Mizuho Financial Group Inc F-3ASR, filed Aug 5, 2022
Mizuho Financial Group Inc (MFG)
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As filed with the Securities and Exchange Commission on August 5, 2022
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.
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PROSPECTUS
Mizuho Financial Group, Inc.
(incorporated in Japan)
Senior Debt Securities
Subordinated Debt Securities
We may offer, from time to time, in one or more offerings, senior debt securities or subordinated debt securities, which we collectively refer to as the “debt securities.”
We may offer and sell any combination of the 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 the 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 this prospectus. Before you invest in any of the debt securities, you should read this prospectus and any applicable prospectus supplement, 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.”
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.
The date of this prospectus is August 5, 2022.
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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 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 this prospectus. The prospectus supplement will supersede this prospectus to the extent it contains information that is different from, or conflicts with, the information contained in 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 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 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 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 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. 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.
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 the accompanying prospectus.
Financial information for us contained or incorporated by reference herein or in any 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.
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In this prospectus and any prospectus supplement, references to “U.S. dollars,” “dollars” and “$” refer to the lawful currency of the United States and those to “yen” and “¥” refer to the lawful currency of Japan. This prospectus or any 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 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, except for figures based on managerial accounting, which are rounded, and, in each case, unless otherwise specified. However, in some cases, figures 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.
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 updates to those risk factors in our reports on Form 6-K incorporated herein and in the applicable prospectus supplement, together with all of the other information appearing or incorporated by reference in this prospectus and any applicable prospectus supplement and 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, 2022 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, 2022(4) | ||||
| (in millions of yen) | ||||
| Indebtedness: |
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| Short-term borrowings |
¥ | 30,665,378 | ||
| Long-term debt(1)(2)(3) |
12,578,216 | |||
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| Total indebtedness |
¥ | 43,243,594 | ||
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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 |
5,816,834 | |||
| Retained earnings |
2,665,608 | |||
| Accumulated other comprehensive income, net of tax |
440,112 | |||
| Less: Treasury stock, at cost—Common stock 4,659,024 shares |
(8,342 | ) | ||
| Total MHFG shareholders’ equity |
8,914,212 | |||
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| Noncontrolling interests |
528,019 | |||
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| Total equity |
¥ | 9,442,231 | ||
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| Total capitalization and indebtedness |
¥ | 52,685,825 | ||
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Notes:
| (1) | We regularly issue senior and subordinated notes. We issued an aggregate of €1.5 billion of EUR denominated senior notes in April 2022. |
| (2) | We redeemed ¥79.0 billion of yen denominated unsecured fixed-term subordinated notes in June 2022, an aggregate of U.S.$1.5 billion of U.S. Dollar denominated senior notes in July 2022 and U.S.$1.5 billion of U.S. Dollar denominated unsecured fixed-term subordinated notes issued by our overseas special purpose company in July 2022. |
| (3) | Mizuho Bank redeemed ¥47.0 billion of yen denominated unsecured fixed-term subordinated notes in June 2022. |
| (4) | The following foreign currency exchange rate is used in the table above: ¥121.44 = 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 and subordinated debt securities (collectively, the “debt securities”) that we may offer under this prospectus. The specific terms and provisions of a particular series of 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 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 free writing prospectus, those in the applicable prospectus supplement or free writing prospectus will apply.
Because this section is a summary, it does not describe every aspect of the debt securities. It is qualified in its entirety by the provisions of the senior and subordinated indentures (as described below) and the senior and subordinated debt securities, forms of which will 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. We may issue 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 subordinated trustee, dated as of September 13, 2021, as amended or supplemented from time to time, or, if applicable, under a new subordinated indenture to be entered into between us and the subordinated trustee. Subordinated debt securities may be issued with or without a fixed maturity date. The senior indenture and the subordinated indenture are sometimes referred to in this prospectus collectively as the “indentures” and each, individually, as an “indenture,” and the senior trustee and the subordinated trustee are sometimes referred to in this prospectus as the “trustee.” The terms “senior indenture,” “subordinated indenture” and “indenture” as used herein may, depending on the context, refer to such indenture, as amended or supplemented.
The indentures provide or, if applicable, will provide that we may issue debt securities up to an aggregate principal amount as we may authorize from time to time. Neither of the indentures limits or, if applicable, will limit the amount of debt securities that we may issue thereunder, nor contains or, if applicable, 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 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 subordinated debt securities of each series will constitute direct, subordinated and unsecured obligations of Mizuho Financial Group and rank pari passu and without preference among themselves. The nature and extent of the subordinated ranking of, and the other subordination provisions applicable to, a series of subordinated debt securities will be described in the applicable prospectus supplement or free writing prospectus relating to such series of subordinated debt securities.
Terms Specified in the Applicable Prospectus Supplement or Free Writing Prospectus
The applicable prospectus supplement or 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; |
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| • | The title and type of the debt securities; |
| • | The ranking of the debt securities, including subordination terms for 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, if any, of the debt securities 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 will be payable or the manner of determination of such interest payment dates and the related record dates, and the basis upon which interest will be calculated; |
| • | If the amount of principal or any premium or interest on the debt securities may be determined with reference to an index or pursuant to a formula, 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 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; |
| • | Any other or different events of default, modification or elimination of any acceleration rights or covenants with respect to the debt securities of the series, if different from the provisions 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 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 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; |
| • | The circumstances under which the holders of the debt securities may demand repayment of the debt securities prior to the stated maturity date 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; |
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| • | 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; |
| • | 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 |
| • | 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 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 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 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 |
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| 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; |
| (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
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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.
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, 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 |
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| 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 |
| (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.
Subordinated Debt Securities
Events of acceleration applicable to a series of subordinated debt securities will be described in an applicable prospectus supplement or free writing prospectus and set forth in the subordinated indenture relating to such series of subordinated debt securities.
Annulment of Acceleration and Waiver of Defaults
In the case of senior debt securities, in some circumstances, if any or all of the events leading to acceleration under the senior indenture, other than the non-payment of the principal of the senior debt securities that has become due as a result of an acceleration, have been cured, waived or otherwise remedied, then the holders of a majority in aggregate principal amount of a series of senior debt securities may (if certain conditions are satisfied) annul past declarations of acceleration or waive past defaults of such series of senior debt securities.
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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 free writing prospectus and set forth in the subordinated indenture (in the case of 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; 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, if applicable, 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, if applicable, 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, 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.
Limitation on Suits by Individual Securityholders
The indentures provide that no individual holder of debt securities may institute any action against Mizuho Financial Group under the relevant indenture, except actions for payment of overdue principal and interest, unless the following actions have occurred:
| (i) | (in the case of senior debt securities) a holder must have previously given written notice to the trustee of the continuing default; |
| (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 |
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| (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 on or after the respective due dates shall not be affected or impaired; provided that, in the case of subordinated debt securities, notwithstanding the foregoing, the rights of holders of subordinated debt securities specified above are subject to the limitations and suspension of rights triggered by an event triggering any write-down. For the avoidance of doubt, nothing shall be construed to impair the effectiveness of the provisions of subordination and write-down set forth in the subordinated indenture or related provisions of the subordinated debt securities.
Covenants
Consolidation, Merger, Sale or Conveyance. The indentures contain or, if applicable, 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, and no event of acceleration, in the case of the 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.
Evidence of Mizuho Financial Group’s Compliance. There are or, if applicable, 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 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.
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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.
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 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 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; or |
| (iii) | in the case of subordinated debt securities, all securities of a series outstanding under the subordinated indenture shall have been cancelled in connection with a write-down pursuant to write-down provisions set forth in the subordinated indenture. |
Modification of the Indenture
In the case of 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 with respect to the relevant series of subordinated debt securities) shall be made to the subordination provision contained in the relevant subordinated indenture. No such amendment shall in any event be effective against such creditor.
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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; or |
| (vii) | in the case of 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 particular series of 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. |
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, 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, 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 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 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 debt securities on or after the respective due dates expressed in such 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 subordinated debt securities, modify or amend any provisions relating to the agreement to subordinate and terms of subordination of the subordinated debt securities of any particular series pursuant to the subordinated indenture. |
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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”).
The indentures provide or, if applicable, 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) or an event of acceleration with respect to a series of subordinated debt securities (in the case of the 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 or event of acceleration, 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, if applicable, 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 under the senior indenture while also serving as trustee under the 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, if applicable, 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, if applicable, 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, if applicable, 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
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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.
New York Law to Govern
The indentures and the debt securities are or, if applicable, 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 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 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 The Depository Trust Company (“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
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“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”).
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
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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 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
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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.
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
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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 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 subordinated debt securities may describe procedures for any write-down, write-up, bail-in or other provisions applicable to such subordinated debt securities.
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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.
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, if applicable, 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 U.S. Internal Revenue Code of 1986, as amended (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
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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.
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
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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.
Market-Making Transactions by Affiliates
Mizuho Securities USA LLC or our other affiliates may use this prospectus and the 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, 2022, and the effectiveness of the internal control over financial reporting of Mizuho Financial Group, Inc. as of March 31, 2022, 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
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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.
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, 2022, filed on July 1, 2022 (File Number 001-33098); |
| • | our current report on Form 6-K, dated July 14, 2022, concerning a change of executive officer; and |
| • | our current report on Form 6-K, dated July 29, 2022, containing our financial condition and results of operations, presented under Japanese GAAP, as of and for the three months ended June 30, 2022. |
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
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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.
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.
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| 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. |
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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 August 5, 2022.
| MIZUHO FINANCIAL GROUP, INC. | ||
| By: | /s/ Masahiro Kihara | |
| Name: | Masahiro Kihara | |
| Title: | President & Group CEO | |
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature to this registration statement appears below hereby constitutes and appoints Kenya Koshimizu, Makoto Umemiya, Akifumi Kohashi, Nobuhiro Ishikure, Hiroyuki Masuda and Hideki Takagi 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; (principal executive officer) |
August 5, 2022 | ||
| /s/ Makoto Umemiya Makoto Umemiya |
Member of the Board of Directors; Deputy President & Senior Executive Officer (Representative Executive Officer); Head of Financial Control & Accounting Group / Group CFO; (principal financial officer and principal accounting officer) |
August 5, 2022 | ||
| /s/ Motonori Wakabayashi Motonori Wakabayashi |
Member of the Board of Directors; |
August 5, 2022 | ||
| /s/ Nobuhiro Kaminoyama Nobuhiro Kaminoyama |
Member of the Board of Directors; |
August 5, 2022 | ||
| /s/ Seiji Imai Seiji Imai |
Member of the Board of Directors; |
August 5, 2022 | ||
| /s/ Hisaaki Hirama Hisaaki Hirama |
Member of the Board of Directors |
August 5, 2022 | ||
| /s/ Izumi Kobayashi Izumi Kobayashi |
Member of the Board of Directors |
August 5, 2022 | ||
Table of Contents
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
| By: | /s/ Susumu Koyama | |
| Name: | Susumu Koyama | |
| 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 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][a subordinated indenture dated September 13, 2021] (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 Cede & Co., as nominee of The Depository Trust Company (“DTC”), pursuant to a letter agreement, dated before the Closing Time (as defined in Section 2(c) below), between the Issuer and DTC.
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
1
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.] (New York City time), 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
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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 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
3
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 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 |
Ernst & Young ShinNihon LLC (“Ernst & Young”) 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 |
4
| 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.] |
| (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 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 audited or reviewed by Ernst & Young, 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 Ernst & Young 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. |
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| (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. |
| (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
6
“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” (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 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
7
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.
| (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,
8
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.
| (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
9
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 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, and notices or reports by the Issuer to, 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
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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 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.
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| (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 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
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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.
| (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
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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, Her 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 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 and dated subordinated obligations of the Issuer; and no event has occurred or circumstance
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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) 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 of the Issuer under the applicable standards set forth in the applicable banking regulations, including, without limitation, 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.]
| (xl) | [Listing of the Notes |
The Issuer has obtained [approval in-principle] for the Notes to be listed on [name of the relevant securities exchange] (the “Relevant Exchange”) and such [approval in-principle] has not been revoked.]
| (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 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 a 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
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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 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.
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| (c) | Payment |
Payment for, and delivery of certificates for, the Notes shall be made at [ ] [a.m./p.m.] (New York City time) on the [ ]th New York 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 New York 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”). “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 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 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 DTC 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 DTC to credit the Notes to the accounts designated by DTC.
| (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 New York Business Days before the Closing Time. The certificates representing the Notes shall be made available for examination and packaging by the Underwriters in The City of New York on the last New York 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.
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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 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);
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(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 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
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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 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 [Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services LLC (“S&P”),] 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) | DTC |
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 DTC.
| (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.
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| (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 U.S. dollar-denominated [senior/subordinated] debt securities of the Issuer.
| (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.
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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 DTC 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 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 DTC, (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
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(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 (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 Ernst & Young, 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.
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| (g) | Bring-down Comfort Letters |
At or before the Closing Time, the Representatives shall have received from Ernst & Young, 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 Moody’s and “ ” by S&P], 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.
| (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 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.
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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 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
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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 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,
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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 defence 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 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
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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 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.
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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 or the SGX-ST 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 (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 |
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| 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 Division.
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 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.
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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 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. |
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| (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 the 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.
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.
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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). |
“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 NEW YORK 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.
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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.
[Signature page to follow]
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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: |
|
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| Name: | ||||
| Title: | ||||
[Underwriting Agreement Signature Page]
| CONFIRMED AND ACCEPTED, as of the date first above written: |
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| [Name of Representative] | ||||
| By: |
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| Authorized Signatory | ||||
| [[Name of Representative] | ||||
| By: |
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| 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] |
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| [Insert name(s) of Underwriter(s)] |
$[ ] | |||
| [ ] | ||||
|
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|
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| Total |
$[ ] | |||
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[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:
Interest Rate:
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 Payment Dates:
Day Count:
Ranking:
Trade Date:
Settlement Date:
Business Days:
Minimum Denomination:
Listing:
Billing and Delivering:
Joint Lead Managers and Joint Bookrunners:
Co-Managers:
CUSIP:
ISIN:
*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 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]
Exhibits 5.1 and 23.2
August 5, 2022
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 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 of 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; |
| (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 the 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 concept 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 | ||
(IO/MKK)
-3-
Exhibits 5.2 and 23.3
August 5, 2022
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”) or subordinated (the “Subordinated Debt Securities” and, together with the Senior 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”), and the Subordinated Debt Securities will be issued under a Subordinated Indenture (the “Subordinated Indenture” and, together with the Senior Indenture, the “Indentures”), dated as of September 13, 2021, between the Company and the Trustee.
We have examined the Registration Statement and the Indentures, 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 (1) the Company is validly existing and in good standing under the law of Japan and has duly authorized, executed and delivered the Indentures in accordance with its organizational documents and the law of Japan, (2) the execution, delivery and performance by the Company of the Indentures 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 the Indentures (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 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 | ||
-2-
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. and subsidiaries (the “Company”) for the registration of senior debt securities and subordinated debt securities and to the incorporation by reference therein of our reports dated July 1, 2022, with respect to the consolidated financial statements of the Company, and the effectiveness of internal control over financial reporting of the Company, included in its Annual Report (Form 20-F) for the year ended March 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young ShinNihon LLC
Tokyo, Japan
August 5, 2022
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 5th day of August, 2022.
| 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 March 31, 2022, 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 |
5,268,000 | |||
| Interest-bearing balances |
144,306,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
60,600,000 | |||
| Available-for-sale debt securities |
92,185,000 | |||
| Equity securities with readily determinable fair values not held for trading |
2,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
8,296,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases held for investment |
31,648,000 | |||
| LESS: Allowance for loan and lease losses |
153,000 | |||
| Loans and leases held for investment, net of allowance |
31,495,000 | |||
| Trading assets |
10,454,000 | |||
| Premises and fixed assets (including capitalized leases) |
2,877,000 | |||
| Other real estate owned |
1,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
1,475,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
7,041,000 | |||
| Other assets |
16,465,000 | |||
|
|
|
|||
| Total assets |
380,465,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
218,035,000 | |||
| Noninterest-bearing |
97,334,000 | |||
| Interest-bearing |
120,701,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,324,000 | |||
| Noninterest-bearing |
6,368,000 | |||
| Interest-bearing |
112,956,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices . |
0 | |||
| Securities sold under agreements to repurchase |
4,308,000 | |||
| Trading liabilities |
3,065,000 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
294,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
8,611,000 | |||
|
|
|
|||
| Total liabilities |
353,637,000 | |||
|
|
|
|||
| 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) |
11,840,000 | |||
| Retained earnings |
16,363,000 | |||
| Accumulated other comprehensive income |
-2,510,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
26,828,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
26,828,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
380,465,000 | |||
|
|
|
|||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons Frederick O. Terrell 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)
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 5th day of August, 2022.
| 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 March 31, 2022, 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 |
5,268,000 | |||
| Interest-bearing balances |
144,306,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
60,600,000 | |||
| Available-for-sale debt securities |
92,185,000 | |||
| Equity securities with readily determinable fair values not held for trading |
2,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
8,296,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases held for investment |
31,648,000 | |||
| LESS: Allowance for loan and lease losses |
153,000 | |||
| Loans and leases held for investment, net of allowance |
31,495,000 | |||
| Trading assets |
10,454,000 | |||
| Premises and fixed assets (including capitalized leases) |
2,877,000 | |||
| Other real estate owned |
1,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
1,475,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
7,041,000 | |||
| Other assets |
16,465,000 | |||
|
|
|
|||
| Total assets |
380,465,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
218,035,000 | |||
| Noninterest-bearing |
97,334,000 | |||
| Interest-bearing |
120,701,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,324,000 | |||
| Noninterest-bearing |
6,368,000 | |||
| Interest-bearing |
112,956,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices . |
0 | |||
| Securities sold under agreements to repurchase |
4,308,000 | |||
| Trading liabilities |
3,065,000 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
294,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
8,611,000 | |||
|
|
|
|||
| Total liabilities |
353,637,000 | |||
|
|
|
|||
| 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) |
11,840,000 | |||
| Retained earnings |
16,363,000 | |||
| Accumulated other comprehensive income |
-2,510,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
26,828,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
26,828,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
380,465,000 | |||
|
|
|
|||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons
|
Directors
|