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Chambers Global Practice Guides Corporate M&A Japan 2017

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Chambers Global Practice Guides Corporate M&A Japan 2017 CHAMBERS Global Practice Guides JAPAN Corporate M&A LAW & PRACTICE: p.3 ContributedContributed by Mori Hamada by & Matsumoto MoriThe Hamada‘Law & Practice’ & Matsumoto sections provide easily accessible information on navigating the legal system when conducting business in the jurisdic- tion. Leading lawyers explain local law and practice at key transactional stages and for crucial aspects of doing business. DOING 2017BUSINESS IN JAPAN: p.283 Chambers & Partners employ a large team of full-time researchers (over 140) in their London office who interview thousands of clients each year. This section is based on these interviews. The advice in this section is based on the views of clients with in-depth international experience. JAPAN LAW & PRACTICE: p.3 Contributed by Mori Hamada & Matsumoto The ‘Law & Practice’ sections provide easily accessible information on navigating the legal system when conducting business in the jurisdic- tion. Leading lawyers explain local law and practice at key transactional stages and for crucial aspects of doing business. LAW & PRACTICE JAPAN Contributed by Mori Hamada & Matsumoto Authors: Hajime Tanahashi, Takayuki Kihira, Kenichi Sekiguchi, Akira Matsushita Law & Practice Contributed by Mori Hamada & Matsumoto CONTENTS 1. Trends p.5 6.6 Additional Governance Rights p.12 1.1 M&A Market p.5 6.7 Voting by Proxy p.12 1.2 Key Trends p.5 6.8 Squeeze-Out Mechanisms p.12 1.3 Key Industries p.5 6.9 Irrevocable Commitments p.12 2. Overview of Regulatory Field p.5 7. Disclosure p.13 2.1 Acquiring a Company p.5 7.1 Making a Bid Public p.13 2.2 Primary Regulators p.5 7.2 Types of Disclosure p.13 2.3 Restrictions on Foreign Investment p.5 7.3 Requirement for Financial Statements p.13 2.4 Antitrust Regulations p.6 7.4 Disclosure of the Transaction Documents p.13 2.5 Labour Law Regulations p.6 8. Duties of Directors p.14 3. Recent Legal Developments p.6 8.1 Principal Directors’ Duties p.14 3.1 Significant Court Decisions or Legal 8.2 Special or Ad Hoc Committees p.14 Developments p.6 8.3 Business Judgement Rule p.14 3.2 Significant Changes to Takeover Law p.7 8.4 Independent Outside Advice p.14 4. Stakebuilding p.8 9. Defensive Measures p.14 4.1 Principal Stakebuilding Strategies p.8 9.1 Hostile Tender Offers p.14 4.2 Material Shareholding Disclosure Thresholds p.8 9.2 Directors’ Use of Defensive Measures p.15 4.3 Hurdles to Stakebuilding p.8 9.3 Common Defensive Measures p.15 4.4 Dealings in Derivatives p.8 9.4 Directors’ Duties p.15 4.5 Filing/Reporting Obligations p.8 9.5 Directors’ Ability to “Just Say No” p.15 5. Negotiation Phase p.8 10. Litigation p.15 5.1 Requirement to Disclose a Deal p.8 10.1 Frequency of Litigation p.15 5.2 Market Practice on Timing p.9 10.2 Stage of Deal p.16 5.3 Scope of Due Diligence p.9 11. Activism p.16 5.4 Standstills or Exclusivity p.9 11.1 Shareholder Activism p.16 5.5 Definitive Agreements p.9 11.2 Aims of Activists p.16 6. Structuring p.9 11.3 Interference with Completion p.16 6.1 Length of Process for Acquisition/Sale p.9 6.2 Mandatory Offer Threshold p.10 6.3 Consideration p.11 6.4 Common Conditions for a Takeover Offer p.11 6.5 Minimum Acceptance Conditions p.11 3 JAPAN LAW & PRACTICE Contributed by Mori Hamada & Matsumoto Authors: Hajime Tanahashi, Takayuki Kihira, Kenichi Sekiguchi, Akira Matsushita Mori Hamada & Matsumoto’s corporate M&A team con- pany and private equity and venture capital transactions, sists of approximately 40 partners and 80 associates. The friendly and hostile transactions, going-private transac- majority of the team is based at the main office in Tokyo, tions, MBOs, acquisition finance and takeover strategies. In although there are M&A team members at the domestic recent years, the firm has been particularly active in cross- branch offices in Osaka, Nagoya and Fukuoka, as well as border transactions between Japan and South and South- at the international branch offices in Singapore, Shanghai, East Asian countries. Beijing, Bangkok, Yangon and Jakarta. The firm has a full- The firm’s M&A lawyers often team up with lawyers with service M&A practice that handles mergers, acquisitions, expertise in other key practice areas in order to assist with restructurings and corporate alliances in a wide variety of M&A transactions involving distressed or insolvent compa- industries and sectors, including both domestic and cross- nies, as well as M&A-related litigation and arbitration. border transactions (inbound and outbound), listed com- Authors Hajime Tanahashi is a partner in the firm Kenichi Sekiguchi is a partner and and has great expertise in corporate, practises in M&A, and general corporate M&A, private equity, venture finance and matters, including corporate litigations corporate governance. Tanahashi has also regarding M&A transactions. He focuses represented various domestic and interna- particularly on transactions involving tional private equity funds. He is the conflicts of interests such as management author of several publications, including ‘Private Equity in buyouts. He was admitted to the Bar in Japan in 2005 and Japan: Market and Regulatory Overview’ (co-authored), in New York in 2011. His contributions to legal publica- ‘Comprehensive Analysis of M&A Laws of Japan’ (co- tions include ‘Doing Business in Japan’ (co-authored), authored) and ‘Cross-Border M&A: Laws, Regulations and ‘Comprehensive Analysis of M&A Laws of Japan’ (co- Practical Considerations’. Tanahashi is a lecturer at Kyoto authored) and ‘Enterprise Law: Contracts, Markets, and University School (2007-), and is a director and member of Laws in the US and Japan’ (co-authored). the Industrial Innovation Committee, Innovation Network Corporation of Japan (2009-). He was admitted to the Bar Akira Matsushita is a partner and has in Japan in 1992 and in New York in 1997. expertise in cross-border/domestic M&A, corporate governance, takeover defence Takayuki Kihira is a partner and has and general corporate and securities law experience of M&A, corporate and matters. He has advised many listed securities laws. In particular, he has companies that have been subject to extensive experience in cross-border M&A shareholder activism and a hostile takeover, including a transactions and frequently represents proxy fight. He was admitted to the Bar in Japan in 2006 international clients. He was admitted to and in New York in 2013. Matsushita has published the Bar in Japan in 2001 and in New York in 2007. He has ‘Comprehensive Analysis of M&A Laws of Japan’ (co- authored several publications, including ‘Comprehensive authored), ‘Reconsideration of Regulations for Proxy Analysis of M&A Laws of Japan’ (co-authored), ‘Cross- Solicitation (Volumes 1 and 2) - Based on Proxy Regula- Border M&A: Laws, Regulations and Practical Considera- tion in the US’ and ‘Shareholders’ Proposal and Proxy tions’ and ‘Corporations and Partnerships in Japan’. Fight’ (second edition). 4 LAW & PRACTICE JAPAN Contributed by Mori Hamada & Matsumoto Authors: Hajime Tanahashi, Takayuki Kihira, Kenichi Sekiguchi, Akira Matsushita 1. Trends vided in the FIEA (see a more detailed description of the “One-Third Rule” and other rules in6.2 Mandatory Offer 1.1 M&A Market Threshold). The M&A market in Japan continued to grow in 2015. The number of transactions increased by 6.3% from 2014, which A share acquisition may also be made by a “share exchange”, represents an increase for four consecutive years, and the one of the statutory business combinations, whereby an ac- value of transactions increased 68.3% from 2014. The reason quiring company can acquire 100% of the shares of a target for the significant increase in value is the increased value of company upon a two-thirds shareholder vote. A share ac- outbound transactions (a 93.9% increase from 2014), includ- quisition may also be made through a subscription of shares ing Tokio Marine’s acquisition of HCC Insurance Holdings issued by a target company. Generally, a listed company can and Itochu’s investment in CITIC Limited. As for domestic issue shares by a board resolution unless (i) the issue price transactions, both the number and the value increased – by is a deep discount from the market price or (ii) after the is- 6.7% and 47.1% respectively – during 2015. suance, the total outstanding shares exceed the authorised number of shares provided for in its articles of incorporation 1.2 Key Trends (see a discussion of certain new shareholders’ rights under After the peak in the Japanese M&A market in 2006, both the amended Companies Act in 3 Recent Legal Develop- in transaction numbers and values, the market suffered a ments). Even if the board approves an issuance that results downward trend until 2011, but began to pick up in 2012. in an acquirer holding a majority of the shares of the target It appears that growth will continue, given the desire of company, the acquirer is not required to offer to purchase corporate management in many Japanese companies to in- shares from the minority shareholders. crease their domestic market share and seek opportunities for growth outside the country. A business (asset) acquisition is generally conducted through either (i) a contractual buy-sell agreement or (ii) a statutory 1.3 Key Industries company split, which is a statutory spin-off procedure. Third In Japan, M&A activity is being seen in a wide range of party consents are required to effect a contractual business industries, including consumer goods, financial sectors, acquisition – for example, consents from counterparties chemical and electronics.
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