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🌏 | Shinsei Bank resolves to introduce defense measures SBI reserves for or against TOB = related parties


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Shinsei Bank resolves to introduce defense measures SBI reserves for or against TOB = related parties

 
If you write the contents roughly
According to the Nihon Keizai Shimbun, the takeover defense measures are to distribute stock acquisition rights free of charge to shareholders other than mass purchasers.
 

[Tokyo XNUMXth Reuters] -Shinsei Bank will take over (stocks ...) by SBI Holdings at the board meeting on the XNUMXth. → Continue reading

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Wikipedia related words

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Stock acquisition

(M & A,Mergers (merger) and Acquisitions (acquisition)Merger of companies and businesses,AcquisitionIs the generic name of[1].

Overview

It is a concept that comprehensively refers to transactions involving the transfer of all or part of a company or business. In a narrow sense, it refers only to transactions involving the transfer of control of a company, but in a broader sense, acquisition of less than 50% of control is limited. It can also include transactions to strengthen control, such as minority investment and making an existing subsidiary a wholly owned subsidiary.[2].

As a concrete method,Absorption merger, Acquisition / transfer of shares (TOBIncluded),Business transfer,Company split, Merger, etc.In a broad senseJoint VentureCapital tie-up including establishmentbusiness partnership,OEMIncluding alliances.

Basic mechanism of corporate acquisition

About company owners and managers

When a company is a joint-stock company, etc., directors, etc. are obliged to manage as a manager, and shareholders, etc. exercise the rights stipulated as owners (stipulated by law or articles of incorporation) to create a certain tension. It is believed that the significance of the company's existence and legal compliance will be properly fulfilled by governing the company by making it exist (the ideal form planned by the Companies Act).thisSeparation of ownership and managementSay.Specifically, it means that shareholders control the company by appointing directors and auditors, changing the matters stated in the articles of incorporation, and making shareholder proposals (there is no system in the United States) at a general meeting of shareholders.The position of the manager is the same delegation contract as a professional baseball player, not an employment contract.In a narrow sense, the owner's "ownership" is the right promised to exercise the rights stipulated by law or the articles of incorporation ("ownership", which is weaker than the conventional wisdom, is both creditor protection and indirect limited liability. Is the purpose).

In a corporate acquisition, the acquirer generally buys shares from the current shareholders, becomes a new shareholder, and controls the management as the "owner" of the company.The primary purpose is to enjoy the benefits of receiving economic benefits such as dividends as a shareholder (sometimes the purpose is corporate control itself).

Unless the owner company has the same management and shareholders, the management team is only in the position of being appointed as a shareholder and entrusted with the management of the company.Since the management team at the time of the acquisition proposal was the one who was entrusted with the management by the shareholders up to that point, fluctuations in the shareholders due to the acquisition mean that those who appointed themselves will no longer be shareholders.Directors are only in a position to be elected, and while they are not originally in a position to directly express their opinions on the transfer of shareholders, they actually have an important stake in maintaining their position as a manager (private interests). ).

It is justified for management to comment on the takeover offerCorporate valueIt is time to give an opinion to current shareholders as to whether the takeover offer is valid, with the goal of maintaining (dividends and stock prices in a narrow sense).To put it simply, the directors oppose the acquisition proposal by positioning it as advice from the field that it is better to stop taking the acquisition proposal because there is no merit for shareholders, rather than opposition because it will jeopardize their position. Even so, it can be said that it is not based on self-interest.

Shareholding ratio

Shares are planned to be subdivided and held by multiple shareholders, usually in proportion to the total number of issued shares and the number of shares that have voting rights that can be exercised on each agenda item. You will acquire "ownership".Ordinary joint-stock company proposals such as the appointment of directors will be approved with the approval of shareholders who have a majority of the voting rights of the total number of issued shares, and approval of mergers and amendments to the articles of incorporation, which are important for the company, will be approved in the same 3 minutes. Since it is approved with the approval of shareholders who have two or more voting rights, it is the company's "ownership" whether or not it has a majority stake in the company and whether or not it has two-thirds or more. Can be a delimiter for.In addition, even if it does not reach that level, if one-third or more of the voting rights are held, it will be possible to prevent unintended important resolutions.

How to acquire shares

The acquirer can acquire the shares through bilateral transactions (individual negotiations) with the current shareholders, and in the case of a public company,Stock exchangeIt is possible to acquire the shares of the target company in such markets.However, when acquiring a certain percentage or more of the shares of a specific companyMass holding reportSuch asSecurities Trading LawIn addition to being subject to regulations under the (Financial Instruments and Exchange Act), in certain casesTender offerThere will be restrictions such as being obliged to use the above method.In the case of a listed company, the tender offer is a purchase from a general shareholder while the acquisition proposer announces the conditions, and if the current management agrees with it.Timely disclosureSince it is necessary for the acquired company to announce that fact as part of the acquisition, at least at this point the acquisition effort will be open and it will be clear whether the framework is a so-called hostile acquisition or a friendly acquisition. Become.

Strategy for M & A

How to proceed with general friendly M & A transactions

Basic agreement

Basic agreement(MOU) may be used to make certain agreements prior to negotiations.Contracts such as confidentiality, exclusive bargaining rights, and sincere bargaining obligations are made.Before thisNon-disclosure agreement(NDA) is often tied.

Due diligence

For the purpose of pricing the target company, necessary treatment by contract, advance understanding of risk, etc.Due diligenceAn audit called (“DD”) is performed.There are business due diligence (business due diligence) by the parties and investment banks, legal due diligence by lawyers, financial due diligence by certified accountants, and intellectual property (patent rights, trademark rights, copyrights, etc.) DD by patent attorneys.

Agreement

Necessary contracts such as merger contracts and stock sales contracts are created and concluded.The draft will be led by the parties or the law firm in charge of the legal due diligence and will reflect the results of the due diligence.Prior to concluding a contract, if necessary, each party may go through internal procedures (approval at the board of directors, general meeting of shareholders, etc.) and obtain approval from related government agencies (business regulatory authorities and competition law authorities). ..

Closing

Settlement will be made and M & A will be carried out on the date specified by the contract.

Hostile takeover

Hostile takeover is a term that refers to an acquisition that is not friendly to the current management of the target company, usually without the consent of the target company's board of directors.If the management disagrees with the takeover proposal, takeover defense measures will be introduced, and shareholders will be encouraged not to accept the takeover offer as a company management. There will be a fierce struggle centered on the management team of the acquired company.

Although not a very good image as an expression, the expression "hostile" in the context of a hostile takeover only means that the current owner and the takeover proposer are "hostile", and the takeover. The content of the proposal is neutral and does not mean that it is a hostile or harmful acquisition to shareholders, investors, employees, and society in general other than the acquisition proposer.

However, in the case of a hostile takeover, not only the management team of the target company, but also employees, labor unions, business partners, etc.SubcontractorIt is a hostile content that cannot be said to be friendly even for such companies, and there are often patterns in which selfish acquisitions are forced.In addition, the acquiring company and managementPoor working environment・ Widely known for dry labor relations and business practices, or working for short-term self-interest and do not care about the long-term outlook of the companyInvestment fundIn such cases, various information and anxieties among related parties are mixed inside and outside the company that was the target of the acquisition, and a large number of employees who feel uneasy about their future will leave their jobs in a short period of time. It is not uncommon for acquisitions to carry various risks, such as the fact that a business partner or subcontractor who anticipates a deadlock in a relationship terminates the transaction.Also, especially when the company is confused in this way, we can take advantage of this from competitors to employees.Head huntingMay be set up.As a result of these, especially specificBusiness monopoly qualificationIn industries that require qualified personnel, even if the acquisition is successful, the business will be stagnant due to the outflow of qualified personnel from the company and the number of employees will be insufficient, and those who have left the company will establish new peers based on their know-how. There may be risks such as raising it and becoming a competitive relationship.

M & A in Japan

Overview of M & A in Japan

As a concept under Japanese law,merger-Company split-Stock exchange-Stock transfer-Takeover bidLegal elements such as, etc. are the core, but each of these elements is regarded as a means of gaining control of the target company, and in the case of M & A, it can be used as a concept to grasp the corporate strategy including the design of the means to be used. There are many.

Fair Trade CommissionAccording to the guidelines of, holding of company shares, concurrently serving as an officer, holding of shares of a person other than the company or merger of companies, joint establishment split or absorption-type split, joint share transfer or business transfer, etc.Business combinationIs subject to examination[3].

Characteristics of M & A in Japan

  • In Japan, M & A is often thought of as belonging to a large company, but in reality 70% of M & A in Japan is said to be aimed at small and medium-sized companies.[4].
  • In Japan, there is a movement to use M & A for successor problems of small and medium-sized enterprises, but the use is not progressing due to problems of management's mind such as "it is embarrassing to sell the company".[5].
  • One of the characteristics of M & A in Japan is that an M & A intermediary company concludes an intermediary contract with both the seller and the buyer, advises both parties, and collects commissions from both parties.Due to the inherent issue of conflicts of interest, trading parties need to carefully scrutinize whether the intermediary's advice is honest.[6]..As of 2018, there are no business laws and regulations for M & A intermediaries in Japan, so the problem is that there is no collateral for proper business operations.Some vendors have trouble signing unclear contracts[7].
Overseas, it is common for M & A advisors to stand in the position of either the seller or the buyer, strive to pursue the profits of one, and receive a performance fee.
  • Around 2019, with the spread of M & A matching sites, M & A with transaction prices of millions of yen to tens of millions of yen, called small M & A and mini M & A, also increased.While many sellers are owners of small and medium-sized enterprises who are worried about business succession, buyers have not considered M & A, such as the entry of individuals such as office workers against the background of the lifting of the ban on side businesses, and small businesses aiming to expand their business. Increasingly, the layer is making acquisitions.On the other hand, there are cases where easy entry fails, and countermeasures are urgently needed.[8].

Motivation and purpose of M & A in Japan

There are three main motives for M & A of large Japanese companies: "to gain international competitiveness," "to strengthen domestic market competitiveness," and "to revitalize bankrupt companies."[9]Also be treated.

There are two main motives for the transfer side of M & A of Japanese SMEs: "successor problem" and "anxiety about the future of the business".[10]Also be treated.

Many founded in Japan in the 30's and 40's of the Showa era中小企业Founding managers are facing difficulties in succession[Annotation 1], It is said that friendly M & A of small and medium-sized enterprises has become a quiet fashion as a solution to this problem.[12].

When the owner of an unlisted company thinks about inheriting the business, the options are "inheritance to relatives or employees" and "inheritance to relatives or employees".Initial Public Offering (IPO)Although there are four types, "clearing" and "M & A," the first two are rarely possible to meet the conditions, and "clearing / closing" is the worst option for employees, resulting in M ​​& A. That the option will emerge[13].

Typical method of M & A in Japan

Hostile takeovers in Japan

The following are examples of hostile takeovers in Japan so far (note that they are referred to as the side that made the deal vs. the side that made the deal).

Hostile takeovers in Japan
Overview
Case study*Odakyu Electric Railway-Tokyu Electric Railway round. Sagami Railway(Around 1960)
Owned by SotetsuYokohama StationFor the land at the west exitTokyu GroupAcquired shares through Odakyu, which was under the influence of.However, the president at that timeYokohamaWas fromMitsui BankThe acquisition by Odakyu was unsuccessful as the company provided funds to Sotetsu.However, even after that, Odakyu is still its successor as of 2020.Sotetsu HoldingsIs the largest shareholder of.
Takami TakahashiLed bybearingManufacturer Minebea acquires shares in precision machinery manufacturer Sankyo Seiki.However, the acquisition was unsuccessful due to the success of the stable shareholder work on the Sankyo side.
The acquisition was unsuccessful.Shoei (Fuyo systemReal estate industry / trading company) later implemented the effective use of real estate proposed by the Murakami Fund.In recent years, the company has changed its industry sector in the short term (textile products → trading company (former wholesale) → real estate → trading company).Shoei # Japan's first hostile takeover bidSee also
The acquisition was unsuccessful.By contributing the surplus as a dividend and raising the stock price, the establishment of the TOB was prevented.
The acquisition was unsuccessful.By contributing the surplus as a dividend and raising the stock price, the establishment of the TOB was prevented.
The acquisition was unsuccessful.Completely failed negotiations.There was a problem with Yumeshin's unconventional business stance.However, it attracted attention because it was an attempt to take a hostile takeover of a company that had already introduced Japan's first takeover defense measures.
The acquisition was unsuccessful.Takafumi HorieWith the former president of Livedoor (currently the founding president and writer of a rocket engine research and development company)MurakamiyuanM & A consultantBy the representative's plan.Broadcasting holding companyOne of the cases that triggered the full-scale introduction of the system.
Nippon Broadcasting Management Rights Issue # Confusion After Kanai Hostile AcquisitionSee.
One of the cases that triggered the full-scale introduction of the broadcasting holding company system.
Tokyo Broadcasting Holdings #Tokyo Broadcasting (then) stock movementSee.
After becoming the target of the acquisition, it announced a business integration with Hankyu Holdings, which led to the reorganization of the railway industry (currently:Hankyu Hanshin Holdings).Hankyu-Hanshin management integrationSee also
The acquisition was unsuccessful.Take outBox lunchOver the acquisition proposal aimed at entering the business, the situation eventually progressed to a hostile takeover situation.Appeared as a white night on the Origin Toshu sideionConducted a friendly takeover bid under more favorable conditions, and this was established, and Origin Toshu became a subsidiary of Aeon.Aeon and Don Quijote's top talks settled down in a "three-company alliance," but Don Quijote was virtually defeated.
From around May 2006, he consulted with the Hokuetsu side under the surface of the water, but the Hokuetsu side did not respond.After that, HokuetsuMitsubishi CorporationAnnounced a capital increase through third-party allotment.In August 2006, Oji Paper announced a TOB at a price corresponding to whether or not a third-party allotment was implemented.It was also noted that Nomura Securities, which was the lead underwriter of both, became an advisor on the prince's side.This was a proposal that pointed out that there are merits for existing shareholders, such as making a tender offer at a price that is about 8% higher than the market price at the time of publication of the proposal, but the directors of Hokuetsu Paper did not agree and other than Mitsubishi Corporation AlsoNippon Paper IndustriesPartly intervened, Oji Paper abandoned the takeover bid.
Steel Partners began a tender offer for Myojo Foods on October 10, after whichNissin FoodA friendly takeover was carried out by, and many responded to it, and Steele's takeover ended in failure.After that, Steele bid for the Nissin TOB.
following#Bull-Dock Source Takeover Defense Measuresas well as the Bulldog Source IncidentSee section
This was the first hostile takeover bid for a domestic listed company.
First hostile takeover of a Japanese company by a Korean company
Abandoned due to opposition from the Toyo Denki Manufacturing Labor Union, which expressed concern about Nidec's labor management system.
This is one of the few examples of a hostile takeover of a listed company.Since it is a nuclear power plant-dependent company that supplies products for nuclear power plants, its business performance has been sluggish since the earthquake.Naruwa, a major shareholder, has fought over management rights in search of management reforms.The hostile takeover by Seiwa was completed in a blink of an eye.The existing management team was wiped out and Naruwa officials became the top management, Nippon Gear Co., Ltd. became a subsidiary of Nariwa, and Nariwa took control of the management.Nippon Gear Industry # Offense and Defense over Management RightsSee also
J-REITFirst hostile takeover.The acquisition of Sakura Sogo REIT Investment Corporation by Star Asia was completed.
Colowide, the largest shareholder of Ootoya, is OotoyaCentral kitchenConflict over the pros and cons of the introduction and the purpose of clearing the management teamTender offer(TOB) announced.It held 47% of the issued shares and completed the difficult purchase over a year.However, Ootoya management alsoThird-party allotmentAre considering[15], Prolonged conflict is expected[16].

Responding to hostile takeovers

Originally in Japan, "Cross-shareholdingDue to the custom, it was difficult to acquire a company.Cross-shareholdings can be seen with business partners and financial institutions.Business partners and financial institutions have been recognized for the purpose of stabilizing and maintaining business relationships and for their own mutual shareholder merits.In addition, insurance companies and employee holding associations are expected to play a role as stable shareholders, and a system such as shareholder benefits has been developed to encourage individual shareholders to hold stable stocks for a long period of time.

HoweverDeflationary recessionFrom the perspective of improving the efficiency of corporate assetsAssetPoor profitability of stocks as, continuous trading between companiesImproving competitive efficiencyThe number of people who pointed out cross-shareholdings, such as hindering cross-shareholdings, was increasing.AlsoMarket priceWith the introduction of accounting, the asset value of stock holdings has fluctuated, and the risk of stock holdings has also surfaced.For affiliated transactions, long-term continuous transactions are assumedCapital investmentTo encourage or品質There are many merits such as being easy to secure.HoweverForeign capitalCross-shareholdings as new companies enter the market and tradeMarket competitionIt is said that it is a big barrier to promote the deflation, and even for the procurement companies, amid the worsening deflationary recession, we will expand the procurement sources and negotiate discounts regardless of the conventional business relationship, aiming for a significant cost reduction. Has come to be emphasized.For these various reasons, the dismantling of cross-shareholdings has come to be claimed.

However, with the establishment of a corporate acquisition system in recent years, attention has been paid to strengthening cross-shareholdings as well as encouraging individual shareholders to hold long-term holdings.This is because it is a defensive measure that can be carried out without necessarily having an explicit declaration element and without having a significant impact on the market.Specifically, it is being implemented by making a third-party allotment of capital for the ostensible reason of strengthening business relationships between companies.

On the other hand, what is called "takeover defense measures", which has been controversial in recent years, is likely to cause a reaction from the market because it involves declarative elements such as the announcement of the introduction of specific "takeover defense measures".Takeover defense measures are originally intended to maintain corporate value (dividends and stock prices in a narrow sense) for shareholders, and takeover defense measures that damage corporate value currently lead to acts of distrust toward shareholders. I can't justify it.In addition, it is generally said that the stock market responds negatively to defense measures that only protect the position of management.Therefore, the approval procedure at the general meeting of shareholders is emphasized.Another important factor is the conditions for invoking takeover defense measures.In many cases, a committee independent of management is required to determine that the acquirer's aim is detrimental to corporate value.Confirming the intention of the acquirer and deciding to activate the defense measures in this way is called the advance warning type.In this case, the definition of an acquirer is that it has acquired 15% or 20%, and the meaning of a committee independent of management is often an outside member that does not include management.

As specific takeover defense measures, there are many poison pill types as shown below.Many of them issue stock acquisition rights to existing shareholders free of charge.However, the issuance of stock acquisition rights will dilute existing shareholder rights (Stock dilution) Is also criticized.Therefore, a mechanism (rights plan) has also been developed in which stock acquisition rights are issued to the trust bank in advance and the stock acquisition rights are delivered to shareholders via the trust bank when the triggering conditions are met.

In response to such discussions on takeover defense measures, it is best to improve corporate value, assuming that companies are exposed to the threat of takeovers because high stock prices have not been realized compared to feasible stock prices. It has been repeatedly argued that it is a takeover defense measure.In such discussions, measures to improve stock prices, such as returning profits to shareholders, such as increasing dividends and purchasing treasury stock, may be pointed out as corporate takeover defense measures.

Takeover countermeasures (takeover defense measures)

Below, we introduce famous defense and preventive measures.There are various risks such as introduction costs, risks under the Companies Act (injunctions and liability for damages of officers, etc.), risks under the tax law, risks related to effectiveness, etc., and they are used properly according to the characteristics of each company.In addition to the following, there is also a method of setting the dividend of the stock to a very high amount and appealing to existing shareholders not to sell the stock easily, but basically, we disclose information and always meet the expectations of shareholders. It is important to maintain a high stock price.

Golden parachute

The meaning of "golden parachute".Current after the acquisitionDirectorIs often dismissed, but the amount of retirement benefits for the director is set high.As a result, the expense after the acquisition is high, which discourages the acquisition.The standard amount of retirement benefits is about 2-3 years of the annual income of directors, but if the amount is high, it may be exposed to criticism from investors.Retirement benefits, which are so high that they discourage acquisitions, are difficult to utilize in reality.It is sometimes referred to as a method that allows the acquirer to hand over money to the director as a cut-off to facilitate the acquisition.

Tin parachute

The meaning of "tin parachute".After the acquisition, the amount of retirement allowance for employees is set very high by taking advantage of the fact that employees are often dismissed due to personnel reduction.This is a way to discourage acquisitions by showing that even if they are acquired, they will spend a lot of money later.

Absolute majority clause

After the acquisition, a method of raising the approved capital ratio of special resolutions such as the dismissal of directors to 80% or 90% so that it cannot be easily passed.However, in Japan, the absolute majority clause can be deleted by amending the articles of incorporation, so it is meaningless unless the amendment of the articles of incorporation itself has an absolute majority clause.

Third-party allotment

Defensive measures in case of emergency.Not a precautionary measure. March 2005Live doorNippon Broadcasting System, Inc.We will use a method called a capital increase to issue new shares in a way that became famous in the event in.By doing so, the total number of issued shares will be increased and the shareholding ratio of the acquiring company will be reduced to prevent acquisition.Unlike ordinary public offering, only designated third parties can purchase new shares.However, issuance at a low price, which leads to the provision of substantial profits, may dilute the value of the shares held by other shareholders and cause damage, so the focus is on investor protection.Securities Trading LawIt is said that it should not be abused because there is a strong suspicion of violation.

Poison pill

Also called the poison clause.Stock acquisition rights are issued in advance, and when certain conditions are met, they can be exercised at a low price.Stock dilutionA mechanism to reduce the shareholding ratio of the acquirer.AmericaThen,Stock acquisition rightIt is done using attached shares.

in JapanOld commercial lawSince shares with stock acquisition rights were not allowed below, the trust-type rights plan was the most widely used. Enforced May 2006, 5New Companies ActUnder the circumstances, it is legally possible to attach stock acquisition rights as and, and since it has become possible to issue shares with stock acquisition rights in effect, it may be used for future takeover defense measures in Japan.Poison pill and rights plan are not synonymous, but they are used almost interchangeably in Japan.

The takeover defense measures approved by Bull-Dog Source at the 2007 Annual General Meeting of Shareholders differ from typical poison pills in that they are not prepared in advance, but they intend to reduce the shareholding ratio of acquirers by issuing new shares. Similar in.This takeover defense measure is for shareholders as of (July 2007, 7), with 10 shares per share held.Stock acquisition right(The shareholders here include the acquirer).This stock acquisition right can be acquired for one share of common stock by paying 1 yen, but the acquisition proponents Steel Partners, related parties, transferees, etc. are designated as non-qualified persons and the acquisition rights cannot be exercised. In addition, the company has the right to purchase stock acquisition rights for non-qualified persons for 1 yen.The company explains that this price is based on the tender offer price and does not cause any financial loss to the acquirer.[17].

Request an injunction against this gratis allotment of stock acquisition rightsProvisional disposalWas filed on June 2007, 6,Tokyo District Court(Yasushi KanokogiThe presiding judge) dismissed the decision of the general meeting of shareholders as not being found to be clearly unreasonable and not significantly unfair.[18]..Steel Partners dissatisfied with this decisionImmediate appealI went, butTokyo High Court(Judge) on July 7th, Steel Partners from past TOB casesAbuse acquirerA decision supporting the Tokyo District Court's decision that the takeover defense measures introduced by Bull-Dog Source are not in a significantly unfair manner.[19] Was done.Steel PartnersSpecial appeal-Permit appealOn July 7, the Tokyo High Court granted the appeal to the Supreme Court, but the Supreme Court dismissed all of the appeals on August 27.[20].

On July 7, stock acquisition rights were actually granted to shareholders as a takeover defense measure.Based on this stock acquisition right, new stock was delivered to shareholders on August 11.Of the shareholders, Steel Partners' stock acquisition rights were purchased by Bulldog.[21].

Staggered board

Meaning of staggered directors (association).A way to earn time by re-election of half of the directors instead of two years.This method is strongly criticized by investors and is not easy to use.The reason is that investors are worried that staggered appointments may reduce the motivation of directors.

Golden share

By issuing shares that have the right to veto important resolutions of a general meeting of shareholders to a trusted third party, the resolutions necessary for the acquisition are obstructed.It can be introduced by the enforcement of the Companies Act, and even public companies such as listed companies on the Tokyo Stock Exchange can be introduced under certain conditions such as being invalidated by a resolution of a general meeting of shareholders.

All shares with acquisition clause

Those that can be introduced at least in terms of the provisions of the Companies Act.Unlike the case of attached shares, attached shares are statutory at the general meeting of shareholders at the time of acquisition.Class Shareholders' MeetingInstead of having the demerit of requiring an acquisition resolution in, it is sufficient to set it at the time of the resolution, so there is an advantage that it is not necessary to set the acquisition consideration when setting all the acquisition clauses.Company lawIt was introduced in the future, and it is unknown how it will be used for takeover defense.Rex HoldingsThis method was utilized in the MBO of.

Advance warning type

It warns in advance that certain defensive measures will be taken when an acquisition is about to be made.

Management buyout

Abbreviated as MBO.The existing management will acquire the shares of the company and turn it into a closed company, which is a straightforward and ultimate takeover defense measure.Since listing a stock allows a third party to freely acquire the stock, delisting is a measure to directly counter the acquisition of the stock by a person who is not desirable for the management.

Scorched Earth (Crown Jewel)

Also known as Scorched Earth Defense.Company hasCrown jewelTo affiliated companies (things with high property value)SellAndPlanned bankruptcyA method to eliminate the merit of acquiring by causing the stock price to crash.However, if the corporate value declines, not only the relationship of the hostile acquirer but also the property that is the reserve of the creditors of the company may be damaged. Therefore, in some cases, the director who should pursue the profit of the company is the company. It may also fall under the offense of impersonation (imprisonment of up to 5 years or a fine of up to 50 yen) or a special offense of impersonation (imprisonment of up to 10 years or a fine of up to 1000 million yen). ..

White knight

The meaning of "Knight of Hakuba".A third party (company, person) that is friendly to the company receiving the hostile takeover.In many cases, the current management team brings in favorable conditions such as being able to remain in management even after being acquired by White Knight.[22]..By having them buy back their own sharesCasting boatCan be grasped.If we can secure 1/3 of the total number of issued sharesVetoCan also be exercised.In some cases, the company to be acquired will be reverse-acquired (Pac-Man Defense = described later).On the other hand, companies that make hostile takeovers are sometimes called "black knights."

Main cases

Pacman Defense

Also called reverse acquisition.An attempt to prevent a company that has undergone a hostile takeover from taking over the takeover offerer in reverse, preventing it from coming under the control of the takeover offerer's current management.Video games"Pac-Man], It is derived from the fact that the main character in the position of being chased eats the pursuit and fights back under certain conditions.

Jewish Dentist

Defense measures centered on information manipulation and PR tactics.A work that disseminates the social weaknesses of the company that has set up the acquisition by using the media, etc., to reduce the image and reduce the social credibility, and to stop the acquisition by turning the acquisition work funds to restore the social credibility.It is said that this is because the acquired company (American dentists are said to have many Jews) carried out a public relations strategy when an Arab-owned company tried to acquire a dental instrument manufacturer.

Relationship with the labor union

In the case of a company that has a good labor-management relationship and a so-called "homely atmosphere" corporate structure, in the event of an acquisitionUnionOpposition to the acquisition and a strong sense of anxiety about the acquirer may act as a breakwater that makes the acquisition difficult.In the past, employees who oppose the acquisition due to concerns about the attitude of the acquirer company / management regarding the working environment, and if the acquisition is successful, consider leaving the job depending on the situation. In some cases, the data from a survey, which was dominated by members, was shown as a statement of intention, resulting in a failure of the acquisition.

Pros and cons of invoking takeover countermeasures and preparation of related laws and regulations

Generally, if the management team such as the director of the acquisition target company does not agree with the proposal by the acquisition proposer, the implementation of countermeasures against the acquisition will be considered.In this case, it is often a dispute as to whether or not it is legally permitted to actually implement countermeasures against acquisitions in relation to the interests of the shareholders of the acquisition target company.Due to the frequent hostile takeover cases and the invocation of countermeasures against takeovers in the United States, the range of countermeasures against takeovers that is legally or practically recognized has been gradually established.To be a typical standardRevlon criteria,and so on.

It is sometimes questioned that corporate takeover defense measures may overprotect management and damage the interests of shareholders.Therefore, there are criticisms about deciding to introduce defensive measures only by a resolution at the board of directors, and there is an opinion that certain procedures such as approval at a general meeting of shareholders are necessary for the introduction.

In Japan, there are few cases of hostile takeovers so far, and it cannot be said that the accumulation of judicial precedents is sufficient.Discussions have been proceeding with reference to discussions in the United States and with an awareness of the balance with corporate law practices in Japan.

Tokyo High Court's decision on issuance of stock acquisition rights (Nippon Broadcasting System case)

In a decision made on March 2005, 3, the Tokyo High Court provided four specific examples of hostile takeovers in which the management of the target company, such as a board of directors, may take countermeasures against the takeover. ing.

  • If you do not intend to participate in company management and want to raise the stock price and then have the company officials buy it at a high price (Green mailer
  • Intellectual property by temporarily controlling the target company,Know-how, Corporate secrets, business partners, etc. for the purpose of transferring to the acquirer, etc. (scorched earth management)
  • After controlling the management of the target company, if the purpose is to divert the assets as collateral for the debt of the acquirer, etc. or as a source of repayment.
  • When a large amount of stock is planned to be sold out due to a temporary high dividend or a sharp rise in the stock price for a high dividend by disposing of the high-value assets of the target company.

In these cases, the hostile takeover has proposed an acquisition for the purpose of abuse, so it is not necessary to protect it as a shareholder, and the directors are allowed to take countermeasures against the acquisition as it harms the interests of other shareholders. did[26][27].

Guidelines for takeover defense measures

September 2005, 5Ministry of Economy, Trade and IndustryLed byCorporate Value Study GroupPrepared and published the "Corporate Value Report", and based on this, the Ministry of Economy, Trade and IndustryMinistry of JusticeGuidance was announced.Although this guideline is not legally binding, it is regarded as having a certain influence, such as being expected to be used as a code of conduct not only by the Ministry of Economy, Trade and Industry but also by the Ministry of Justice.

In the above guidelines, regarding the introduction of takeover countermeasures by directors, "Since it is difficult to say that a general meeting of shareholders as a decision-making body is a flexible institution, the board of directors should introduce takeover defense measures that contribute to the common interests of shareholders. It is not appropriate to deny it uniformly, "he said, and the following principles should be met when introducing, exercising, or abolishing takeover countermeasures.

  • To be done with the purpose of securing or improving corporate value and the common interests of shareholders (Principle of securing and improving corporate value and common interests of shareholders
  • Disclosure of the purpose and content of the introduction to shareholders, investors, etc. in advance (Principle of prior disclosure
  • Rely on the rational will of shareholders, such as introducing it based on a resolution of a general meeting of shareholders or providing means that can be abolished by the relative will of shareholdersPrinciple of shareholder will
  • By a necessary and reasonable method that takes into consideration the principle of shareholder equality, protection of property rights, prevention of abuse for the protection of management, etc. (Principle of ensuring necessity and appropriateness

Furthermore, on March 2006, 3, the study group published a report entitled "Corporate Value Report 31-Toward the Establishment of Fair Rules in Corporate Society-", and disclosed rules for takeover defense measures and listing / listing. We have summarized the acquisition rules and other details.

Enactment of company law

In addition, on May 2006, 5, as a law governing companies such as joint-stock companies, it replaced the conventional commercial law and other laws and regulations.Company lawWas enforced.The enactment of the Companies Act has affected M & A practices, including new provisions regarding measures that can be used as countermeasures against acquisitions.

Amendment of the Financial Instruments and Exchange Act (formerly the Securities and Exchange Act)

Traditional securities trading lawFinancial Instruments and Exchange ActIn June 2006, an amendment was enacted to expand the target transactions and strengthen some regulations.Each amendment is being implemented in stages, including amendments that affect M & A practices, such as the amendment of the tender offer system, the expansion of the application of compulsory tender offer, and the amendment of the large-volume holding reporting system.

Experts involved in M ​​& A

Experts involved in M ​​& A include:[28].

Financial Advisor (FA)
M & A intermediary company
  • It is a company whose role is to match M & A sellers and buyers. The border with FA is ambiguous[28].
  • AboveAs you can see, there is an inherent problem of conflict of interest because we conclude contracts with both sellers and buyers.[28].
  • In recent years, an increasing number of listed companies specialize in M ​​& A brokerage.[31].
Lawyer
  • A lawyer who specializes in (one of) M & A is called an M & A lawyer.[32].
  • Responsible for legal check of various contracts created in the process of M & A, implementation of legal due diligence, formulation of transaction scheme, etc.[28].
  • M & A has so many related laws that it is called a "legal department store," and lawyers play a large role.[32].
  • May be in charge of negotiations on behalf of the parties[28].
  • Depending on the client's request, we may provide comprehensive advice that goes beyond legal advice, such as giving a lecture on the entire M & A procedure and being involved in the calculation of stock value.[32].
  • Legal DDs need to investigate large amounts of material in a short period of time, so a large law firm that can mobilize a large number of lawyers is advantageous, so lawyers specializing in M ​​& AMajor law firmThere are many.
  • It has been pointed out that commoditization of M & A-related practices has progressed around 2020, and the range of lawyers who can be involved in M ​​& A deals is expanding.[32].
Certified public accountant-Tax accountant
Implementation of financial due diligence[33], Calculation of corporate value, tax planning, accounting and financial advice[28][34].
Judicial scrivener
Registration required for organizational restructuring procedures such as company splits and mergers[33]In addition, depending on the case, change registration due to the change of management team is also performed.[28].
More

M & A in the United States

Overview

In the United States, M & A is enacted at the level of state law, so the details vary from state to state.[35]..As a general rule, the Internal Revenue Service is applied to the tax law.[35].

Typical M & A method

There are four types of acquisition schemes using shares in the United States: mergers and acquisitions, triangular mergers, tender offers or purchases from specific shareholders, and asset acquisitions.[35].

  • Main unit merger
The merger requires a resolution of the shareholders' meeting, but if the surviving company of the buyer controls 90-95% (depending on the state) of the shares of the non-surviving company of the seller, the seller will be approved by a majority of the board of directors. Merger completed (Short Form Merger)[36].
  • Triangular merger
A triangular merger is a procedure in which the seller becomes a wholly owned subsidiary of the buyer's company, rather than the buyer's and seller's companies becoming the same legal personality as in the case of a main body merger.[36].
  • Tender offer
  • Asset acquisition

Cases of M & A in the United States

Large-scale M & A (in order of transaction amount) conducted after 2000

RankingYearsAcquired companyAcquired companyTotal amount (US $ 100 million)
12000AOL(AfterSellWhat)Time warner164,747
22000Glaxo WelcomeSmithKline Beecham75,961
32004Royal Dutch PetroleumShell Transport & Trading74,559
42006AT&TBel South72,671
52001ComcastAT & T broadband72,041
62004Sanofi Santellabo60,243
72000Spin-off : Nortel59,974
82002PfizerPharmacia59,515
92004JP Morgan ChaseBank One58,761

footnote

[How to use footnotes]

注 釈

  1. ^ A survey of client companies at a major accounting firm found that about half of them had no successors, for the following reasons:[11].
    1. No children
    2. My child works for a big company and doesn't succeed
    3. Although I have children in the company, it is not suitable for business owners considering the difficult economic situation.
    4. My spouse became the successor due to the death of the founder, but I want to retire.
  2. ^ Steele reportedly put an end to its hostile takeover by selling all of its sole Sapporo stake between December 2010-12, 9.[14].

Source

  1. ^ Selected version of the Japanese Dictionary. “”(Japanese). Koto bank. October 2021th, 8Browse.
  2. ^ Mori Hamada Matsumoto Law Office 2015, p. 3
  3. ^ Fair Trade Commission (December 2019, 12). “Operational guidelines for the Antimonopoly Act on Business Combination Examination". October 2021th, 8Browse.
  4. ^ Yasuhiro Wakebayashi 2011.
  5. ^ "Current status and issues of M & A in SMEs and small businesses”. Small and Medium Business Administration. October 2021th, 8Browse.
  6. ^ Shinro Kato 2018, p. 6
  7. ^ Shinro Kato 2018, p. 5
  8. ^ “Mini M & A expansion company employees also have annual sales of less than 1 million yen, the rise of intermediary sites, the lifting of the ban on side businesses, and the way to inherit technology”. Nihon Keizai Shimbun(July 2019, 6). https://www.nikkei.com/nkd/industry/article/?DisplayType=1&n_m_code=155&ng=DGKKZO46359970Q9A620C1TJ3000 October 2021th, 8Browse. 
  9. ^ Yasuhiro Wakebayashi 2011, p. 18.
  10. ^ Yasuhiro Wakebayashi 2011, p. 23.
  11. ^ (Yasuhiro Wakebayashi 2011, p. 18)
  12. ^ Yasuhiro Wakebayashi 2011, p. 26.
  13. ^ Yasuhiro Wakebayashi 2011, pp. 29–36.
  14. ^ "Hokkaido Shimbun" December 2010, 12 morning edition (17th edition)
  15. ^ "Colowide establishes hostile takeover bid Ootoya and prolongs conflict”. Jiji.com (September 2020, 9). October 2020th, 9Browse.
  16. ^ "To establish a hostile takeover bid for Ootoya Colowide renews management team”. Asahi Shimbun Digital (August 2020, 9). October 2020th, 9Browse.
  17. ^ "Notice Concerning Gratis Allotment of Stock Acquisition Rights Based on Special Resolution of the Ordinary General Meeting of Shareholders of the Company" (PDF) June 2007, 6 Bull-Dock Source Official
  18. ^ Decision on provisional disposition order petition case such as prohibition of resolution at general meeting of shareholders June 19, 6 Tokyo District Court Civil Part 28 Court Official
  19. ^ Decision on appeal case against case of dismissal of provisional disposition order such as prohibition of resolution at general meeting of shareholders July 19, 7 Tokyo High Court 9th Civil Affairs Department Court Official
  20. ^ "Dismissal of Special Appeal and Permission Appeal Regarding Petition for Provisional Disposition Order for Issuance of Stock Acquisition Rights" Bull-Dock Source August 2007, 8
  21. ^ "Notice Concerning (Partial) Acquisition of Stock Acquisition Rights of the Company" Bull-Dock Source Co., Ltd. July 19, 7
  22. ^ http://www.investopedia.com/terms/w/whiteknight.asp DEFINITION of'White Knight'
  23. ^ "Pentel stock hostile takeover did not reach the majority of the target, KOKUYO struggled plus and scrambled (Fuji TV (FNN))”(Japanese). Yahoo! News. October 2019th, 12Browse.
  24. ^ "KOKUYO fails in hostile takeover of Pentel, does not reach majority of shares (Asahi Shimbun Digital)”(Japanese). Yahoo! News. October 2019th, 12Browse.
  25. ^ "Plus, acquired 30% of Pentel shares (Kyodo News)”(Japanese). Yahoo! News. October 2019th, 12Browse.
  26. ^ Stock acquisition right issuance injunction provisional disposition decision Conservation appeal decision against approval decision July 17, 3 Tokyo High Court 23th Civil Affairs Department Court Official
  27. ^ "Guidelines for takeover defense measures to secure or improve corporate value and common interests of shareholders" Ministry of Economy, Trade and Industry / Ministry of Justice May 2005, 5, see page 27 (15)
  28. ^ a b c d e f g h i Shinro Kato 2018, pp. 5–6
  29. ^ a b "What is an M & A advisor?”. Japan M & A Advisor Church. October 2016th, 7Browse.[Broken link]
  30. ^ Qualification summary (Viewed on November 2016, 7).
  31. ^ “Reason for successive IPOs of M & A intermediaries”. New switch(July 2016, 6). http://newswitch.jp/p/5162 October 2016th, 7Browse. 
  32. ^ a b c d "Forefront of M & A (1)”. TMI Associates (October 2020, 10). October 2021th, 8Browse.
  33. ^ a b "Immediately after passing, I opened an office centered on corporate legal affairs and passed at Ito Juku, which really expanded the world.". October 2016th, 7Browse.[Broken link]
  34. ^ Ask an accountant who is active in practice(Retrieved July 2016, 7)
  35. ^ a b c Nobutatsu Hattori, "Practical M & A Management," Toyo Keizai, 2004, p. 119.
  36. ^ a b Nobutatsu Hattori, "Practical M & A Management," Toyo Keizai, 2004, p. 120.

References

  • Yasuhiro Wakebayashi, "Thorough Utilization of M & A for Small and Medium Enterprises" (latest version) PHP Institute, 2011.ISBN 9784569800257. 
  • Mori Hamada & Matsumoto Law Office "M & A Hosei University" Yuhikaku Publishing Co., Ltd., 2015.ISBN 978-4-641-13698-4.
  • Masao Kato "Viewpoints and Practices of Lawyers and Certified Accountants M & A of Small and Medium-sized Enterprises" Nihon Kajo Shuppan, 2018.ISBN 978-4-8178-4508-5.

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