of the DTC or any applicable clearing system.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 7.02.
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Section 7.02. Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority in Current Principal Amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (with each such series voting as one class), the Company, when authorized by a Board Resolution, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided that no such supplemental indenture shall, except as otherwise required or permitted pursuant to the Going Concern Write-Down, Write-Down and Cancellation, interest payment cancellation, or subordination provisions applicable to such series of Securities, (i) reduce the principal amount thereof, (ii) reduce the rate or extend the time of payment of interest thereon, (iii) reduce any amount payable on redemption thereof, (iv) make the principal thereof or interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, (v) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or in accordance with the terms of such Securities, (vi) change the Company’s obligations to pay Additional Amounts established pursuant to Section 2.03(n) or Section 3.05 (if any), (vii) impair or affect the right of any Securityholder to institute suit for enforcement of the payment on any Security when due or, if the Securities provide therefor, impair or affect any right of repayment at the option of the Securityholder, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities for securities of the Company or of other entities or other property (or the cash value thereof), including the determination of the amount of securities or other property (or cash) into which the Securities shall be converted or exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the Securities or otherwise in accordance with the terms of such Securities, (ix) modify or amend any provisions relating to the agreement to subordinate and the terms of subordination of Securities of any particular series pursuant to Section 12.01 and Section 12.02, or (x) reduce the aforesaid percentage of Securities of any particular series, the consent of the Holders of such series being required for any such supplemental indenture, in each case without the consent of the Holders of each Security so affected.
Notwithstanding anything else contained in this Indenture, no amendment or modification which is prejudicial to any present or future creditor in respect of any Senior Indebtedness shall be made to the provisions providing for the subordination of any Securities in the relevant supplemental indenture. No such amendment or modification shall in any event be effected against any such creditor.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series.
Upon the request of the Company, accompanied by a copy of the Board Resolution certified by a Responsible Office of the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. The Trustee, at the expense of the Company, shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel with regard to any such supplemental indenture. The Trustee shall be entitled to conclusively rely upon such Officer’s Certificate and Opinion of Counsel in entering into such supplemental indenture. The Opinion of Counsel shall comply with Section 10.05 and confirm (inter alia) that the supplemental indenture is authorized or permitted under this Indenture, and that it is legal, valid, binding and enforceable against the Company under New York law.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
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Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall give notice thereof by (a) first-class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the Register of the Company or (b) by any other means set forth in such supplemental indenture, setting forth in general terms the substance of such supplemental indenture. The Trustee shall assist the Company with the distribution of the notices to the Holders. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 7.04. Documents to be Given to Trustee. The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall be entitled to receive, in addition to the documents required by Section 10.05, an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 7 complies with the applicable provisions of this Indenture.
Section 7.05. Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Board, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
Section 7.06. Conformity with the Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 7 shall conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Company May Consolidate, etc., on Certain Terms. The Company covenants that it will not merge or consolidate with or merge into, or sell, assign, transfer, lease or convey all or substantially all of its properties or assets, in one or more related transactions, to another Person, other than consolidation, merger, sale, assignment, transfer, lease or conveyance which results in the Company being the surviving party, unless:
(a) the entity formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company substantially as an entirety shall be a joint stock company (kabushiki kaisha) organized and existing under the laws of Japan and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee for each series of Securities, in form satisfactory to the Trustee, the due and punctual payment, if and to the extent required, of the principal of and interest, if any, on all Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; and
(b) immediately after giving effect to such transaction, no Bankruptcy Event shall have occurred and be continuing.
The Company shall deliver to the Trustee before the consummation of such proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel to the effect that (i) such merger, sale,
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assignment, transfer, lease, conveyance or other disposition and such supplemental indenture, comply with this Indenture, (ii) the surviving Person has duly executed and delivered the supplemental indenture and (iii) such supplemental indenture constitutes a valid and binding agreement of such Person, enforceable against such Person in accordance with its terms. The Trustee shall be entitled to rely conclusively upon such Officer’s Certificate and Opinion of Counsel.
Section 8.02. Successor Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the successor legal entity, such successor legal entity shall succeed to and be substituted for the Company, with the same effect as if it had been named herein. Such successor legal entity may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor legal entity instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor legal entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way of lease) the Company or any successor legal entity which shall theretofore have become such in the manner described in this Article shall be discharged from all obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.
Section 8.03. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of Section 5.01 and Section 5.02, shall be entitled to receive an Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any such liquidation or dissolution, complies with the applicable provisions of this Indenture.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture. When (i) the Company has paid or caused to be paid, if and to the extent required, the principal of and interest on all the Securities of any series Outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and payable, or (ii) the Company shall have delivered to the Paying Agent for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09), or (iii) all Securities of a series Outstanding under this Indenture shall have been cancelled in connection with a Write-Down and Cancellation pursuant to Article 13, then this Indenture shall cease to be of further effect with respect to Securities of such series, and the Trustee, on prior written demand of the Company accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided that the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter properly incurred
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and to compensate the Trustee for any services thereafter properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 9.03 and any subordination provisions applicable to the Securities, all moneys deposited with the Trustee shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee of all sums due and to become due thereon pursuant to such Securities and this Indenture for principal and interest pursuant to such Securities and this Indenture; but such money need not be segregated from other funds except to the extent required by law.
Section 9.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
Section 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the prior written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee for such series or such Paying Agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such moneys shall thereupon cease.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, member, officer, director or employee, as such, of the Company, or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the issue of the Securities.
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any Person other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 10.03. Successors and Assigns of Company Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
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Section 10.04. Notices and Demands on Company, Trustee, and Securityholders. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or the Holders of Securities to or on the Company shall be in the English language and shall be given or served by being deposited postage prepaid, first-class or similar class mail (except as otherwise specifically provided herein) or by facsimile addressed (until another address of the Company is filed by the Company with the Trustee) at the following address:
Company:
Mizuho Financial Group, Inc.
1-5-5, Otemachi, Chiyoda-ku
Tokyo 100-8176
Japan
Attention: Deputy General Manager of Financial Planning Department
Fax: +81-3-5224-1057
Any notice, direction, request or demand by the Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing in the English language to its Corporate Trust Office at:
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
U.S.A.
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +1-212-815-5915
with a copy to its Specified Corporate Trust Office:
The Bank of New York Mellon, Singapore Branch
One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +65 6883 0338
Email: ctsgclientservice@bnymellon.com
Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Company and Holders of Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Any notice or demand will be deemed to have been sufficiently given or served when so sent or deposited and, if to the Holders, when delivered in accordance with the applicable rules and procedures of the Clearing
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Organization. Notwithstanding anything to the contrary herein, any such notice, which are purported to be made to the beneficial owner of the Securities through the Clearing Organization, may be delivered to the Clearing Organization in a manner the Company deems appropriate, and shall be deemed to have been delivered on the day such notice is delivered to the Clearing Organization, or if by mail, when so sent or deposited.
Section 10.05. Officer’s Certificates and Opinions of Counsel; Statements to be Contained Therein. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need to be furnished.
All such Officer’s Certificates and Opinions of Counsel shall be in English or accompanied by a certified translation.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer of officers of the Company, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, as the case may be, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Section 10.06. Conflict of any Provision of Indenture with Trust Indenture Act. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an “Incorporated Provision”), such Incorporated Provision shall control.
Section 10.07. New York Law to Govern. This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State.
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Section 10.08. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 10.09. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.10. Submission to Jurisdiction. To the fullest extent permitted by applicable law, the Company irrevocably submits to the non-exclusive jurisdiction of any Federal or State court in the Borough of Manhattan in The City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising under this Indenture and the Securities, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Company, to the fullest extent permitted by applicable law, irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such suit or proceeding and hereby irrevocably designates and appoints Mizuho Bank, Ltd., with offices currently at 1251 Avenue of the Americas, New York, NY 10020, U.S.A., Attention: General Managers, Americas Legal and Compliance Department (the “Authorized Agent”), as its authorized agent upon whom process may be served in any such suit or proceeding. The Company represents that it has notified the Authorized Agent of such designation and appointment and that the Authorized Agent has accepted the same. The Company hereby irrevocably authorizes and directs its Authorized Agent to accept such service. The Company further agrees that service of process upon its Authorized Agent and written notice of said service to it mailed by first-class mail or delivered to the Company shall be deemed in every respect effective service of process upon it in any such suit or proceeding. Nothing herein shall affect the right of any person to serve process in any other manner permitted by law. The Company agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner.
The Company hereby irrevocably waives, to the extent permitted by law, any immunity to jurisdiction to which it may otherwise be entitled (including, without limitation, 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 Indenture, the Securities or the transactions contemplated hereby.
The provisions of this Section 10.10 are intended to be effective upon the execution of this Indenture without any further action by the Company or the Trustee and the introduction of a true copy of this Indenture into evidence shall be conclusive and final evidence as to such matters.
Section 10.11. Non-Business Day. In any case where the date of payment of interest or redemption of a Security established in accordance with Section 2.03 shall not be a Business Day at any Place of Payment with respect to Securities of that series, then (unless otherwise specified in the Securities) payment of principal of and interest, if any, with respect to such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the date of payment of interest or redemption of a Security established in accordance with Section 2.03, provided that no interest shall accrue for the period from and after such date of payment of interest or redemption of a Security, as the case may be.
Section 10.12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.13. Patriot Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA Patriot Act (as amended, modified or supplemented from time to time).
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ARTICLE 11
REDEMPTION AND REPURCHASE OF SECURITIES
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable except as otherwise specified as contemplated by Section 2.03 for Securities of such series. Notwithstanding anything to the contrary contained herein or in the terms of the Securities of any series, any redemption of the Securities of any series shall be subject to the Going Concern Write-Down provisions, Write-Down and Cancellation provisions, the Write-Up provisions, the interest payment cancellation provisions, and the subordination provisions, each as provided herein or in the terms of the Securities of such series.
Section 11.02. Optional Redemption. Optional redemption under this Section shall, at all times, be subject to the prior confirmation of the FSA (if and to the extent required under the Applicable Banking Regulations).
(a) Optional Redemption: Unless otherwise established in accordance with Section 2.03, the Securities of any series may be redeemed at the option of the Company, in whole, but not in part, on such date or dates as specified in the terms of the Securities of such series and upon notice thereof given by the Company in accordance with Section 11.03, at a redemption price equal to 100% of the Original Principal Amount of the relevant series of Securities (together with any accrued and unpaid interest to (but excluding) the date fixed for redemption and Additional Amounts, if any); provided, however, that the Company shall not have such option to redeem the relevant series of Securities, as provided in this Section 11.02(a), if the Current Principal Amount of the relevant series of Securities has been subject to one or more Going Concern Write-Downs and such written down amount has not been reinstated in full on the date fixed for redemption.
(b) Optional Redemption Due to Changes in Tax Treatment: Unless otherwise established in accordance with Section 2.03, the Securities of any series may be redeemed at the option of the Company, in whole, but not in part, at any time upon notice thereof given by the Company in accordance with Section 11.03, at a redemption price equal to 100% of the Current Principal Amount of the relevant series of the Securities on the date fixed for redemption (together with accrued and unpaid interest to (but excluding) the date fixed for redemption and Additional Amounts, if any), if, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of Japan (or any political subdivision or taxing authority in or of Japan) affecting taxation, or any change in the official position regarding the application or interpretation of such laws, regulations or rulings (including a holding, judgment, or order by a court of competent jurisdiction), which change, amendment, application or interpretation becomes effective on or after the date of the final offering document for the relevant series of Securities:
(i) the Company is, or on the next interest payment date would be, required to pay any Additional Amounts; or
(ii) payment by the Company of interest on the relevant series of Securities ceases to be treated as being a deductible expense for the purpose of computing the Company’s corporate tax liability by the Japanese tax authorities;
and, in each of (i) and (ii) above, where the same cannot be avoided by measures reasonably available to the Company, provided that, no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the relevant event would be triggered. Prior to the mailing to holders of Securities of any notice of redemption of the Securities pursuant to this Section 11.02(b) and Section 11.03, the Company will provide an Officer’s Certificate to the Trustee certifying that the applicable requirements have been met and deliver therewith to the Trustee an opinion of an independent tax counsel or tax consultant of recognized standing, such opinion to be reasonably satisfactory to the Trustee, to the effect that such circumstances exist. The Trustee shall be entitled to accept such certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders.
Additional Amounts are payable by the Company under the circumstances described in Section 3.05.
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(c) Optional Redemption Due to Changes in Regulatory Treatment: Unless otherwise established in accordance with Section 2.03, the Securities of any series may be redeemed at the option of the Company, in whole, but not in part, at any time upon notice thereof given by the Company in accordance with Section 11.03, at a redemption price equal to 100% of the Current Principal Amount of the relevant series of the Securities on the date fixed for redemption (together with accrued and unpaid interest to (but excluding) the date fixed for redemption and any Additional Amounts, if any), if the Company determines after consultation with the FSA and any other relevant Japanese governmental organizations that there is more than an insubstantial risk that the relevant series of the Securities will be partially or fully excluded from the Company’s Additional Tier I Capital under applicable standards set forth in the Applicable Banking Regulations; provided that, no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the relevant event would be triggered. Prior to the mailing to holders of Securities of any notice of redemption of the Securities pursuant to this Section 11.02(c) and Section 11.03, the Company will deliver to the Trustee an Officer’s Certificate to the effect that such circumstances exist that has been executed by any one Responsible Officer of the Company authorized by the Board or a Representative Executive Officer of the Company to execute such certificate. The Trustee shall be entitled to accept such certificate as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders.
Section 11.03. Notice of Redemption. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first-class mail, postage prepaid, not less than 25 days nor more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the Register and the Trustee. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal amount and the CUSIP or ISIN number (if any) of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid subject to the interest payment cancellation provisions herein or in the terms of such Securities as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of the Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
If a Capital Ratio Event, a Viability Event, a Bankruptcy Event or a Liquidation Event occurs prior to the applicable date fixed for redemption, the notice of redemption will be automatically rescinded and will have no force and effect, and no redemption amount will be due and payable, in which case the Securities will be subject to a Going Concern Write-Down or a Write-Down and Cancellation as provided in Article 13 or Article 14 or the subordination provisions as provided in Article 12, as the case may be. If prior confirmation of the FSA as set forth in Section 11.02 is not obtained or is withdrawn or annulled for any reason prior to the applicable date fixed for redemption, then notice of redemption will be automatically rescinded and will have no force and effect, and no redemption amount will be due and payable. If a notice of redemption is rescinded for any of the reasons described in the previous two sentences, the Company will endeavor to promptly deliver written notice to the Holders of the Securities and the Trustee in accordance with the terms of this Indenture or the relevant series of Securities, specifying the occurrence of the relevant event.
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On or before the redemption date specified in the notice of redemption given as provided in this Section (and in any event no later than 10:00 a.m., New York time, on the due date for payment), the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption and any Additional Amounts, subject to the interest payment cancellation provisions herein or in the terms of such Securities. If less than all the Outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officer’s Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all of the Securities of a series are to be redeemed, the Securities for redemption will be selected as follows: (i) if the Securities are listed on any securities exchange, in compliance with the requirements of the principal securities exchange on which the Securities are then traded or if the Securities are held through the clearing systems, in compliance with the requirements of the applicable clearing systems; or (ii) if the Securities are not listed on any securities exchange, on a pro rata basis, by lot or by such other method as the Trustee deems fair and appropriate, unless otherwise required by law. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption subject to the interest payment cancellation provisions herein or in the terms of such Securities, and on and after said date (unless the Company shall fail in the payment of such Securities at the redemption price, together with interest accrued to said date subject to the interest payment cancellation provisions herein or in the terms of such Securities) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Section 5.05 and Section 9.03, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption subject to the interest payment cancellation provisions herein or in the terms of such Securities. On presentation and surrender of such Securities at a Place of Payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption subject to the interest payment cancellation provisions herein or in the terms of such Securities; provided that, any payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Section 2.07 and Section 3.01 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest borne by such Security, subject to the interest payment cancellation provisions herein or in the terms of such Securities; provided, however, that if a Capital Ratio Event, a Viability Event, a Bankruptcy Event or a Liquidation Event occurs subsequent to the date fixed for redemption and prior to payment of the applicable redemption price, no redemption amount, including accrued interest thereon, shall be due and payable.
Section 11.05. Purchase of Securities. The Company or any subsidiary of the Company may, at any time, subject to the prior confirmation of the FSA (if and to the extent required under the Applicable Banking Regulations), purchase any or all of the Securities in the open market or otherwise at any price in accordance with applicable law and regulation. Subject to applicable law, neither the Company nor any subsidiary of the Company shall have any obligation to purchase or offer to purchase any Securities held by any Holder as a result
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of its purchase or offer to purchase Securities held by any other Holder in the open market or otherwise. Any such Securities purchased by the Company or any subsidiary of the Company may, at the discretion of the Company or any relevant subsidiary, be held, resold or surrendered to the Registrar for cancellation by the Company or any such subsidiary, as the case may be. The Securities so purchased, while held by or on behalf of the Company or any such subsidiary, as the case may be, shall not entitle the holder to vote at any meetings of the holders of the relevant series of Securities and shall not be deemed to be Outstanding for the purposes of calculating quorums at meetings of the Holders or for the purposes of Article 4. The provisions of this Section are subject to modification in accordance with Section 2.03.
ARTICLE 12
SUBORDINATION
Section 12.01. Agreement to Subordinate. The Company covenants and agrees, and each Holder or beneficial owner of any Security issued hereunder by its acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article; and each person holding any Security, by its acquisition of such Security, whether upon original issue or upon transfer, assignment or exchange thereof accepts and agrees that the principal of and interest on all Securities issued hereunder shall, to the extent and in the manner set forth herein, subject to any modifications or additional terms set forth in any applicable supplemental indenture, be subordinated and subject in right to the prior payment in full of all Senior Indebtedness.
Section 12.02. Subordination. The Securities issued pursuant to this Indenture shall constitute direct and unsecured obligations of the Company which are conditional and subordinated to Senior Indebtedness, as provided under this Article. Claims in respect of each series of the Securities shall at all times rank equally and pari passu and without any preference among themselves and at least equally and ratably with all other present and future unsecured, undated, conditional and subordinated obligations of the Company (including obligations in respect of undated subordinated guarantees provided by the Company) and in priority to the rights and claims of holders of all classes of equity (including holders of preference shares (if any)) of the Company, subject to the Write-Down and Cancellation and Going Concern Write-Down provisions under Articles 13 and 14 herein.
Upon the occurrence and continuation of a Liquidation Event, the rights of the holders of any series of Securities will be subordinated in right of payment to all existing and future Senior Indebtedness, and any amounts (other than any amounts which shall have become due and payable before such Liquidation Event and remain unpaid) due under such series of Securities will become payable, only upon a Condition for Liquidation Payment being fulfilled. At any time prior to a Condition for Liquidation Payment being fulfilled, any claim of the holders of any series of Securities shall be subject to a Going Concern Write-Down or the Write-Down and Cancellation upon the occurrence of a Capital Ratio Event, Viability Event or Bankruptcy Event under Articles 13 and 14 herein, as the case may be.
“Condition for Liquidation Payment” means, upon the occurrence and continuation of a Liquidation Event, all Senior Indebtedness held by creditors of the Company entitled to payment or satisfaction prior to commencement of distribution of residual assets to shareholders of the Company is paid in full or otherwise satisfied in full in the liquidation proceeding (seisan) pursuant to the Japanese Companies Act.
Notwithstanding that the Securities are stated to rank equally and ratably with certain undated subordinated obligations and ahead of all classes of equity (including preference shares (if any)) of the Company as described above, the Securities are subject to the Write-Down and Cancellation and Going Concern Write-Down under Articles 13 and 14 herein.
Any Holder or beneficial owner of a Security by its acceptance of such Security, whether upon original issue or upon transfer, assignment or exchange thereof, shall thereby agree that (i) if any payment of principal of
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or interest on such series of Securities is made to such Holder or beneficial owner after the occurrence of a Liquidation Event and the amount of such payment shall exceed the amount, if any, that should have been paid to such Holder or beneficial owner upon the proper application of the subordination provisions of such series of Securities under this Article 12, the payment of such excess amount shall be deemed null and void and such Holder or beneficial owner shall be obliged to return the amount of such excess payment within ten days after receiving notice of the excess payment, and (ii) upon the occurrence of a Liquidation Event and for so long as such Liquidation Event shall continue, any liabilities of the Company to such Holder or beneficial owner which would otherwise become so payable on or after the date on which such Liquidation Event occurs shall not be set off against any liabilities of such Holder or beneficial owner owed to the Company unless, until and only in such amount as the liabilities of the Company under such series of Securities become payable pursuant to the proper application of the subordination provisions of such series of Securities under this Article 12.
Section 12.03. No Amendment. No amendment or modification to the provisions of Section 12.01 or Section 12.02 which is prejudicial to any present or future creditor in respect of any Senior Indebtedness of the Company shall be made in any respect. No such amendment or modification shall in any event be effective against any such creditor.
Except as provided in Section 7.02, the Company shall not amend or modify the subordination provisions of the Securities if such amendment or modification would adversely affect the rights of Holders to receive payments under the Securities.
Section 12.04. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended to be solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of the Securities, the obligation of the Company to pay to the Holders of the Securities the principal of and interest (and Additional Amounts, if any) on the Securities as and when the same shall become due and payable in accordance with their terms; (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon breach under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness.
Section 12.05. Trustee to Effectuate Subordination. Each Holder or beneficial owner of a Security by its acceptance thereof, whether upon original issue or upon transfer, assignment or exchange thereof, authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article and appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 12.06. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities pursuant to the subordination provisions under this Article 12. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof from the Company or a Holder of Senior Indebtedness or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 5.01, shall be entitled in all respects to assume that no such facts exist.
Section 12.07. No Restriction on the Company Assuming Further Obligations. Nothing contained in this Indenture shall in any way restrict the right of the Company to issue or guarantee obligations ranking in priority to or pari passu with the obligations of the Company in respect of the Securities.
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ARTICLE 13
WRITE-DOWN AND CANCELLATION
Section 13.01. Agreement to Write-Down and Cancellation. Each Holder and beneficial owner of a Security, by its acquisition of such Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that, to the extent and in the manner set forth herein:
(a) upon the occurrence of a Viability Event or a Bankruptcy Event and a Write-Down and Cancellation of the Securities, such Holders and beneficial owners shall be deemed to have irrevocably waived their right to claim or receive, and not to have any rights against the Company with respect to, payment of principal of or interest on the Securities (including Additional Amounts with respect thereto, if any) (except for any payments of principal, interest or Additional Amounts that have become due and payable prior to the occurrence of such Viability Event or Bankruptcy Event and remain unpaid) and shall be bound by the provisions of this Article 13;
(b) upon the occurrence of a Viability Event or Bankruptcy Event or a Liquidation Event after the issuance of a redemption notice, (1) such redemption notice shall be automatically rescinded, (2) no redemption amount becoming due and payable, (3) in case of the occurrence of a Viability Event or Bankruptcy Event, the Securities shall become subject to a Write-Down and Cancellation, and (4) in case of the occurrence of a Liquidation Event, the Securities shall become subject to the subordination provisions of Article 12;
(c) no such Write-Down and Cancellation or rescission of a redemption notice in accordance with the terms of this Indenture shall constitute a default or breach in payment or otherwise under the terms of the Securities; and
(d) such Holder and beneficial owner shall authorize, direct and request DTC and any direct participant in DTC or other intermediary through which it holds the Securities, the Trustee and the Agents to take any and all necessary action, if required, to implement a Write-Down and Cancellation of the Securities without any further action or direction on the part of such Holder and beneficial owner.
A “Viability Event” will be deemed to have occurred if the Japanese Prime Minister confirms (nintei) that the “specified item 2 measures (tokutei dai nigo sochi),” which are the measures set forth in Article 126-2, Paragraph 1, Item 2 of the Japanese Deposit Insurance Act need to be applied to the Company.
“Discharge and Cancellation Date” means, (i) in the case of a Viability Event, upon the occurrence of a Viability Event, the date to be determined by the Company after discussions with the FSA and any other relevant Japanese governmental organizations and notified to the holders of the Securities and the Trustee, such date to fall no more than ten Business Days from the date of the Write-Down and Cancellation Notice, or (ii) in the case of a Bankruptcy Event, the date on which the Bankruptcy Event occurs.
Section 13.02. Notice of Write-Down and Cancellation. As soon as practicable following the occurrence of a Viability Event or Bankruptcy Event, the Company shall give notice to DTC and the holders of the Securities via DTC (and send a copy to the Trustee for informational purposes), in the form attached as Exhibit C hereto (the “Write-Down and Cancellation Notice”) (a) stating that a Viability Event or Bankruptcy Event, as applicable, has occurred and a Write-Down and Cancellation will therefore take place or has therefore taken place, as applicable, on the Discharge and Cancellation Date, and (b) specifying the Discharge and Cancellation Date. Any failure or delay by the Company to provide a Write-Down and Cancellation Notice shall not change or delay the effect of the Viability Event or Bankruptcy Event on its payment obligations on the Securities.
Section 13.03. Write-Down and Cancellation. Notwithstanding anything to the contrary contained herein or in the terms of the Securities, upon the occurrence of a Viability Event or Bankruptcy Event, no principal of, interest on, or other amount under the Securities of any series shall thereafter become due, and other than with respect to principal, any Additional Amounts and interest that have become due and payable prior to the Viability Event or Bankruptcy Event and remain unpaid (as identified in (ii) below),
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(a) the Holders or beneficial owners shall have no rights whatsoever under this Indenture or the Securities to take any action or enforce any rights or instruct the Trustee to take any action or enforce any rights whatsoever,
(b) except for any indemnity and/or security provided by any Holder or beneficial owner in such direction or related to such direction, any direction previously given to the Trustee by any Holders or beneficial owners shall cease automatically and shall be null and void and of no further effect,
(c) no Holder or beneficial owner may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company arising under, or in connection with, the Securities and each Holder or beneficial owner of Securities shall, by virtue of its holding of any Securities, be deemed to have waived all such rights of set-off, compensation or retention, and
(d) no Holder or beneficial owner will be entitled to make any claim in any bankruptcy, insolvency or liquidation proceedings involving the Company or have any ability to initiate or participate in any such proceedings or do so through a representative.
(x) In the case of a Viability Event, on the Discharge and Cancellation Date, or (y) in the case of a Bankruptcy Event, immediately upon the occurrence of the Bankruptcy Event:
(i) the full principal amount of the Securities of any series will be permanently written down to zero, the Company shall be discharged and released from any and all of its obligations to pay principal of, interest on and any other amount under the Securities of any series (including Additional Amounts with respect thereto, if any), and the Securities of any series will be cancelled and all references to the principal amount of, interest on or any other amount under the Securities of any series will be construed accordingly, other than principal, interest, or any Additional Amounts that have become due and payable prior to the Viability Event or Bankruptcy Event, as the case may be, and remain unpaid;
(ii) the Company’s obligations shall remain with respect to (A) any accrued and unpaid interest on or principal of the Securities of any series and (B) any Additional Amounts, in the case of each of subclauses (A) and (B) of this paragraph (ii), if and only to the extent that such interest, principal or Additional Amounts, as applicable, has become due and payable to the Holders prior to the relevant Viability Event or Bankruptcy Event, as the case may be, and remain unpaid; and
(iii) the Holders and beneficial owners of the Securities of any series will be deemed to irrevocably waive their right to claim or receive, and no longer have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, repayment of the principal of, interest on or any other amount under the Securities of any series (including Additional Amounts with respect thereto, if any) written down, discharged or released pursuant to paragraph (i) above, and except as described in paragraph (ii) above, all rights of any Holder or beneficial owner for payment of any amounts under or in respect of the Securities of any series will become null and void, and any Holder or beneficial owner who has received such payment shall be obliged to return the amount so received immediately to the Company.
The events described in (i) through (iii) above are referred to as a “Write-Down and Cancellation.”
Section 13.04. Additional Provisions Relating to a Write-Down and Cancellation.
(a) Write-down Procedure for Securities while held through DTC.
A Write-Down and Cancellation Notice delivered to DTC by the Company shall (i) request that, as soon as practicable following its receipt of the Write-Down and Cancellation Notice, DTC post the Write-Down and Cancellation Notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities), (ii) request that DTC transmit the Write-Down and Cancellation Notice to the direct participants of DTC holding positions in the Securities of any series at such time pursuant to
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DTC’s rules and procedures, and (iii) request that DTC mark-down all positions relating to the Securities of any series on DTC’s records on the Discharge and Cancellation Date, or as of the date and at the time (if practicable) of the occurrence of the Bankruptcy Event, as applicable, to reflect the Write-Down and Cancellation. To the extent that there has been a variation to DTC’s rules and procedures, the instructions of the Company shall vary to accord to the then applicable rules and regulations of DTC.
The Company shall also promptly send a copy of the Write-Down and Cancellation Notice to the Trustee for informational purposes only.
By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder and beneficial owner shall be deemed to have authorized, directed and requested DTC and any direct participant in DTC or other intermediary through which it holds such Securities, the Trustee and the Agents to take any and all necessary action, if required, to effectuate the Write-Down and Cancellation and the mark-down all positions relating to the Securities on DTC’s records to reflect the Write-Down and Cancellation.
The Company and each Holder or beneficial owner of a Security acknowledge and agree that, following the receipt of a Write-Down and Cancellation Notice by DTC and the commencement of the Suspension Period, DTC will suspend all clearance and settlement of the Securities through DTC for the duration of the Suspension Period.
The Registrar will reflect a Write-Down and Cancellation on the Register pursuant to the provisions of Section 2.08 on the Discharge and Cancellation Date, or as of the date and at the time (if practicable) of the occurrence of the Bankruptcy Event, as applicable, following receipt by the Trustee of the Write-Down and Cancellation Notice from the Company for informational purposes and after DTC’s records have reflected the Write-Down and Cancellation.
(b) Write-down Procedure for Securities held in the form of certificated securities.
To the extent that the Securities are held in the form of certificated securities, the Company shall request a copy of the Register and deliver the Write-Down and Cancellation Notice (as amended to reflect that the Securities are no longer in global form or held through DTC) to the Holders and a copy thereof to the Trustee for informational purposes.
On the Business Day on which such Write-Down and Cancellation Notice is delivered to the Trustee, the Trustee shall inform the Registrar of the receipt of the Write-Down and Cancellation Notice and the Registrar shall with effect from the open of business on the next following Business Day cease to register any attempted transfer of any Securities.
By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder shall be deemed to have authorized, directed and requested the Trustee and the Agents and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to effectuate the Write-Down and Cancellation as of the Discharge and Cancellation Date.
The Registrar will reflect a Write-Down and Cancellation on the Register on the Discharge and Cancellation Date, or as of the date and at the time (if practicable) of the occurrence of the Bankruptcy Event, as applicable, following receipt of the Write-Down and Cancellation Notice by the Trustee pursuant to the provisions of Section 2.08.
All authority conferred or agreed to be conferred by each Holder pursuant to this Section 13.04, including the consents given by such Holder, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder.
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(c) Upon occurrence of a Viability Event or Bankruptcy Event and delivery of the related Write-Down and Cancellation Notice by the Company to the Trustee, any and all moneys deposited with the Trustee (and held by it or any Paying Agent) for the payment of any amounts under the Securities that has not become due and payable prior to the date of such Viability Event or Bankruptcy Event shall be returned promptly to the Company. For the avoidance of doubt, a Viability Event or Bankruptcy Event and the occurrence of a Write-Down and Cancellation shall not constitute a default or breach under this Indenture.
(d) By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder, to the extent permitted by applicable laws and regulations:
(i) waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes or abstains from taking, in either case solely in accordance and in connection with the Write-Down and Cancellation;
(ii) agrees to be bound by and consents to the Write-Down and Cancellation that will result in the cancellation of all of the principal amount of, or interest on the Securities (other than payments of principal, any Additional Amounts and interest that have become due and payable prior to the Viability Event or Bankruptcy Event and remain unpaid); and
(iii) agrees that upon the occurrence of a Viability Event or Bankruptcy Event, (x) the Viability Event or Bankruptcy Event does not constitute an event of default or breach, (y) the Trustee shall not be required to take any further directions from the holders of the Securities under Sections 4.09 and 5.02 of this Indenture, which sections authorize the Holders to direct certain actions relating to the Securities, and (z) this Indenture shall impose no duties upon the Trustee whatsoever solely with respect to the Write-Down and Cancellation.
(e) The Trustee has no responsibility for nor liability with respect to actions taken or not taken by the DTC or any other clearing system or its participants or members or any broker-dealers with respect to the notification or implementation of the Write-Down and Cancellation, nor any application of funds or delivery of notices prior to a Write-Down and Cancellation, or with respect to the return of any amount that was paid to any Holder following a Viability Event or Bankruptcy Event in excess of the amount that should have been paid to such Holder based on the proper application of this Article 13.
(f) Notwithstanding any delay in, or unavailability of procedures of, DTC, any other clearing system or the Registrar reflecting the Write-Down and Cancellation on its systems, the Write-Down and Cancellation shall take place on the relevant Discharge and Cancellation Date or upon the occurrence of the Bankruptcy Event, as applicable.
(g) All authority conferred or agreed to be conferred by each Holder pursuant to this Article 13, including the consents given by such Holder, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder.
(h) None of the Trustee, the Paying Agent and the Registrar shall be under any duty to determine, monitor or report whether a Viability Event or Bankruptcy Event has occurred or circumstances exist which may lead to the occurrence of a Viability Event or Bankruptcy Event and will not be responsible or liable to the Holders or any other person for any loss arising from any failure by it to do so. Unless and until the Trustee receives a Write-Down and Cancellation Notice in accordance with Section 13.02, the Trustee shall be entitled to assume that no Viability Event or Bankruptcy Event or other such event or circumstance has occurred or exists. The Trustee shall be entitled, without further enquiry and without liability to any Holder or any other person, to rely on any Write-Down and Cancellation Notice and each such Write-Down and Cancellation Notice shall be conclusive evidence of the occurrence of the Viability Event or Bankruptcy Event, as the case may be. Each of the Trustee, the Paying Agent, the Registrar, DTC and any other relevant clearing system shall be entitled without further enquiry and without liability to any Holder or any other person to rely conclusively on any Write-Down and
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Cancellation Notice, and the same shall be conclusive and binding on Holders. So long as such Securities are held in global form, neither the Trustee, the Paying Agent, the Registrar nor any common depository nor any registered holder thereof shall, in any circumstances, be responsible or liable to the Holders or any other person for any act, omission or default by DTC or any other relevant clearing system, or its respective participants, members, any broker-dealer or any other relevant third party with respect to the notification and/or implementation of any Write-Down and Cancellation by any of them in respect of such Securities.
ARTICLE 14
GOING CONCERN WRITE-DOWN AND WRITE-UP
Section 14.01. Agreement to Going Concern Write-Down. Each Holder and beneficial owner of a Security, by its acquisition of such Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that, to the extent and in the manner set forth herein:
(a) upon the occurrence of a Capital Ratio Event and a Going Concern Write-Down, such Holders and beneficial owners shall be deemed to have irrevocably waived their right to claim or receive, and not to have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, any payment of the Current Principal Amount of the relevant series of Securities to the extent of the relevant Going Concern Write-Down Amount or interest thereon (including Additional Amounts with respect thereto, if any) and shall be bound by the provisions of this Article;
(b) upon the occurrence of a Capital Ratio Event after the issuance of a redemption notice, (1) such redemption notice shall be automatically rescinded, (2) no redemption amount shall become due and payable, and (3) the Securities shall become subject to a Going Concern Write-Down;
(c) no such Going Concern Write-Down, or rescission of a redemption notice in accordance with the terms of this Indenture shall constitute a default or breach in payment or otherwise under the terms of the Securities; and
(d) such Holder and beneficial owner shall authorize, direct and request DTC and any direct participant in DTC or other intermediary through which it holds the Securities, the Trustee and the Agents to take any and all necessary action, if required, to implement a Going Concern Write-Down of the Securities without any further action or direction on the part of such Holder and beneficial owner.
A “Capital Ratio Event” will be deemed to have occurred when the Company’s Consolidated Common Equity Tier 1 Capital Ratio, that the Company has reported or publicly announced, as applicable, in any of: (i) an annual financial condition report (kessan jokyo hyo) or a semi-annual financial condition report (chukan kessan jokyo hyo) submitted by the Company to the FSA or any other relevant Japanese governmental organizations (including such report under the Japanese Banking Act), (ii) an annual business report (gyomu hokokusho) or a semi-annual business report (chukan gyomu hokokusho) submitted by the Company to the FSA or any other relevant Japanese governmental organizations (including such report under the Japanese Banking Act), (iii) a public announcement made by the Company in accordance with applicable Japanese law (including such announcement under the Japanese Banking Act) or the rules of a relevant Japanese securities exchange, or (iv) a report made by the Company to the FSA or any other relevant Japanese governmental organizations after consultation with the outside auditor of the Company following the results of an inspection of the FSA or any other relevant Japanese governmental organizations (including such report under the Japanese Banking Act), has fallen below 5.125%; provided, however, that a Capital Ratio Event shall be deemed to have not occurred if prior to such report or public announcement, (a) the Company submits a plan to the FSA or any other relevant Japanese governmental organizations, under which plan its Consolidated Common Equity Tier 1 Capital Ratio is expected to increase above 5.125% in the absence of a Going Concern Write-Down of the Securities, and (b) the FSA or any other relevant Japanese governmental organizations approves such plan. In such case, the Company
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will endeavor to, as soon as practicable after the Company reports or publicly announces, as applicable, its Consolidated Common Equity Tier 1 Capital Ratio, deliver a written notice to the holders of the Securities, the Trustee and the paying agent in accordance with the terms of this Indenture, confirming that a Capital Ratio Event shall be deemed to have not occurred. Any failure or delay by the Company to deliver such notice shall not change or delay the effect of the non-occurrence of the Capital Ratio Event on its payment obligations under the Securities, or give holders of the Securities any rights as a result of such failure or delay.
“Going Concern Discharge Date” means the date to be determined by the Company after discussions with the FSA and any other relevant Japanese governmental organizations and notified to the holders of the Securities and the Trustee, such date to fall no more than ten Business Days from the date of the Going Concern Write-Down Notice.
“Going Concern Write-Down Amount” means, on any Going Concern Discharge Date, the amount by which the Current Principal Amount of the relevant series of Securities per $1,000 in Original Principal Amount is to be reduced on such date, such amount being:
(a) the product of the Total Going Concern Write-Down Amount and a ratio, the numerator of which is the Current Principal Amount of the relevant series of Securities per $1,000 in Original Principal Amount, and the denominator of which is the sum of (i) the aggregate Current Principal Amount of the entire relevant series of Securities and (ii) the aggregate Current Principal Amount of any Going Concern Loss Absorbing Instruments (rounding any amount less than a whole cent up to the nearest whole cent); provided, however, that if there is outstanding any Going Concern Loss Absorbing Instrument that by its terms provides for the Write-Down or Conversion of such instrument in an amount greater than that which would have been applied to such instrument if such instrument contained terms substantially equivalent to the Going Concern Write-Down provisions applicable to the relevant series of Securities as set forth in this Article, then the Going Concern Write-Down Amount shall be the product of the Total Going Concern Write-Down Amount less the sum of the Current Principal Amounts of any Going Concern Loss Absorbing Instruments containing the above-mentioned terms that shall become subject to the Write-Down or Conversion as set forth above (and if the Total Going Concern Write-Down Amount less the said sum becomes less than zero, the Total Going Concern Write-Down Amount shall be zero) and a ratio, the numerator of which is the Current Principal Amount of the relevant series of Securities per $1,000 in Original Principal Amount, and the denominator of which is the sum of (i) the aggregate Current Principal Amount of the entire relevant series of Securities and (ii) the aggregate Current Principal Amount of any Going Concern Loss Absorbing Instruments (other than any such Going Concern Loss Absorbing Instruments containing the above-mentioned terms) (rounding any amount less than a whole cent up to the nearest whole cent); or
(b) if the amount set forth in (a) is equal to or greater than the Current Principal Amount of the relevant series of Securities per $1,000 in Original Principal Amount, then the amount necessary to reduce the Current Principal Amount of the relevant series of Securities to one cent per $1,000 in Original Principal Amount.
“Total Going Concern Write-Down Amount” means the amount determined by the Company after consultation with the FSA or any other relevant Japanese supervisory authority that would be sufficient in order to restore its Consolidated Common Equity Tier 1 Capital Ratio above 5.125% by the Going Concern Write-Down of all or part of the aggregate Current Principal Amount outstanding of the entire relevant series of Securities and the Write-Down or Conversion of all or part of the aggregate Current Principal Amount outstanding of any Going Concern Loss Absorbing Instrument.
For the purposes of the calculation of the Going Concern Write-Down Amount, the aggregate Current Principal Amount outstanding of the entire relevant series of Securities and the aggregate Current Principal Amount outstanding of any Going Concern Loss Absorbing Instruments that are not denominated in Japanese yen shall initially be calculated in Japanese yen, and the Going Concern Write-Down Amount shall be initially calculated in Japanese yen and converted into U.S. dollars or any other currency in which the relevant series of Securities are denominated, each in a manner that the Company deems appropriate.
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Section 14.02. Notice of Going Concern Write-Down. As soon as practicable following the occurrence of a Capital Ratio Event, the Company shall give notice to DTC and the holders of the Securities via DTC (and send a copy to the Trustee for informational purposes), in the form attached as Exhibit D hereto (the “Going Concern Write-Down Notice”) (a) stating that a Capital Ratio Event has occurred and a Going Concern Write-Down will therefore take place or has therefore taken place, as applicable, on the Going Concern Discharge Date and (b) specifying the relevant Going Concern Discharge Date, the relevant Going Concern Write-Down Amount and the aggregate Current Principal Amount of the relevant series of Securities on the relevant Going Concern Discharge Date after giving effect to the relevant Going Concern Write-Down, in respect of the entire relevant series of the Securities. Any failure or delay by the Company to provide a Going Concern Write-Down Notice shall not change or delay the effect of the Capital Ratio Event on its payment obligations on the Securities.
Section 14.03. Going Concern Write-Down. Notwithstanding anything to the contrary contained herein or in the terms of the Securities, upon the occurrence of a Capital Ratio Event, no Current Principal Amount of, interest and other amounts under the relevant series of Securities shall thereafter become due to the extent related to the relevant Going Concern Write-Down Amount, and other than with respect to the Current Principal Amount, any Additional Amounts and interest that have become due and payable prior to the Capital Ratio Event and remain unpaid (as identified in (ii) below),
(a) the Holders or beneficial owners shall have no rights whatsoever under this Indenture or the Securities to take any action or enforce any rights or instruct the Trustee to take any action or enforce any rights whatsoever,
(b) except for any indemnity and/or security provided by any Holder or beneficial owner in such direction or related to such direction, any direction previously given to the Trustee by any Holders or beneficial owners shall cease automatically and shall be null and void and of no further effect,
(c) no Holder or beneficial owner may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company arising under, or in connection with, the relevant series of Securities and each Holder or beneficial owner of the relevant series of Securities shall, by virtue of its holding of any such series of Securities, be deemed to have waived all such rights of set-off, compensation or retention, and
(d) no Holder or beneficial owner will be entitled to make any claim in any bankruptcy, insolvency or liquidation proceedings involving the Company or have any ability to initiate or participate in any such proceedings or do so through a representative,
in each case, to the extent such right, instruction, exercise, claim or pleading pertains to the Current Principal Amount of the relevant series of Securities that has been or will be subject to a Going Concern Write-Down as a result of such Capital Ratio Event having occurred, or interest thereon (including Additional Amounts with respect thereto, if any), unless such Current Principal Amount has been reinstated, as set forth under Section 14.05.
On a Going Concern Discharge Date:
(i) the Current Principal Amount of the relevant series of Securities, except for principal that has become due and payable prior to the occurrence of the Capital Ratio Event and remain unpaid, will be written down by an amount equal to the relevant Going Concern Write-Down Amount, and the Company shall be discharged and released from any and all of its obligations to pay the Current Principal Amount of such series of Securities in an amount equal to the relevant Going Concern Write-Down Amount and the interest on such series of Securities (including Additional Amounts with respect thereto, if any) in an amount equal to the interest on the relevant Going Concern Write-Down Amount (including Additional Amounts with respect thereto, if any);
(ii) the Company’s obligations shall remain with respect to (A) any accrued and unpaid interest on or the Current Principal Amount of such series of Securities and (B) any Additional Amounts, in the case of
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each of subclauses (A) and (B) of this paragraph (ii), if and only to the extent that such interest or Additional Amounts or the Current Principal Amount, as applicable, is not written down, discharged or released pursuant to paragraph (i) above, or became due and payable to the holders of such series of Securities prior to the relevant Capital Ratio Event; and
(iii) the Holders and beneficial owners of such series of Securities will be deemed to irrevocably waive their right to receive or claim, and no longer have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, repayment of the Current Principal Amount of or the interest on (including Additional Amounts with respect thereto, if any) such series of Securities written down, discharged or released pursuant to paragraph (i) above, and except as described in paragraph (ii) above, all rights of any Holder or beneficial owner for payment of any amounts under or in respect of the relevant series of Securities will become null and void, and any Holder or beneficial owner who has received such payment shall be obliged to return the amount so received immediately to the Company.
The events described in (i) through (iii) above are referred to as a “Going Concern Write-Down.”
A Capital Ratio Event may occur on any number of occasions and, accordingly, any series of Securities may be written down on any number of occasions. For the avoidance of doubt, the Current Principal Amount of any series of Securities may never be reduced to below one cent per $1,000 in Original Principal Amount as a result of any Going Concern Write-Down.
Section 14.04. Notice of Write-Up. As soon as practicable following the occurrence of a Write-Up Event, the Company shall give written notice to DTC and the holders of the Securities via DTC (and send a copy to Trustee for informational purposes), in the form attached as Exhibit E hereto (the “Write-Up Notice”) (a) stating that a Write-Up Event has occurred and a Write-Up will therefore take place on the Write-Up Date and (b) specifying the relevant Write-Up Date, the relevant Write-Up Amount and the Current Principal Amount of the relevant series of Securities on the relevant Write-Up Date after giving effect to the relevant Write-Up, in respect of the entire relevant series of the Securities.
A “Write-Up Event” shall be deemed to occur if and when the Company determines, in its sole discretion and in accordance with the Applicable Banking Regulations and other applicable laws and regulations, to reinstate an amount of principal of the relevant series of Securities that was previously subject to a Going Concern Write-Down after the Company obtains prior confirmation from the FSA or any other relevant Japanese governmental organizations that its Consolidated Common Equity Tier 1 Capital Ratio will remain at a sufficiently high level after giving effect to the relevant Write-Up of the relevant series of Securities (together with the write-up of any Write-Up Instruments).
“Write-Up Amount” means, on any Write-Up Date, the amount by which the Current Principal Amount of the relevant series of Securities per $1,000 in Original Principal Amount is to be increased on any such date, such amount being the product of the Total Write-Up Amount and a ratio, the numerator of which is $1,000 in Original Principal Amount of the relevant series of Securities minus the Current Principal Amount outstanding of the relevant series of Securities per $1,000 in Original Principal Amount, and the denominator of which is the sum of (i) the aggregate Original Principal Amount of the entire relevant series of Securities minus the aggregate Current Principal Amount outstanding of the entire relevant series of Securities and (ii) the aggregate Original Principal Amount of any Write-Up Instruments minus the aggregate Current Principal Amount outstanding of any Write-Up Instruments, each as of the date of the relevant Write-Up Event (rounding any amount less than a whole cent down to the nearest whole cent).
“Total Write-Up Amount” means the amount determined by the Company after consultation with the FSA or any other relevant Japanese governmental organizations by which the aggregate Current Principal Amount outstanding of the entire relevant series of Securities and the aggregate Current Principal Amount outstanding of any Write-Up Instruments is to be increased.
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For the purposes of the calculation of the Write-Up Amount, the aggregate Original Principal Amount and the aggregate Current Principal Amount outstanding of the entire relevant series of Securities and the aggregate Original Principal Amount and the aggregate Current Principal Amount outstanding of any Write-Up Instruments that are not denominated in Japanese yen shall initially be calculated in Japanese yen, and the Write-Up Amount shall be initially calculated in Japanese yen and converted into U.S. dollars or any other currency in which the relevant series of Securities are denominated, each in a manner that the Company deems appropriate.
“Write-Up Instrument” means any Going Concern Loss Absorbing Instrument that includes provisions permitting the reinstatement of previously written-down principal amounts substantially similar to those applicable to the Securities.
“Write-Up Date” means the date that is determined by the Company in its sole discretion after consultation with the FSA or any other relevant Japanese governmental organizations and shall be no later than ten Business Days following the date of the relevant Write-Up Notice.
Section 14.05. Write-up upon a Write-Up Event. Subject to the Applicable Banking Regulations and other applicable laws and regulations, upon occurrence of a Write-Up Event, the Current Principal Amount of any series of outstanding Securities that have been subject to one or more Going Concern Write-Downs shall be increased, and an amount of principal that was previously subject to a Going Concern Write-Down shall be reinstated, in each case, by the relevant Write-Up Amount on the relevant Write-Up Date.
On the relevant Write-Up Date, claims of Holders of any series of Securities with respect to payments of principal of the relevant series of Securities that were previously waived upon the occurrence of a Going Concern Write-Down, and the Company’s obligations to pay the principal of the relevant series of Securities that were previously discharged and released upon the occurrence of a Going Concern Write-Down, shall be reinstated, and such waiver, discharge and release previously given or granted shall be of no further effect, without any retroactive effect, in each case, only to the extent of the relevant Write-Up Amount.
The events described in the preceding two paragraphs are referred to as a “Write-Up.”
Any series of Securities may be subject to one or more Write-Ups, but in no event shall the Current Principal Amount of such series of Securities, after giving effect to any Write-Up, exceed the Original Principal Amount of such series of Securities.
Notwithstanding anything to the contrary contained herein or in the terms of the Securities, no Write-Up Event shall occur (i) after any date fixed for redemption, (ii) after any claim of Holders of any series of Securities becomes due and payable pursuant to the subordination provisions under Article 12, or (iii) after an occurrence of a Viability Event or a Bankruptcy Event.
Section 14.06. Additional Provisions Relating to a Going Concern Write-Downs and Write-Ups.
(a) Going Concern Write-Down Procedure and Write-Up Procedure for Securities while held through DTC.
A Going Concern Write-Down Notice or Write-Up Notice delivered to DTC by the Company shall (i) request that, as soon as practicable following its receipt of the Going Concern Write-Down Notice or Write-Up Notice, DTC post the Going Concern Write-Down Notice or Write-Up Notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities), (ii) request that DTC transmit the Going Concern Write-Down Notice or Write-Up Notice to the direct participants of DTC holding the relevant series of Securities at such time pursuant to DTC’s rules and procedures, and (iii) request that DTC mark-down or mark-up all positions relating to the relevant series of Securities on DTC’s records on the Going Concern Discharge Date or Write-Up Date to reflect the Going Concern Write-Down or the Write-Up. To the extent that there has been a variation to DTC’s rules and procedures, the instructions of the Company shall vary to accord to the then applicable rules and regulations of DTC.
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The Company shall also promptly send a copy of the Going Concern Write-Down Notice or Write-Up Notice to the Trustee for informational purposes only.
By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder shall be deemed to have authorized, directed and requested DTC and any direct participant in DTC or other intermediary through which it holds such Securities, the Trustee and the Agents to take any and all necessary action, if required, to effectuate (i) the Going Concern Write-Down or Write-Up and (ii) the mark-down or mark-up all positions relating to the Securities on DTC’s records to reflect the Going Concern Write-Down or Write-Up.
The Company and each Holder or beneficial owner of a Security acknowledge and agree that, following the receipt of a Going Concern Write-Down Notice by DTC setting forth that the Current Principal Amount of any series of Securities will be reduced to one cent per $1,000 in Original Principal Amount and the commencement of the Suspension Period, DTC will suspend all clearance and settlement of any series of Securities through DTC for the duration of the Suspension Period.
The Registrar will reflect a Going Concern Write-Down or Write-Up on the Register pursuant to the provisions of Section 2.08 on the Going Concern Discharge Date or Write-Up Date following receipt by the Trustee of the Going Concern Write-Down Notice or Write-Up Notice from the Company for informational purposes and after DTC’s records have reflected the Going Concern Write-Down or Write-Up.
(b) Going Concern Write-down Procedure and Write-Up Procedure for Securities held in the form of certificated securities.
To the extent that the Securities are held in the form of certificated securities, the Company shall request a copy of the Register and deliver the Going Concern Write-Down Notice or Write-Up Notice (as amended to reflect that the Securities are no longer in global form or held through DTC) to the Holders and a copy thereof to the Trustee for informational purposes.
On the Business Day on which such Going Concern Write-Down Notice or Write-Up Notice is delivered to the Trustee, the Trustee shall inform the Registrar of the receipt of the Going Concern Write-Down Notice or Write-Up Notice and the Registrar shall with effect from the open of business on the next following Business Day cease to register any attempted transfer of any Securities.
By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder or beneficial owner shall be deemed to have authorized, directed and requested the Trustee and the Agents and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to effectuate the Going Concern Write-Down or Write-Up as of the Going Concern Discharge Date or Write-Up Date.
The Registrar will reflect a Going Concern Write-Down or Write-Up on the Register on the Going Concern Discharge Date or Write-Up Date following receipt of the Going Concern Write-Down Notice or Write-Up Notice by the Trustee pursuant to the provisions of Section 2.08.
All authority conferred or agreed to be conferred by each Holder pursuant to this Section 14.06, including the consents given by such Holder, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder.
(c) Upon occurrence of a Capital Ratio Event and delivery of the related Going Concern Write-Down Notice by the Company to the Trustee, any and all moneys deposited with the Trustee (and held by it or any Paying Agent) for the payment of any amounts under the Securities that has not become due and payable prior to the date of such Capital Ratio Event shall be returned promptly to the Company. For the avoidance of doubt, a
62
Capital Ratio Event and the occurrence of a Going Concern Write-Down shall not constitute a default or breach under this Indenture.
(d) By its acquisition of the Securities, whether upon original issue or upon transfer, assignment or exchange thereof, each Holder, to the extent permitted by applicable laws and regulations:
(i) waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes or abstains from taking, in either case solely in accordance and in connection with a Going Concern Write-Down and a Write-Up, as the case may be;
(ii) agrees to be bound by and consents to the Going Concern Write-Down that will result in the cancellation of the principal amount of, or interest on the relevant series of Securities to the extent of the relevant Going Concern Write-Down Amount or interest thereon (other than payments of Current Principal Amount, any Additional Amounts and interest that have become due and payable prior to the Capital Ratio Event and remain unpaid); and
(iii) agrees that upon the occurrence of a Capital Ratio Event, (x) the Capital Ratio Event does not constitute an event of default or breach, (y) the Trustee shall not be required to take any further directions from the holders of the Securities under Sections 4.09 and 5.02 of this Indenture, which sections authorize the Holders to direct certain actions relating to the Securities, and (z) this Indenture shall impose no duties upon the Trustee whatsoever solely with respect to the Going Concern Write-Down.
(e) The Trustee has no responsibility for nor liability with respect to actions taken or not taken by the DTC or any other clearing system or its participants or members or any broker-dealers with respect to the notification or implementation of a Going Concern Write-Down or a Write-Up, nor any application of funds or delivery of notices prior to a Going Concern Write-Down or a Write-Up, or with respect to the return of any amount that was paid to any Holder following a Capital Ratio Event in excess of the amount that should have been paid to such Holder based on the proper application of this Article.
(f) Notwithstanding any delay in, or unavailability of procedures of, DTC, any other clearing system or the Registrar reflecting the Going Concern Write-Down on its systems, the Going Concern Write-Down shall take place on the relevant Going Concern Discharge Date.
(g) All authority conferred or agreed to be conferred by each Holder pursuant to this Article, including the consents given by such Holder, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder.
(h) None of the Trustee, the Paying Agent and the Registrar shall be under any duty to determine, monitor or report whether a Capital Ratio Event or Write-Up Event has occurred or circumstances exist which may lead to the occurrence of a Capital Ratio Event or a Write-Up and will not be responsible or liable to the Holders or any other person for any loss arising from any failure by it to do so. Unless and until the Trustee receives a Going Concern Write-Down Notice in accordance with Section 14.02, the Trustee shall be entitled to assume that no Capital Ratio Event or other such event or circumstance has occurred or exists. The Trustee shall be entitled, without further enquiry and without liability to any Holder or any other person, to rely on any Going Concern Write-Down Notice and each such Going Concern Write-Down Notice shall be conclusive evidence of the occurrence of the Capital Ratio Event. Unless and until the Trustee receives a Write-Up Notice in accordance with Section 14.04, the Trustee shall be entitled to assume that no Write-Up Event or other such event or circumstance has occurred or exists. The Trustee shall be entitled, without further enquiry and without liability to any Holder or any other person, to rely on any Write-Up Notice and each such Write-Up Notice shall be conclusive evidence of the occurrence of the Write-Up Event. Each of the Trustee, the Paying Agent, the Registrar, DTC and any other relevant clearing system shall be entitled without further enquiry and without liability to any Holder or any other person to rely conclusively on any Going Concern Write-Down Notice or
63
Write-Up Notice, and the same shall be conclusive and binding on Holders. So long as such Securities are held in global form, neither the Trustee, the Paying Agent, the Registrar nor any common depository nor any registered holder thereof shall, in any circumstances, be responsible or liable to the Holders or any other person for any act, omission or default by DTC or any other relevant clearing system, or its respective participants, members, any broker-dealer or any other relevant third party with respect to the notification and/or implementation of any Going Concern Write-Down or Write-Up by any of them in respect of such Securities.
[Signature pages follow]
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| MIZUHO FINANCIAL GROUP, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signatures continue on next page]
[Signature page to Indenture]
| THE BANK OF NEW YORK MELLON as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
[End of Signatures]
[Signature page to Indenture]
EXHIBIT A
FORM OF OFFICER’S CERTIFICATE OF MIZUHO FINANCIAL GROUP, INC.
PURSUANT TO SECTION 3.06
Date: [●]
Pursuant to Section 3.06 of the perpetual subordinated indenture dated as of [ ] (the “Indenture”), between Mizuho Financial Group, Inc. (the “Company”) and The Bank of New York Mellon, as trustee, relating to the issuance of $[ ] aggregate principal amount of [[ ]%] [floating rate] perpetual subordinated notes issued on 20[ ] (the “Securities”), I hereby certify, in my capacity as a Responsible Officer of the Company (as defined in the Indenture), that:
As of the date hereof, the Company [is in compliance with all conditions and covenants on its part under the Indenture.][is not in compliance with all conditions and covenants under the Indenture, details of each such breach (as defined in the Indenture) and the nature and status thereof specified below: [ ]]
[Signature page follows]
A-1
IN WITNESS WHEREOF, the undersigned has executed this compliance certificate as of the date set forth above.
| By: | ||
| Name: [ ] | ||
| Title: [ ] | ||
A-2
EXHIBIT B
FORM OF CANCELLATION OF INTEREST PAYMENT NOTICE PURSUANT TO SECTION 3.171
NOTICE TO DTC, TRUSTEE AND AGENTS AND FOR PUBLICATION
AS A NOTICE TO HOLDERS AND BENEFICIAL OWNERS OF THE NOTES
[Company Letterhead]
To: The Depository Trust Company
55 Water Street, 25th Floor
New York, NY 10041-0099
Attn: Mandatory Reorganization Department
Fax: +1-212-855-5488
Email: mandatoryreorgannouncements@dtcc.com [* In the case of certificated securities, this notice shall be sent directly to Holders and references to DTC herein shall be amended accordingly.]
The Bank of New York Mellon
(as Trustee, Paying Agent, Registrar and Transfer Agent)
240 Greenwich Street
New York, NY 10286
United States of America
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +1-212-815-5915
with a copy to its Specified Corporate Trust Office:
The Bank of New York Mellon, Singapore Branch
One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +65 6883 0338
Email: ctsgclientservice@bnymellon.com
Re: Mizuho Financial Group, Inc.’s [U.S.$/another currency][●]2 [ [●]%] [Floating Rate] [Perpetual Subordinated Notes] (CUSIP: [●]; ISIN: [●]) – Notice to DTC, the Trustee, the Agents and Holders and Beneficial Owners of the Notes of [Optional]/[Mandatory] Cancellation of Interest Payment
This notice is in relation to Mizuho Financial Group, Inc.’s [U.S.$/another currency] [●] [[●]%] [floating rate] [perpetual subordinated notes] (CUSIP: [●]; ISIN: [●]) issued on [●], 20[●] (the “Notes”) pursuant to the perpetual subordinated indenture, dated [ ] (the “Indenture”) between Mizuho Financial Group, Inc. (the “Company”) and The Bank of New York Mellon, as trustee (the “Trustee”), and offered and sold pursuant to the prospectus supplement dated [●], 20[●] and the accompany prospectus dated [●], 20[●]. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.
| 1 | Note: Prior to sending this notice, the Company (or another party on its behalf) should contact DTC (Mandatory Reorganization Announcement Manager, +1-212-855-1000) to notify them of the occurrence of a cancellation of interest payment and to reconfirm the address above. This notice is subject to modification if the Notes are in definitive form or if DTC’s procedures change following the date of this Indenture. |
| 2 | Note: Insert the aggregate principal amount of the Notes outstanding at the time of interest cancellation (reflecting any repurchase or write-down/write-up prior thereto). |
B-1
[in the case of an optional cancellation of interest pursuant to [Section 3.11] of the Indenture:]
The Company hereby notifies The Depository Trust Company (“DTC”), the Trustee, the Agents and the Holders and beneficial owners of the Notes that it has determined, in its sole discretion to cancel [all of/a part of] the payment of interest scheduled to be made on the Notes on [●], 20[●] (the “Interest Payment Date”) pursuant to Section [3.11] of the Indenture.
Accordingly, [no interest will be payable with respect to the Notes on the Interest Payment Date / the amount of interest scheduled to be paid on the Notes on the Interest Payment Date has been cancelled and is no longer payable in the aggregate amount of $[●] in respect of the entire Notes, and the aggregate amount of interest on the entire Notes that is to be paid on the Interest Payment Date is $[●]].
[in the case of a mandatory cancellation of interest pursuant to Section 3.12 of the Indenture:]
The Company hereby notifies The Depositary Trust Company (“DTC”), the Trustee, the Agents and the Holders and beneficial owners of the Notes that, due to the Interest Payable Amount Limitation, it is prohibited from paying and has cancelled [all of/a part of] the payment of interest scheduled to be made on the Notes on [●], 20[●] (the “Interest Payment Date”) pursuant to [Section 3.12] of the Indenture.
The Interest Payable Amount applicable to the entire Notes on the Interest Payment Date is [describe the Interest Payable Amount applicable to the entire Notes on the Interest Payment Date] and, accordingly, the Company is prohibited from paying and has cancelled [all of][part of] the interest on the Notes on the Interest Payment Date in the aggregate amount of $[●] in respect of the entire Notes, as such amount exceeds the Interest Payable Amount applicable to the entire Notes on the Interest Payment Date.
[in either case]
Any interest amount (including Additional Amounts with respect thereto, if any), the payment of which is cancelled, will be deemed not to have accrued and will not be due and payable at any time hereafter, and the Company shall be discharged and released from any and all of its obligations to pay such cancelled interest (and Additional Amounts with respect thereto, if any) on the Notes.
If any payment of interest in respect of the Notes all or part of which should have not been paid to a Holder or beneficial owner upon the proper application of the [optional/mandatory] interest payment cancellation provisions in the Indenture is made to such Holder or beneficial owner, such payment shall be deemed null and void, and such Holder or beneficial owner or the Trustee or Paying Agent (to the extent it has not paid such amount to any Holder) shall be obliged to return the amount of the payment immediately to the Company.
The Company hereby instructs DTC, the Trustee and the Paying Agent to take any and all necessary action to implement such interest payment cancellation of the Notes as set forth above pursuant to DTC’s rules and procedures.
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to Holders of the Notes) and to transmit this notice to the participants of DTC holding positions in the Notes pursuant to DTC’s rules and procedures.
B-2
Should DTC, the Trustee or any Holders or beneficial owners of the Notes have any inquiries, please contact:
[Company Contact Person]
[Telephone]
[Fax]
[Email]
| * | The CUSIP number and ISIN appearing in this notice have been assigned to the Notes by organizations not affiliated with the Company and is included solely for the convenience of the Holders of the Notes. The Company will not be responsible for the selection or use of this CUSIP number or ISIN, nor is any representation made as to the correctness or accuracy of the same on the Notes or as indicated in this notice. The cancellation of payment of interest on the Notes will not be affected by any defect in or omission of such numbers. |
Dated:
| By: | ||
| Name: | ||
| Title: | ||
B-3
EXHIBIT C
FORM OF WRITE-DOWN AND CANCELLATION NOTICE PURSUANT TO SECTION 13.023
NOTICE TO DTC, TRUSTEE AND AGENTS AND FOR PUBLICATION
AS A NOTICE TO HOLDERS AND BENEFICIAL OWNERS OF THE NOTES
[Company Letterhead]
To: The Depository Trust Company
55 Water Street, 25th Floor
New York, NY 10041-0099
Attn: Mandatory Reorganization Department
Fax: +1-212-855-5488
Email: mandatoryreorgannouncements@dtcc.com [* In the case of certificated securities, this notice shall be sent directly to Holders and references to DTC herein shall be amended accordingly.]
The Bank of New York Mellon
(as Trustee, Paying Agent, Registrar and Transfer Agent)
240 Greenwich Street
New York, NY 10286
United States of America
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +1-212-815-5915
with a copy to its Specified Corporate Trust Office:
The Bank of New York Mellon, Singapore Branch
One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +65 6883 0338
Email: ctsgclientservice@bnymellon.com
Re: Mizuho Financial Group, Inc.’s [U.S.$/another currency][●]4 [[●]%] [Floating Rate] [Perpetual Subordinated Notes] (CUSIP: [●]; ISIN: [●]) – Notice to DTC, the Trustee, the Agents and Holders and Beneficial Owners of the Notes of the Occurrence of a Viability Event or Bankruptcy Event and Write-Down and Cancellation of the Notes
This notice is in relation to Mizuho Financial Group, Inc.’s [U.S.$/another currency] [●] [[●]%] [floating rate] [perpetual subordinated notes] (CUSIP: [●]; ISIN: [●]) issued on [●], 20[●] (the “Notes”) pursuant to the perpetual subordinated indenture, dated [ ] (the “Indenture”) between Mizuho Financial Group, Inc. (the “Company”) and The Bank of New York Mellon, as trustee (the “Trustee”), and offered and sold pursuant to the prospectus supplement dated [●], 20[●] and the accompany prospectus dated [●], 20[●]. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.
The Company hereby notifies The Depository Trust Company (“DTC”), the Trustee, the Agents and the Holders and beneficial owners of the Notes that [a Viability Event has occurred with respect to the Notes and the
| 3 | Note: Prior to sending this notice, the Company (or another party on its behalf) should contact DTC (Mandatory Reorganization Announcement Manager, +1-212-855-1000) to notify them of the occurrence of a Viability Event or Bankruptcy Event and to reconfirm the address above. This notice is subject to modification if the Notes are in definitive form or if DTC’s procedures change following the date of this Indenture. |
| 4 | Note: Insert the aggregate principal amount of the Notes outstanding at the time of write-down and cancellation (reflecting any repurchase or write-down/write-up prior thereto). |
C-1
Write-Down and Cancellation will therefore take place on the Discharge and Cancellation Date, which has been determined to be [insert the Discharge and Cancellation Date] / a Bankruptcy Event has occurred with respect to the Notes and the Write-Down and Cancellation has therefore taken place on [insert date (and time, if practicably possible) of Bankruptcy Event]].
[On [insert Discharge and Cancellation Date] (the “Discharge and Cancellation Date”) / Immediately upon the occurrence of the Bankruptcy Event], (i) the full principal amount of the Notes will be permanently written down to zero, the Company shall be discharged and released from any and all of its obligations to pay principal of, interest on and any other amount under the Notes (including Additional Amounts with respect thereto, if any), and the Notes will be cancelled, (ii) the Company’s obligations shall remain with respect to (A) any accrued and unpaid interest on or principal of the Notes and (B) any Additional Amounts, in the case of each of subclauses (A) and (B) of this paragraph (ii), if and only to the extent that such interest, principal or Additional Amounts, as applicable, has become due and payable to the Holders prior to the [Viability Event][Bankruptcy Event], and remain unpaid, and (iii) the Holders and beneficial owners of the Notes will be deemed to have irrevocably waived their right to claim or receive, and no longer have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, repayment of principal of, or interest on or any other amount under the Notes (including Additional Amounts with respect thereto, if any) written down, discharged or released pursuant to paragraph (i) above, and except as described in paragraph (ii) above, all rights of any Holder or beneficial owner for payment of any amounts under or in respect of the Notes will become null and void, and any Holder or beneficial owner who has received such payment shall be obliged to return the amount so received immediately to the Company.
The Company hereby instructs DTC to commence the Suspension Period by implementing a “chill” on the clearance and settlement of the Notes within DTC. The Suspension Period shall commence on the New York Banking Day immediately following the date on which this notice is received by DTC, or, if DTC so determines in its discretion in accordance with its rules and procedures, on the second (2nd) New York Banking Day immediately following the date on which this notice is received by DTC, and end [[in case of the occurrence of a Viability Event] on the Discharge and Cancellation Date/[in case of the occurrence of a Bankruptcy Event] on the date on which DTC writes down the full principal amount of the Notes to zero and cancels the Notes pursuant to its rules and procedures]. The Holders and beneficial owners of the Notes will not be able to settle the transfer of any Notes through DTC upon commencement of the Suspension Period, and any sale or other transfer of the Notes that a Holder or beneficial owner of the Notes may have initiated prior to the commencement of the Suspension Period that is scheduled to settle during the Suspension Period will be rejected by, and will not be settled within, DTC.
Further, DTC is hereby instructed to write-down all participants’ positions held in the Notes on DTC’s records as of [the Discharge and Cancellation Date/the date (and time, if practicably possible) of the occurrence of the Bankruptcy Event].
The Company hereby instructs the Paying Agent and Registrar to cancel the Notes and to make appropriate notations in the Register in accordance with the provisions of the Indenture as of [the Discharge and Cancellation Date / the date (and time, if practicably possible) of the occurrence of the Bankruptcy Event]. The Company requests that the Paying Agent and Registrar certifies that the Notes have been so cancelled and disposed of.
[Upon cancellation of the Notes / Immediately upon the occurrence of the Bankruptcy Event], the Notes shall become null and void.
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to Holders of the Notes) and to transmit this notice to the participants of DTC holding positions in the Notes pursuant to DTC’s rules and procedures.
C-2
Should DTC, the Trustee or any Holders or beneficial owners of the Notes have any inquiries, please contact:
[Company Contact Person]
[Telephone]
[Fax]
[Email]
| * | The CUSIP number and ISIN appearing in this notice have been assigned to the Notes by organizations not affiliated with the Company and is included solely for the convenience of the Holders of the Notes. The Company will not be responsible for the selection or use of this CUSIP number or ISIN, nor is any representation made as to the correctness or accuracy of the same on the Notes or as indicated in this notice. The Write-Down and Cancellation of the Notes will not be affected by any defect in or omission of such numbers. |
Dated:
| By: | ||
| Name: | ||
| Title: | ||
C-3
EXHIBIT D
FORM OF GOING CONCERN WRITE-DOWN NOTICE PURSUANT TO SECTION 14.025
NOTICE TO DTC, TRUSTEE AND AGENTS AND FOR PUBLICATION
AS A NOTICE TO HOLDERS AND BENEFICIAL OWNERS OF THE NOTES
[Company Letterhead]
To: The Depository Trust Company
55 Water Street, 25th Floor
New York, NY 10041-0099
Attn: Mandatory Reorganization Department
Fax: +1-212-855-5488
Email: mandatoryreorgannouncements@dtcc.com [* In the case of certificated securities, this notice shall be sent directly to Holders and references to DTC herein shall be amended accordingly.]
The Bank of New York Mellon
(as Trustee, Paying Agent, Registrar and Transfer Agent)
240 Greenwich Street
New York, NY 10286
United States of America
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +1-212-815-5915
with a copy to its Specified Corporate Trust Office:
The Bank of New York Mellon, Singapore Branch
One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +65 6883 0338
Email: ctsgclientservice@bnymellon.com
Re: Mizuho Financial Group, Inc.’s [U.S.$ /another currency][●]6 [●]% [Floating Rate] [Perpetual Subordinated Notes] (CUSIP: [●]; ISIN: [●]) – Notice to DTC, the Trustee, the Agents and Holders and Beneficial Owners of the Notes of the Occurrence of a Capital Ratio Event and Going Concern Write-Down of the Notes
This notice is in relation to Mizuho Financial Group, Inc.’s [U.S.$/another currency][●] [[●]%] [floating rate] [perpetual subordinated notes] (CUSIP: [●]; ISIN: [●]) issued on [●], 20[●] (the “Notes”) pursuant to the perpetual subordinated indenture, dated [ ] (the “Indenture”) between Mizuho Financial Group, Inc. (the “Company”) and The Bank of New York Mellon, as trustee (the “Trustee”), and offered and sold pursuant to the prospectus supplement dated [●], 20[●] and the accompany prospectus dated [●], 20[●]. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.
| 5 | Note: Prior to sending this notice, the Company (or another party on its behalf) should contact DTC (Mandatory Reorganization Announcement Manager, +1-212-855-1000) to notify them of the occurrence of a Capital Ratio Event and to reconfirm the address above. This notice is subject to modification if the Notes are in definitive form or if DTC’s procedures change following the date of this Indenture. |
| 6 | Note: Insert the aggregate principal amount of the Notes outstanding at the time of write-up (reflecting any repurchase or write-down/write-up prior thereto). |
D-1
The Company hereby notifies The Depository Trust Company (“DTC”), the Trustee, the Agents and the Holders and beneficial owners of the Notes that (i) [a Capital Ratio Event has occurred with respect to the Notes and the Going Concern Write-Down will therefore take place on the Going Concern Discharge Date, which has been determined to be [insert the Going Concern Discharge Date] / a Capital Ratio Event has occurred with respect to the Notes and the Going Concern Write-Down has therefore taken place on [insert date (and time, if practicably possible) of Capital Ratio Event], and (ii) the aggregate Going Concern Write-Down Amount, and the aggregate Current Principal Amount of the Notes on the Going Concern Discharge Date after giving effect to such Going Concern Write-Down, each in respect of the entire Notes, have been determined to be $[describe the aggregate Going Concern Write-Down Amount in respect of the entire Notes] and $[describe the aggregate Current Principal Amount of the entire Notes on the Going Concern Discharge Date after giving effect to such Going Concern Write-Down], respectively.
[in the case of a full write-down after this Going Concern Write-Down:]
On [insert Going Concern Discharge Date] (the “Going Concern Discharge Date”), (i) the Current Principal Amount of the Notes per $1,000 in Original Principal Amount, except for principal that has become due and payable prior to the occurrence of the Capital Ratio Event and remains unpaid, will be written down to one cent per $1,000 in Original Principal Amount, and interest shall cease to accrue on the Notes, the Company shall be discharged and released from any and all of its obligations to pay the Current Principal Amount of the Notes in an amount so written down and interest on the Notes (including Additional Amounts with respect thereto, if any), (ii) the Company’s obligations shall remain with respect to (A) any accrued and unpaid interest on or the Current Principal Amount of the Notes and (B) any Additional Amounts, in the case of each of subclauses (A) and (B) of this paragraph (ii), if and only to the extent that such interest or Additional Amounts or the Current Principal Amount, as applicable, is not written down, discharged or released pursuant to paragraph (i) above, or became due and payable to the holders of the Notes prior to the Capital Ratio Event, and (iii) the Holders and beneficial owners of the Notes will be deemed to have irrevocably waived their right to claim or receive, and no longer have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, repayment of the Current Principal Amount of the Notes or interest on the Notes (including Additional Amounts with respect thereto, if any) written down, discharged or released pursuant to paragraph (i) above, and except as described in paragraph (ii) above, all rights of any Holder or beneficial owner for payment of any amounts under or in respect of the Notes will become null and void, and any Holder or beneficial owner who has received such payment shall be obliged to return the amount so received immediately to the Company.
DTC is hereby instructed to (i) write down all participants’ positions held in the Notes on DTC’s records to one cent per $1,000 in Original Principal Amount as of the Going Concern Discharge Date and (ii) commence the Suspension Period by implementing a “chill” on the clearance and settlement of the Notes within DTC. The Suspension Period shall commence on the New York Banking Day immediately following the date on which this notice is received by DTC, or, if DTC so determines in its discretion in accordance with its rules and procedures, on the second (2nd) New York Banking Day immediately following the date on which this notice is received by DTC, and end in accordance with any further instruction given by the Company relating to any subsequent interest period during which a Write-Up Event occurs. The Holders and beneficial owners of the Notes will not be able to settle the transfer of any Notes through DTC upon commencement of the Suspension Period, and any sale or other transfer of the Notes that a Holder or beneficial owner of the Notes may have initiated prior to the commencement of the Suspension Period that is scheduled to settle during the Suspension Period will be rejected by, and will not be settled within, DTC.
The Company hereby instructs the Paying Agent and Registrar to make appropriate notations in the Register in accordance with the provisions of the Indenture as of the Going-Concern Discharge Date.
Further, the Company hereby instructs DTC, the Trustee and the Paying Agent to take any and all necessary action to implement an interest payment cancellation of the Notes in accordance with the provisions of the Indenture and DTC’s rules and procedures.
D-2
[in the case of a partial write-down after this Going Concern Write-Down:]
On [insert Going Concern Discharge Date] (the “Going Concern Discharge Date”), (i) the Current Principal Amount of the Notes per $1,000 in Original Principal Amount, except for principal that has become due and payable prior to the occurrence of the Capital Ratio Event and remain unpaid, will be written down by $[●] per $[●]7 (the “Going Concern Write-Down Amount”), which is the Current Principal Amount per $1,000 in Original Principal Amount, and the Company shall be discharged and released from any and all of its obligations to pay the Current Principal Amount of the Notes in an amount equal to the Going Concern Write-Down Amount and the interest on the Notes (including Additional Amounts with respect thereto, if any) in an amount equal to the interest on the Going Concern Write-Down Amount (including Additional Amounts with respect thereto, if any), (ii) the Company’s obligations shall remain with respect to (A) any accrued and unpaid interest on or the Current Principal Amount of Notes and (B) any Additional Amounts, in the case of each of subclauses (A) and (B) of this paragraph (ii), if and only to the extent that such interest or Additional Amounts or the Current Principal Amount, as applicable, is not written down, discharged or released pursuant to paragraph (i) above, or became due and payable to the holders of the Notes prior to the Capital Ratio Event, and (iii) the Holders and beneficial owners of the Notes will be deemed to have irrevocably waived their right to claim or receive, and no longer have any rights against the Company with respect to, and cannot instruct the Trustee to enforce, repayment of the Current Principal Amount of the Notes or interest on the Notes (including Additional Amounts with respect thereto, if any) written down, discharged or released pursuant to paragraph (i) above, and except as described in paragraph (ii) above, all rights of any Holder or beneficial owner for payment of any amounts under or in respect of the Notes will become null and void, and any Holder or beneficial owner who has received such payment shall be obliged to return the amount so received immediately to the Company.
DTC is hereby instructed to write down all participants’ positions held in the Notes on DTC’s records by an amount equal to the Going Concern Write-Down Amount (as described above) as of the Going-Concern Discharge Date.
The Company hereby instructs the Paying Agent and Registrar to make appropriate notations in the Register in accordance with the provisions of the Indenture as of the Going-Concern Discharge Date.
Further, the Company hereby instructs DTC, the Trustee and the Paying Agent to take any and all necessary action to implement interest payments based on the Current Principal Amount of the Notes in accordance with the provisions of the Indenture and DTC’s rules and procedures.
Interest on the Notes payable on or after the occurrence of the Capital Ratio Event shall be paid pursuant to [Section 3.13] and other provisions of the Indenture.
[in either case:]
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to Holders of the Notes) and to transmit this notice to the participants of DTC holding positions in the Notes pursuant to DTC’s rules and procedures.
| 7 | Note: Describe the Going Concern Write-Down Amount, and insert the Current Principal Amount per $1,000 in Original Principal Amount of the Notes. |
D-3
Should DTC, the Trustee or any Holders or beneficial owners of the Notes have any inquiries, please contact:
[Company Contact Person]
[Telephone]
[Fax]
[Email]
| * | The CUSIP number and ISIN appearing in this notice have been assigned to the Notes by organizations not affiliated with the Company and is included solely for the convenience of the Holders of the Notes. The Company will not be responsible for the selection or use of this CUSIP number or ISIN, nor is any representation made as to the correctness or accuracy of the same on the Notes or as indicated in this notice. The Going Concern Write-Down of the Notes will not be affected by any defect in or omission of such numbers. |
Dated:
| By: | ||
| Name: | ||
| Title: | ||
D-4
EXHIBIT E
FORM OF WRITE-UP NOTICE PURSUANT TO SECTION 14.048
NOTICE TO DTC, TRUSTEE AND AGENTS AND FOR PUBLICATION
AS A NOTICE TO HOLDERS AND BENEFICIAL OWNERS OF THE NOTES
[Company Letterhead]
To: The Depository Trust Company
55 Water Street, 25th Floor
New York, NY 10041-0099
Attn: Mandatory Reorganization Department
Fax: +1-212-855-5488
Email: mandatoryreorgannouncements@dtcc.com [* In the case of certificated securities, this notice shall be sent directly to Holders and references to DTC herein shall be amended accordingly.]
The Bank of New York Mellon
(as Trustee, Paying Agent, Registrar and Transfer Agent)
240 Greenwich Street
New York, NY 10286
United States of America
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +1-212-815-5915
with a copy to its Specified Corporate Trust Office:
The Bank of New York Mellon, Singapore Branch
One Temasek Avenue, #02-01 Millenia Tower, Singapore 039192
Attention: Global Corporate Trust – Mizuho Financial Group, Inc.
Fax: +65 6883 0338
Email: ctsgclientservice@bnymellon.com
Re: Mizuho Financial Group, Inc.’s [U.S.$/another currency] [●]9 [●]% [Floating Rate] [Perpetual Subordinated Notes] (CUSIP: [●]; ISIN: [●]) – Notice to DTC, the Trustee, the Agents and Holders and Beneficial Owners of the Notes of the Occurrence of a Write-Up Event and Write-Up of the Notes
This notice is in relation to Mizuho Financial Group, Inc.’s [U.S.$]/another currency] [●] [●]% [floating rate] [perpetual subordinated notes] (CUSIP: [●]; ISIN: [●]) issued on [●], 20[●] (the “Notes”) pursuant to the perpetual subordinated indenture, dated [ ] (the “Indenture”) between Mizuho Financial Group, Inc. (the “Company”) and The Bank of New York Mellon, as trustee (the “Trustee”), and offered and sold pursuant to the prospectus supplement dated [●], 20[●] and the accompany prospectus dated [●], 20[●]. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.
The Company hereby notifies The Depository Trust Company (“DTC”), the Trustee, the Agents and the Holders and beneficial owners of the Notes that (i) a Write-Up Event has occurred with respect to the Notes and
| 8 | Note: Prior to sending this notice, the Company (or another party on its behalf) should contact DTC (Mandatory Reorganization Announcement Manager, +1-212-855-1000) to notify them of the occurrence of a Write-Up Event and to reconfirm the address above. This notice is subject to modification if the Notes are in definitive form or if DTC’s procedures change following the date of this Indenture. |
| 9 | Note: Insert the aggregate principal amount of the Notes outstanding at the time of write-up (reflecting any repurchase or write-down/write-up prior thereto). |
E-1
the Write-Up will therefore take place on the Write-Up Date, which has been determined to be [insert the Write-Up Date], and (ii) the aggregate Write-Up Amount, and the aggregate Current Principal Amount of the Notes on the Write-Up Date after giving effect to the Write-Up, each in respect of the entire Notes, have been determined to be $[describe the aggregate Write-Up Amount in respect of the Notes] and $[describe the aggregate Current Principal Amount of the Notes on the Write-Up Date after giving effect to such Write-Up], respectively.
On [insert the Write-Up Date] (the “Write-Up Date”), the Current Principal Amount of the outstanding Notes per $1,000 in Original Principal Amount that have been subject to one or more Going Concern Write-Downs will be increased by $[●] per $[●]10 (the “Write-Up Amount”), which is the Current Principal Amount per $1,000 in Original Principal Amount.
DTC is hereby instructed to write up all participants’ positions held in the Notes on DTC’s records by an amount equal to the relevant Write-Up Amount as of the Write-Up Date. As set forth in the Indenture and the Notes, on the Write-Up Date, claims of Holders of the Notes with respect to payments of principal of the Notes that were previously waived upon the occurrence of one or more Going Concern Write-Downs, and the Company’s obligations to pay the principal of the Notes that were previously discharged and released upon the occurrence of one or more Going Concern Write-Downs, shall be reinstated, and such waiver, discharge and release previously given or granted shall be of no further effect, without any retroactive effect, in each case, only to the extent of the Write-Up Amount.
The Company hereby instructs the Paying Agent and Registrar to make appropriate notations in the Register in accordance with the provisions of the Indenture as of the Write-Up Date.
The Company hereby instructs DTC, the Trustee and the Paying Agent to take any and all necessary action to implement interest payments based on the Current Principal Amount of the Notes in accordance with the provisions of the Indenture and DTC’s rules and procedures.
Interest on the Notes payable on or after the occurrence of the Write-Up Event shall be paid pursuant to [Section 3.13] and other provisions of the Indenture.
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to Holders of Notes) and to transmit this notice to the participants of DTC holding positions in the Notes pursuant to DTC’s rules and procedures.
| 10 | Note: Describe the Write-Up Amount, and insert the Current Principal Amount per $1,000 in Original Principal Amount of the Notes. |
E-2
Should DTC, the Trustee or any Holders or beneficial owners of the Notes have any inquiries, please contact:
[Company Contact Person]
[Telephone]
[Fax]
[Email]
| * | The CUSIP number and ISIN appearing in this notice have been assigned to the Notes by organizations not affiliated with the Company and is included solely for the convenience of the Holders of the Notes. The Company will not be responsible for the selection or use of this CUSIP number or ISIN, nor is any representation made as to the correctness or accuracy of the same on the Notes or as indicated in this notice. The Write-Up of the Notes will not be affected by any defect in or omission of such numbers. |
Dated:
| By: | ||
| Name: | ||
| Title: | ||
E-3
Exhibits 5.1 and 23.2
October 4, 2024
Mizuho Financial Group, Inc.
1-5-5, Otemachi,
Chiyoda-ku, Tokyo 100-8176,
Japan
MIZUHO FINANCIAL GROUP, INC.
Registration Statement on Form F-3
Ladies and Gentlemen:
In connection with the registration statement (the “Registration Statement”) on Form F-3 dated the date hereof relating to debt securities (the “Debt Securities”) of Mizuho Financial Group, Inc. (the “Issuer”), we have acted as Japanese legal counsel to the Issuer and have been requested to provide our opinion to be filed as an exhibit to the Registration Statement.
For the purposes of giving this opinion, we have reviewed certified copies of the Articles of Incorporation, the Regulations of the Board of Directors, the Approval and Authorization Rules and the Regulations of the Executive Management Committee of the Issuer, and such agreements and other certificates and corporate and other records and documents of the Issuer and such other matters, documents and records, and considered such questions of the laws of Japan, as we have deemed necessary or appropriate for the purpose of rendering the opinion hereinafter set forth.
Having examined the above documents and having regard to the laws of Japan which we deem relevant, and subject to the assumptions, qualifications and limitations specified herein, we are of the opinion that:
The Debt Securities, upon the due authorization by all necessary corporate actions of the Issuer and the due execution of all necessary agreements by the respective parties, and when payment for the Debt Securities has been duly made in full, and the certificates for the Debt Securities have been duly signed by the Issuer, duly authenticated and delivered, and other necessary procedures have been completed, each in accordance with and in the manner contemplated in all related agreements, Japanese law and the Articles of Incorporation, the Regulations of the Board of Directors, the Approval and Authorization Rules and the Regulations of the Executive Management Committee of the Issuer, and assuming that the Debt Securities will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms under their governing law, to which they are subject and as to which we render no opinion, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms.
We have assumed, for the purpose of rendering this opinion, that (i) all signatures or seal impressions on any documents we reviewed are true and genuine; (ii) all documents submitted to us as originals are authentic and complete; (iii) all documents submitted to us as copies are complete and conform to the originals thereof that are authentic and complete; (iv) all documents submitted to us as forms are, or will be, executed in such forms; (v) statements included, expressly or impliedly, in the documents, record and certificate of the Issuer or public officials are true and conform to the relevant facts thereof; (vi) all natural person-signatories who have executed or delivered the relevant documents on behalf of the relevant parties thereto have and had at the relevant times the sufficient and competent legal capacity to take such actions; (vii) nothing in the applicable law of any jurisdiction other than Japan would conflict with, or preclude the performance, legality, validity, effectiveness or enforcement of any of the Debt Securities and other relevant documents; and (viii) the Debt Securities and other relevant documents are legal, valid and binding on the parties thereto and enforceable in accordance with their respective terms under their respective governing laws (other than the laws of Japan). We have not independently verified any of the matters referred to in (i) through (viii) above.
The foregoing opinion is based on the assumptions, qualified by and subject to the limitations, set forth below:
| (i) | This opinion letter is strictly limited to the matters stated herein and may not be read as extending by implication to any other matters or documents not specifically referred to herein; |
| (ii) | We are members of the bar of Japan and our opinion is limited solely to the laws of Japan in force and as interpreted as at the date hereof. In giving the opinion set forth above, we have relied, as to matters governed by the laws of the State of New York or the federal laws of the United States of America, upon the legal opinion of Simpson Thacher & Bartlett LLP, United States counsel to the Issuer dated the date hereof; |
| (iii) | We neither express nor imply any view or opinion with regard to the requirements of any state or country other than Japan; |
| (iv) | We express no opinion as to the availability of specific performance, injunctive relief or any other similar remedy, and nothing in this opinion is to be taken as indicating that the remedy of, or any order for, specific performance or injunctive relief will be available. For the purpose of this opinion, an obligation is “enforceable” against an obligor thereof even if the obligee of such obligation is entitled to make a claim only for damages against such obligor, but not necessarily for a grant of specific performance or other equitable remedies; |
| (v) | The opinion expressed above is subject to applicable bankruptcy, civil rehabilitation, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights of creditors generally; |
| (vi) | The opinion expressed above is subject to any applicable statutes of limitation, lapse of time, appropriate court procedures, the public order or policy, good morals doctrine, the good faith and fair dealing doctrine and the abuse of rights doctrine; |
| (vii) | The opinion expressed above does not cover any matters related to tax laws, treaties, regulations or guidelines; |
| (viii) | Certain terms used in documents referred to above or in any other document examined in connection with this opinion letter, and certain concepts expressed therein (i) may not have equivalents in the Japanese language or under Japanese legal principles, or (ii) may have a different meaning in legal practice under the governing law thereof from those understood by Japanese counsel, including ourselves, based upon the plain-English meaning of such terms or concepts, as the case may be; |
| (ix) | In this opinion herein, Japanese legal concepts are expressed in English terms and not in their original Japanese terms. The concepts concerned may not be identical to the concepts described by the equivalent English terms as they exist under the laws of other jurisdictions. We do not render any opinion as to how judges qualified in a foreign jurisdiction would interpret Japanese legal concepts or expressions, and this opinion may only be relied upon under the express condition that any issues of interpretation or liability arising thereunder will be governed by the laws of Japan and be brought before a Japanese court; |
| (x) | We express no opinion as to any amendments, supplements, renewals, extensions or other modification of any documents referred to herein which may be made after the delivery of this opinion; and |
| (xi) | The opinion expressed above relating to the legality, validity, effectiveness or enforceability of the obligations under any documents governed by any laws other than the laws of Japan shall mean that the laws of Japan will permit the application of the relevant governing law other than the laws of Japan to the legality, validity, effectiveness or enforceability of the obligations under such documents. |
-2-
We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the use of our name under the captions “Legal Matters” and “Enforcement of Civil Liabilities” contained in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required by the U.S. Securities Act of 1933, as amended, or by the rules and regulations under it.
| Very truly yours, |
| /s/ NAGASHIMA OHNO & TSUNEMATSU |
(MKK)
-3-
Exhibits 5.2 and 23.3
October 4, 2024
Mizuho Financial Group, Inc.
1-5-5 Otemachi, Chiyoda-ku
Tokyo 100-8176, Japan
Ladies and Gentlemen:
We have acted as United States counsel to Mizuho Financial Group, Inc., a joint stock corporation incorporated with limited liability under the law of Japan (the “Company”), in connection with the Registration Statement on Form F-3 (the “Registration Statement”) filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended, relating to debt securities, which may be either senior (the “Senior Debt Securities”), dated subordinated (the “Dated Subordinated Debt Securities”), or perpetual subordinated (the “Perpetual Subordinated Debt Securities” and, together with the Senior Debt Securities and the Dated Subordinated Debt Securities, the “Securities”). The Securities may be issued and sold or delivered from time to time for an indeterminate aggregate initial offering price.
The Senior Debt Securities will be issued under a Senior Indenture (the “Senior Indenture”), dated as of September 13, 2016, between the Company and The Bank of New York Mellon, as trustee (the “Trustee”), the Dated Subordinated Debt Securities will be issued under a Dated Subordinated Indenture (the “Dated Subordinated Indenture”), dated as of September 13, 2021, between the Company and the Trustee, and the Perpetual Subordinated Debt Securities will be issued under a Perpetual Subordinated Indenture (the “Perpetual Subordinated Indenture” and, together with the Senior Indenture and the Dated Subordinated Indenture, the “Indentures”) to be entered into between the Company and the Trustee.
We have examined the Registration Statement, the Senior Indenture, the Dated Subordinated Indenture and the form of the Perpetual Subordinated Indenture, each of which is an exhibit to the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and have made such other investigations as we have deemed relevant and necessary in connection with the opinion hereinafter set forth.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that, at the time of execution, authentication, issuance and delivery of any of the Securities, the applicable Indenture will be the valid and legally binding obligation of each party thereto other than the Company.
In rendering the opinion set forth below, we have assumed further that, at the time of execution, authentication, issuance and delivery, as applicable, of the Perpetual Subordinated Indenture and Perpetual Subordinated Debt Securities, (1) the Company will be validly existing and in good standing under the law of Japan and such Perpetual Subordinated Indenture will have been duly authorized, executed and delivered by the Company in accordance with its organizational documents and the law of Japan, (2) the execution, delivery, issuance and performance, as applicable, by the Company of such Perpetual Subordinated Indenture and such Perpetual Subordinated Debt Securities will not constitute a breach or violation of its organizational documents or violate the law of Japan or any other jurisdiction (except that no such assumption is made with respect to the law of the State of New York, assuming there shall not have been any change in such law affecting the validity or enforceability of such Perpetual Subordinated Indenture and such Perpetual Subordinated Debt Securities) and (3) the execution, delivery, issuance and performance, as applicable, by the Company of such Perpetual
Subordinated Indenture and such Perpetual Subordinated Debt Securities (a) will not constitute a breach or default under any agreement or instrument which is binding upon the Company and (b) will comply with all applicable regulatory requirements.
In rendering the opinion set forth below, we have assumed further that (1) the Company is validly existing and in good standing under the law of Japan and has duly authorized, executed and delivered the Senior Indenture and the Dated Subordinated Indenture in accordance with its organizational documents and the law of Japan, (2) the execution, delivery and performance by the Company of such Senior Indenture and Dated Subordinated Indenture do not constitute a breach or violation of its organizational documents or violate the law of Japan or any other jurisdiction (except that no such assumption is made with respect to the law of the State of New York) and (3) the execution, delivery and performance by the Company of such Senior Indenture and Dated Subordinated Indenture (a) do not constitute a breach or default under any agreement or instrument which is binding upon the Company and (b) comply with all applicable regulatory requirements.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that, assuming (a) the taking of all necessary corporate action by the Board of Directors of the Company, a duly constituted and acting committee of such Board of Directors or duly authorized officers of the Company (such Board of Directors, committee or authorized officers being referred to herein as the “Company Authorizing Party”) to authorize and approve the issuance and terms of any Securities and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company, and (b) the due execution, authentication, issuance and delivery of the Securities, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Company Authorizing Party and otherwise in accordance with the provisions of such agreement and the applicable Indenture, such Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights.
In connection with the provisions of the Indentures whereby the parties submit to the jurisdiction of U.S. federal courts located in the Borough of Manhattan, The City of New York, we note the limitations of 28 U.S.C. Sections 1331 and 1332 on subject matter jurisdiction of the federal courts. In connection with the provisions of the Indentures that relate to forum selection (including, without limitation, any waiver of any objection to venue or any objection that a court is an inconvenient forum), we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial, and under 28 U.S.C. Section 1404(a) a United States District Court has discretion to transfer an action from one U.S. federal court to another.
In rendering the opinion set forth above, we have assumed that under the law of any jurisdiction in whose currency (or whose currency is a component currency of a composite currency in which) any Securities are denominated or payable, if other than in U.S. dollars, (A) no consent, approval, authorization, qualification or order of, or filing or registration with, any governmental agency or body or court of such jurisdiction is required for the issuance or sale of the Securities by the Company and (B) the issuance or sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms or provisions of any statute, rule, regulation or order of any governmental agency or body or any court of such jurisdiction.
We note that (i) a New York State statute provides that, with respect to a foreign currency obligation, a New York State court shall render a judgment or decree in such foreign currency and such judgment or decree shall be converted into currency of the United States at the rate of exchange prevailing on the date of entry of such
-2-
judgment or decree and (ii) with respect to a foreign currency obligation, a U.S. federal court sitting in New York State may award a judgment based in whole or in part in U.S. dollars, provided that we express no opinion as to the rate of exchange that such court would apply.
We do not express any opinion herein concerning any law other than the law of the State of New York and the federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit 5.2 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.
| Very truly yours, | ||
| /s/ Simpson Thacher & Bartlett LLP | ||
| SIMPSON THACHER & BARTLETT LLP | ||
-3-
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form F-3) and related prospectus of Mizuho Financial Group, Inc. (the “Company”) for the registration of senior debt securities, dated subordinated debt securities and perpetual subordinated debt securities and to the incorporation by reference therein of our reports dated June 26, 2024, with respect to the consolidated financial statements of the Company and subsidiaries, and the effectiveness of internal control over financial reporting of the Company and subsidiaries, included in its Annual Report (Form 20-F) for the year ended March 31, 2024, filed with the Securities and Exchange Commission.
/s/ Ernst & Young ShinNihon LLC
Tokyo, Japan
October 4, 2024
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-5160382 | |
| (Jurisdiction of incorporation of organization if not a U.S. national bank) |
(I.R.S. Employer Identification Number) | |
| 240 GREENWICH STREET, NEW YORK, N.Y. | 10286 | |
| (Address of principal executive offices) | (Zip Code) | |
Kabushiki Kaisha Mizuho Financial Group
(Exact name of obligor as specified in its charter)
Mizuho Financial Group, Inc.
(Translation of registrant’s name into English)
| JAPAN | 98-1028207 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) | |
| 1-5-5 Otemachi, Chiyoda-ku, Tokyo, Japan | 100-8176 | |
| (Address of principal executive offices) | (Zip Code) | |
Mizuho Bank, Ltd.
1271 Avenue of the Americas
New York, NY 10020
(212) 282-3000
(Name, address and telephone number of agent for service)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the trustee—
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Superintendent of Banks of the State of New York
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223
Federal Reserve Bank of New York
33 Liberty Street, New York, N.Y. 10045
Federal Deposit Insurance Corporation
550 17th Street NW, Washington, D.C. 20429
New York Clearing House Association
100 Broad Street, New York, N.Y. 10004
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | Affiliations with the obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None
| Item 16. | List of exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers (Exhibit 1 to Amendment No. 1 to Form TA filed with Registration Statement No. 33-6215, Exhibits la and lb to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-207042). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the city of Singapore, on the 4th day of October, 2024.
| The Bank of New York Mellon | ||
| By: | /s/ Larissa G. Lambino | |
| Name: | Larissa G. Lambino | |
| Title: | Vice President | |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2024, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | |||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
4,447,000 | |||
| Interest-bearing balances |
124,648,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
46,429,000 | |||
| Available-for-sale debt securities |
90,238,000 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
14,252,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases held for investment |
36,567,000 | |||
| LESS: Allowance for credit losses on loans and leases |
266,000 | |||
| Loans and leases held for investment, net of allowance |
36,301,000 | |||
| Trading assets |
5,138,000 | |||
| Premises and fixed assets (including right-of-use assets) |
2,859,000 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
1,426,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
6,894,000 | |||
| Other assets |
19,174,000 | |||
|
|
|
|||
| Total assets |
351,806,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
202,091,000 | |||
| Noninterest-bearing |
56,250,000 | |||
| Interest-bearing |
145,841,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
103,656,000 | |||
| Noninterest-bearing |
4,979,000 | |||
| Interest-bearing |
98,677,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
3,971,000 | |||
| Trading liabilities |
1,864,000 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
3,843,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
8,819,000 | |||
|
|
|
|||
| Total liabilities |
324,244,000 | |||
|
|
|
|||
| Dollar amounts in thousands | ||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
12,377,000 | |||
| Retained earnings |
17,418,000 | |||
| Accumulated other comprehensive income |
-3,368,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
27,562,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
27,562,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
351,806,000 | |||
|
|
|
|||
I, Dermot McDonogh, Chief Financial Officer of the above-named bank, do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief, has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince Jeffrey A. Goldstein Joseph J. Echevarria
|
Directors
|
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-5160382 | |
| (Jurisdiction of incorporation of organization if not a U.S. national bank) |
(I.R.S. Employer Identification Number) | |
| 240 GREENWICH STREET, NEW YORK, N.Y. | 10286 | |
| (Address of principal executive offices) | (Zip Code) | |
Kabushiki Kaisha Mizuho Financial Group
(Exact name of obligor as specified in its charter)
Mizuho Financial Group, Inc.
(Translation of registrant’s name into English)
| JAPAN | 98-1028207 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) | |
| 1-5-5 Otemachi, Chiyoda-ku, Tokyo, Japan | 100-8176 | |
| (Address of principal executive offices) | (Zip Code) | |
Mizuho Bank, Ltd.
1271 Avenue of the Americas
New York, NY 10020
(212) 282-3000
(Name, address and telephone number of agent for service)
DATED SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the trustee—
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Superintendent of Banks of the State of New York
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223
Federal Reserve Bank of New York
33 Liberty Street, New York, N.Y. 10045
Federal Deposit Insurance Corporation
550 17th Street NW, Washington, D.C. 20429
New York Clearing House Association
100 Broad Street, New York, N.Y. 10004
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | Affiliations with the obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None
| Item 16. | List of exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers (Exhibit 1 to Amendment No. 1 to Form TA filed with Registration Statement No. 33-6215, Exhibits la and lb to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-207042). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the city of Singapore, on the 4th day of October, 2024.
| The Bank of New York Mellon | ||
| By: | /s/ Larissa G. Lambino | |
| Name: | Larissa G. Lambino | |
| Title: | Vice President | |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2024, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | |||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
4,447,000 | |||
| Interest-bearing balances |
124,648,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
46,429,000 | |||
| Available-for-sale debt securities |
90,238,000 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
14,252,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases held for investment |
36,567,000 | |||
| LESS: Allowance for credit losses on loans and leases |
266,000 | |||
| Loans and leases held for investment, net of allowance |
36,301,000 | |||
| Trading assets |
5,138,000 | |||
| Premises and fixed assets (including right-of-use assets) |
2,859,000 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
1,426,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
6,894,000 | |||
| Other assets |
19,174,000 | |||
|
|
|
|||
| Total assets |
351,806,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
202,091,000 | |||
| Noninterest-bearing |
56,250,000 | |||
| Interest-bearing |
145,841,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
103,656,000 | |||
| Noninterest-bearing |
4,979,000 | |||
| Interest-bearing |
98,677,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
3,971,000 | |||
| Trading liabilities |
1,864,000 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
3,843,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
8,819,000 | |||
|
|
|
|||
| Total liabilities |
324,244,000 | |||
|
|
|
|||
| Dollar amounts in thousands | ||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
12,377,000 | |||
| Retained earnings |
17,418,000 | |||
| Accumulated other comprehensive income |
-3,368,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
27,562,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
27,562,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
351,806,000 | |||
|
|
|
|||
I, Dermot McDonogh, Chief Financial Officer of the above-named bank, do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief, has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince Jeffrey A. Goldstein Joseph J. Echevarria
|
Directors
|
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-5160382 | |
| (Jurisdiction of incorporation of organization if not a U.S. national bank) |
(I.R.S. Employer Identification Number) | |
| 240 GREENWICH STREET, NEW YORK, N.Y. | 10286 | |
| (Address of principal executive offices) | (Zip Code) | |
Kabushiki Kaisha Mizuho Financial Group
(Exact name of obligor as specified in its charter)
Mizuho Financial Group, Inc.
(Translation of registrant’s name into English)
| JAPAN | 98-1028207 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) | |
| 1-5-5 Otemachi, Chiyoda-ku, Tokyo, Japan | 100-8176 | |
| (Address of principal executive offices) | (Zip Code) | |
Mizuho Bank, Ltd.
1271 Avenue of the Americas
New York, NY 10020
(212) 282-3000
(Name, address and telephone number of agent for service)
PERPETUAL SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the trustee—
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Superintendent of Banks of the State of New York
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223
Federal Reserve Bank of New York
33 Liberty Street, New York, N.Y. 10045
Federal Deposit Insurance Corporation
550 17th Street NW, Washington, D.C. 20429
New York Clearing House Association
100 Broad Street, New York, N.Y. 10004
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | Affiliations with the obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None
| Item 16. | List of exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers (Exhibit 1 to Amendment No. 1 to Form TA filed with Registration Statement No. 33-6215, Exhibits la and lb to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-207042). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the city of Singapore, on the 4th day of October, 2024.
| The Bank of New York Mellon | ||
| By: | /s/ Larissa G. Lambino | |
| Name: | Larissa G. Lambino | |
| Title: | Vice President | |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2024, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | |||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
4,447,000 | |||
| Interest-bearing balances |
124,648,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
46,429,000 | |||
| Available-for-sale debt securities |
90,238,000 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
14,252,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases held for investment |
36,567,000 | |||
| LESS: Allowance for credit losses on loans and leases |
266,000 | |||
| Loans and leases held for investment, net of allowance |
36,301,000 | |||
| Trading assets |
5,138,000 | |||
| Premises and fixed assets (including right-of-use assets) |
2,859,000 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
1,426,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
6,894,000 | |||
| Other assets |
19,174,000 | |||
|
|
|
|||
| Total assets |
351,806,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
202,091,000 | |||
| Noninterest-bearing |
56,250,000 | |||
| Interest-bearing |
145,841,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
103,656,000 | |||
| Noninterest-bearing |
4,979,000 | |||
| Interest-bearing |
98,677,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
3,971,000 | |||
| Trading liabilities |
1,864,000 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
3,843,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
8,819,000 | |||
|
|
|
|||
| Total liabilities |
324,244,000 | |||
|
|
|
|||
| Dollar amounts in thousands | ||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
12,377,000 | |||
| Retained earnings |
17,418,000 | |||
| Accumulated other comprehensive income |
-3,368,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
27,562,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
27,562,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
351,806,000 | |||
|
|
|
|||
I, Dermot McDonogh, Chief Financial Officer of the above-named bank, do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief, has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince
|
Directors
|