Form S-8

As filed with the Securities and Exchange Commission on December 9, 2004

Registration Statement No. 333-                

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM S-8

 

 

REGISTRATION STATEMENT UNDER THE

SECURITIES ACT OF 1933

 

 

KYOCERA KABUSHIKI KAISHA

(Exact Name of Registrant as Specified in Its Charter)

 

KYOCERA CORPORATION

(Translation of Registrant’s name into English)

 

Japan   None

(State or Other Jurisdiction of

Incorporation or Organization)

  

(I.R.S. Employer

Identification No.)

 

 

6, Takeda, Tobadono-cho

Fushimi-ku

Kyoto, Japan 612-8501

(81-75-604-3500)

(Address of Principal Executive Offices)

 

 

KYOCERA MITA AMERICA, INC. SAVINGS AND

INVESTMENT PLAN

(Full Title of the Plan)

 

 

c/o Kyocera Mita America, Inc.

225 Sand Road

Fairfield, New Jersey 07004

(973) 882-6007

(Name, Address and Telephone Number of Agent for Service)

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities

to be Registered

    Amount
to be
Registered		    Proposed
Maximum
Offering Price
Per Share(3)		    Proposed
Maximum
Aggregate
Offering Price(3)		   

Amount of
Registration

Fee(3)

                     

Common Stock, (the “Shares”) (1)(2)

    30,000    $ 71.90    $ 2,157,000    $ 273.29
(1) American Depositary Receipts (each an “ADR”) evidencing American Depositary Shares (each an “ADS”) issuable on deposit of the Shares registered hereunder have been registered under a separate registration statement on Form 20-F (Registration No. 001-07952). Each ADS constitutes one Share.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Kyocera Mita America, Inc. Savings and Investment Plan. Pursuant to Rule 457(h)(2), no separate fee is required with respect to the interests.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, on the basis of the average of the high and low sales prices of each of one ADS representing one Shares reported on the New York Stock Exchange on December 6, 2004.

 

PART I

 

Item 1. PLAN INFORMATION

 

All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.

 

Item 2. REGISTRANT INFORMATION AND EMPLOYEE ANNUAL INFORMATION

 

All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act and the Note to Part I to Form S-8.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE

 

The following documents, or sections of documents, as applicable, filed by Kyocera Corporation (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference and made a part hereof:

 

(1) Registrant’s Annual Report on Form 20-F for the fiscal year ended March 31, 2004 (the “2004 Form 20-F”);

 

(2) Any report on Form 6-K submitted by the Registrant to the Commission prior to termination of this registration statement and identified by the Registrant as being incorporated by reference in this registration statement.

 

All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. In addition, any report on Form 6-K submitted by the Registrant to the Commission during such period and identified by the Registrant as being incorporated by reference in this registration statement shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of submission of such report.

 

Item 4. DESCRIPTION OF SECURITIES

 

For a description of securities, please see: (i) Kyocera Mita America, Inc. Savings and Investment Plan Summary Plan Description, (ii) Kyocera Corporation ADS and Common Stock Information for the Kyocera Mita America, Inc. Savings and Investment Plan and (iii) Kyocera Mita America, Inc. Savings and Investment Plan: Comparative Fund Information which are exhibits to this registration statement.

 

Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL

 

Not applicable.

Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Articles 254 and 280 of the Commercial Code of Japan (the “Commercial Code”) make the provisions of Section 10, Chapter 2, Book III of the Civil Code of Japan applicable to the relationship between the Registrant and its directors and corporate auditors, respectively. Section 10, among other things, provides in effect that:

 

(1) Any director or corporate auditor of the Registrant may demand advance payment of expenses which are considered necessary for the management of the affairs of the Registrant entrusted to him;

 

(2) If a director or a corporate auditor of the Registrant has defrayed any expenses which are considered necessary for the management of the affairs of the Registrant entrusted to him, he may demand reimbursement therefor and interest thereon after the date of payment from the Registrant;

 

(3) If a director or a corporate auditor has assumed an obligation necessary for the management of the affairs of the Registrant entrusted to him, he may require the Registrant to perform it in his place or, if it is not due, to furnish adequate security; and

 

(4) If a director or a corporate auditor, without any fault on his part, sustains damage through the management of the affairs of the Registrant entrusted to him, he may demand compensation therefor from the Registrant.

 

Under Article 279-2 of the Commercial Code, the Registrant may not refuse a demand from a corporate auditor referred to in subparagraphs (1) through (3) above unless the Registrant establishes that the relevant expense or obligation was or is not necessary for the performance of the corporate auditor’s duties.

 

Item 7. EXEMPTION FROM REGISTRATION CLAIMED

 

Not applicable.

 

Item 8. EXHIBITS*

 

Number
  

Description

4.1  

Articles of Incorporation of the Registrant**

4.2  

Share Handling Regulations of the Registrant**

4.3  

Specimen common stock certificate of the Registrant***

5.1  

Opinion of Tomotsune & Kimura

5.2  

ERISA Qualification Undertaking

23.1  

Consent of ChuoAoyama PricewaterhouseCoopers

24.1  

Power of Attorney (included in the signature page)

99.1  

Kyocera Mita America, Inc. Savings and Investment Plan

99.2  

Kyocera Corporation ADS and Common Stock Information for the Kyocera Mita America, Inc. Savings and Investment Plan

99.3  

Kyocera Mita America, Inc. Savings and Investment Plan: Comparative Fund Information

99.4  

Kyocera Mita America, Inc. Savings and Investment Plan Summary Description

* Exhibits required by Items 601(b)(5), 601(b)(15) and 601(b)(99) of Regulation S-K have been omitted because they are not applicable.
** Incorporated by reference to Exhibits 1.1 and 1.2, respectively, to the Registrant’s Form S-8 filed on August 31, 2004.
*** Incorporated by reference to Exhibit 2.1 to the Registrant’s annual report on Form 20-F filed on September 24, 2001.

Item 9. UNDERTAKINGS

 

(1) The undersigned Registrant hereby undertakes:

 

  (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

  (i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

  (ii) 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 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 prospectus filed with the Commission pursuant to Rule 424 (b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

 

  (iii) 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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

 

  (b) 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(2) 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

 

(3) 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 Securities and Exchange Commission 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.

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city and state of Kyoto, country of Japan, on December 9, 2004.

 

KYOCERA CORPORATION

By:

  

/s/ Yasuo Nishiguchi

Name:

   Yasuo Nishiguchi

Title:

   President and Representative Director

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the following capacities on December 9, 2004.

 

Each person whose signature appears below authorizes Masahiro Umemura as attorney-in-fact, to sign any amendment, including post-effective amendments, to this registration statement on his behalf, individually and in each capacity stated below, and to file any such amendment.

 

Signature

   

Title

 

Kazuo Inamori

   

Chairman Emeritus of the Board of Directors

/s/ Kensuke Itoh

Kensuke Itoh

   

Chairman of the Board and Representative Director

/s/ Yasuo Nishiguchi

Yasuo Nishiguchi

   

President and Representative Director

(Principal Executive Officer)

/s/ Masahiro Umemura

Masahiro Umemura

   

Executive Vice President and Representative

Director

/s/ Michihisa Yamamoto

Michihisa Yamamoto

   

Executive Vice President and Representative

Director

/s/ Yuzo Yamamura

Yuzo Yamamura

   

Director

/s/ Naoyuki Morita

Naoyuki Morita

   

Director

/s/ Koji Seki

Koji Seki

   

Director

/s/ Noboru Nakamura

Noboru Nakamura

   

Director

/s/ Isao Kishimoto

Isao Kishimoto

   

Director

/s/ Hisao Hisaki

Hisao Hisaki

   

Managing Executive Officer and Director

/s/ Rodney N. Lanthorne

Rodney N. Lanthorne

   

Director

(Authorized Representative in the United States)

/s/ John S. Gilbertson

John S. Gilbertson

   

Director

/s/ Hideki Ishida

Hideki Ishida

   

Managing Executive Officer

(Principal Financial Officer)

/s/ Shoichi Aoki

Shoichi Aoki

   

General Manager, Financial & Accounting Division

(Principal Accounting Officer)

EXHIBIT INDEX*

 

Number
   

Description

4.1   

Articles of Incorporation of the Registrant**

4.2   

Share Handling Regulations of the Registrant**

4.3   

Specimen common stock certificate of the Registrant***

5.1   

Opinion of Tomotsune & Kimura

5.2   

ERISA Qualification Undertaking

23.1   

Consent of ChuoAoyama PricewaterhouseCoopers

24.1   

Power of Attorney (included in the signature page)

99.1   

Kyocera Mita America, Inc. Savings and Investment Plan

99.2   

Kyocera Corporation ADS and Common Stock Information for the Kyocera Mita America, Inc. Savings and Investment Plan

99.3   

Kyocera Mita America, Inc. Savings and Investment Plan: Comparative Fund Information

99.4   

Kyocera Mita America, Inc. Savings and Investment Plan Summary Description

* Exhibits required by Items 601(b)(5), 601(b)(15) and 601(b)(99) of Regulation S-K have been omitted because they are not applicable.
** Incorporated by reference to Exhibits 1.1 and 1.2, respectively, to the Registrant’s Form S-8 filed on August 31, 2004.
*** Incorporated by reference to Exhibit 2.1 to the Registrant’s annual report on Form 20-F filed on September 24, 2001.